J. S. Latta & Son

National Labor Relations Board - Board Decisions

Nov 30, 1955

114 N.L.R.B. 1248 (N.L.R.B. 1955)

1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. S. Latta & Son and General Drivers Union Local No. 650,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , A. F. of L., Petitioner.
Case No. 18-RC--614. November 30, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act,, as amended, a hearing was held before Clarence A.
Meter, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is an Iowa corporation with its place of business
in Cedar Falls where it is engaged in the sale of school and office
supplies and equipment. During the past fiscal year, the Employer
made purchases from sources directly outside the State of Iowa in
an amount approximating $650,000. During the same period, net
sales amounted to $885,000, of which approximately $85,000 repre-
sents sales made to points outside the State.
The record discloses that approximately 80 percent of the Em-
ployer's net sales is made to public school districts and consists of such
items as desks, writing equipment, bleachers, furniture, and labora-
tory equipment. The remaining sales are made to individuals or
office concerns. The sales are made either through the medium of
over-the-counter transactions or through solicitation by salesmen or
by catalog. Discounts are afforded for volume purchases whether
made over-the-counter or by solicitation. Of the net sales, approxi-
mately $25,000 represents sales to customers of merchandise which the
-customers in turn resell.
The Employer contends that it is involved in a retail sales operation
and that the Board's retail standard for asserting jurisdiction should
be applied. It therefore argues that the Board should decline to
assume jurisdiction over it because the foregoing annual dollar vol-
umes of direct out-of-State sales and direct out-of-State purchases do
not satisfy the retail jurisdictional minima of $100,000 and $1,000,000
respectively.' We do not agree that the Employer's enterprise is
retail in character.
In Roland Electrical Company v. Walling,' the Supreme Court, in
considering whether a firm which serviced and. sold electrical equip-
ment to industrial consumers was a "retail" or "service" establish-
ment within the intendment of the Fair Labor Standards Act, ex-
amined and set forth the various criteria for distinguishing between
1 The retail establishment jurisdictional standard is set forth in Hogue and Knott
Supermarkets, 110 NLRB 543.
9 326 U. S. 657.
114 NLRB No. 192.
J. S. LATTA & SON 1249
"wholesale,'.' from "retail" operations. In doing so, the Court noted
that retail sales include sales to a purchaser who desires "to satisfy his
own personal wants or those of his family or friends," 3 while whole-
sale sales constitute "sales of goods or merchandise `to trading estab-
lishments of all kinds, to institutions, industrial, commercial, and
professional users, and sales to governmental bodies.' 114 [Emphasis
supplied.]
In view of the criteria set forth above, the volume of supplies and
equipment purchased by the public school districts, and the institu-
tional use to which such commodies are put, we conclude that the
Employer's business operation is nonretail in character and that the
nonretail standard for the assertion of jurisdiction set forth in Jones-
boro Grain Drying Cooperative 5 should be applied herein. Accord-
ingly, as the Employer annually ships more than $50,000 worth of
goods outside the State of Iowa and annually makes purchases in
excess of $500,000 from sources directly outside of that State, we find
that the Employer is engaged in commerce and that it will effectuate
the policies of the Act to assert jurisdiction over it.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The parties agree that a unit of all warehouse and regular part-
time employees at the Employer's establishment in Cedar Falls, Iowa,
including the truckdriver, receiving clerk, order checkers, packing and
shipping department employees, and clerks and order pickers, but
excluding office clerical employees, salesmen, and supervisors, is ap-
propriate. They disagree as to the unit placement of a part-time
janitor. The Petitioner contends that this employee should be ex-
cluded, while the Employer contends for his inclusion.
The record reveals that the part-time janitor, who regularly works
from 15 to 18 hours per week, performs sweeping and cleaning duties
and also tends the fire boiler. He receives the same benefits as the
other employees in the unit with the exception that, in some instances,
those benefits are prorated because of the part-time nature of his em-
ployment. In view of the foregoing and the entire record in this
proceeding, we find that the janitor is a regular part-time employee
whose duties and interests are sufficiently related to those of the other
employees in the unit to warrant his inclusion therein.'
Accordingly, we find that all warehouse and regular part-time em-
ployees at the Employer's establishment in Cedar Falls, Iowa, includ-
8 Ibid ., at p. 675
* Ibid., at p 674
6110 NLRB 481
6 See Beatruee Foods Co 112 NLRB 459.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the truckdriver, receiving clerk, order checkers, packing and ship-
ping department employees, clerks and order pickers, and the janitor,
but excluding' office clerical employees, salesmen, and all supervisors
as defined in the Act, constitute a unit appropriate.for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]'
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.
The Union Forging Company and Endicott Die Sinkers' Lodge
#190, International Die Sinkers' Conference, Independent,
Petitioner. Case No. 3-RC-1562. November 30, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Thomas H. Ramsey,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby -affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. The Employer and Intervenor request that the present petition
be dismissed on the ground that the petition is premature inasmuch
as Petitioner's claim for recognition was made and its petition was
filed 3 months before the anniversary date of their contract. The
Employer also moves that the petition be dismissed on the ground
that it was filed within 1 year after the Board's certification of the In-
tervenor as exclusive bargaining representative for a unit of the Em-
ployer's production and maintenance employees.
The Intervenor was certified as bargaining representative for a unit
of the Employer's production and maintenance employees on July
7,1954 .3 Thereafter, on October 20, 1954, the Employer and the In-
tervenor executed a contract to run until September 15, 1955, and from
year to year thereafter, absent written notice by either party ".
1 The hearing officer referred to the Board motions by the Employer and the • Inter-
national Brotherhood of Boiler Makers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL, herein called the Intervenor, to dismiss the instant petition on grounds of
contract bar and on the ground that the petition was filed within a year from the date
that the Board certified the Intervenor as bargaining representative of the Employer's
employees. For reasons stated in paragraph 3, infra, these motions are hereby, denied.
2 The Intervenor was allowed to intervene in this proceeding on the basis of its con-
tractual interest.
3 Case No. 3-RC-1421 (not reported in printed volumes of Board Decisions and Orders).
114 NLRB No. 190.