F. M. Reeves and Sons, Inc.

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 2 (11) of the Act. Because of his supervisory status, we further find that under settled law the Petitioner is dis- qualified from filing the decertification petition? Accordingly, we grant the Union's motion and dismiss the petition herein.' [The Board dismissed the petition.] 2 Clyde J. Merris, 77 NLRB 1875; Doak Aircraft Co., Inc., 107 NLRB 924. As group leaders are supervisors within the meaning of the Act, we find that they are no longer appropriately a part of the counters' unit. 3 In view of the disposition of this case, the Board does not rule upon the Union's other contentions. F. M. REEVES AND SONS, INC.' and CHAUFFEURS, TEAMSTERS AND HELP- ERS, LOCAL UNION 492, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONER. Case No. 33-RC-487. January 11, 1955 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Byron E. Guse, hear- ing 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 that it will not effectuate the policies of the Act to assert jurisdiction for the reasons stated below : The Employer is a Texas corporation, with its principal office located in Pecos, Texas. It produces and mines sand, gravel, and concrete aggregate, and sells ready-mixed concrete. The only plant involved in this proceeding is the Employer's operation located at Roswell, New Mexico. During the period of a year ending before the hearing, only the Employer's Pecos, Texas, operation made sales outside the State of its location. These out-of-State sales amounted to approximately $15,700. In the same period, the Roswell, New Mexico, plant purchased goods shipped from outside the State of New Mexico in the sum of approximately $135,300. Freight charges on these goods amounted to about $90,000. All of the Roswell plant's annual sales of about $553,400 were to customers within the State of New Mexico; of this total, about $141,800 represented sales to con- tractors building and repairing streets and parts of highways in and near Roswell, and about $83,500 was in sales to contractors for con- struction and repair work at the Walker Air Force Base. The Employer contends that it is not engaged in commerce within the meaning of the Act. Practically all of its sales are to within-the- I The Employer's name appears as amended at the hearing. 111 NLRB No. 25. F. M. REEVES AND SONS, INC. 187 State consumers. As noted, a portion of the Employer's sales, over $100,000 but less than $200,000 in value, are to contractors building and repairing roads. These contractors are only engaged in within-the- State business. The Board has recently decided 2 that materials fur- nished by a quarrying and rock crushing company to a railroad artery of interstate commerce are not "directly utilized" in the operation of the railroad, and therefore, for such a materials transaction, the ap- plicable volume test established in the Jonesboro 3 decision is $200,000. Similarly here, the road materials sold by the Employer are not directly utilized in the operational or functional use of roads. There- fore, as the value of the materials which the Employer furnished for highway construction and repair is less than $200,000, such sales are not sufficient to warrant assertion of the Board's jurisdiction.4 Fur- thermore, we find that neither the Employer's operations as a multi- state enterprise 5 nor its operations affecting the national defense 6 are sufficient to justify assertion of our jurisdiction in this case. Accord- ingly, we shall dismiss the petition.' [The Board dismissed the petition.] MEMBER MURDOCK, concurring : Initially, I would have thought that the Employer's operations here met one of the new Jonesboro tests for the assertion of jurisdiction. The Employer sold over $100,000 worth of sand, gravel, or ready-mixed concrete to contractors which was used in the paving and construction of streets and roads which are part of the State highway system. The Jonesboro test still provides for the assertion of jurisdiction over "an enterprise which furnishes goods or services to . . . instrumentalities or channels of commerce...." If the goods or services are "directly utilized" in the "products, services, or processes of such enterprises," they need only be valued at $100,000-otherwise $200,000. The Board, under the old Hollow Tree standard took jurisdiction over firms such as this Employer when they supplied materials used on State highway systems (then in an amount of $50,000) such highway systems being treated as "instrumentalities of commerce." I would have thought that such things as ready-mixed concrete used in roadbuilding are inescapably "directly utilized" in the highway, and that the $100,000 test would therefore apply. However, my colleagues say the road materials are not "directly utilized" in the "operational or functional use of roads" so the $200,000 test is applicable and is not 2 In G C McBride Company, 110 NLRB 1255. Jonesboro Grain Drying Cooperative, 110 NLRB 481. Ibid Ibid. e Maytag Aircraft Corp., 110 NLRB 594. 7 Member Peterson, who dissented in the Jonesboro and Maytag cases cited , considers himself bound by the majority decisions therein. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD met. The latter phrase is not one taken from the standards and I also have some doubts that the statement is true. Nevertheless, my col- leagues are unquestionably the authority on the meaning of standards which they framed over my dissent, and unless some compelling rea- son to the contrary appears, I am not disposed to dispute their inter- pretation of the meaning of phrases like "directly utilized" in the stand- ards. If, as has been said, crushed stone furnished for the railroad roadbeds is not "directly utilized" in the operations of a railroad, the holding here is consistent with that. Under the circumstances I ac- quiesce in the decision. COMFORT SLIPPER CORPORATION 1 and UNITED SHOE WORKERS OF AMERICA, CIO, PETITIONER . Case No. 1-RC775. January 12, 1955 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Francis Paone, hear- ing 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 organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all production em- ployees of the Employer, excluding maintenance, shipping, receiving, and office clerical employees, guards, and supervisors. The Employer would include the maintenance, shipping, and receiving employees, as well as the seasonal employees as to whom the Petitioner took no po- sition, but otherwise agrees with the Petitioner's request. The Employer manufactures shoes at Fitchburg, Massachusetts. Its manufacturing operations are all located in a plant located on River Street, and in addition, it has a warehouse located on Nocket Street, about one-half mile from the plant, where raw materials and finished shoes are stored. All production employees are located at the River Street plant. 1 The name of the Employer appears as amended at the hearing 2 After the close of the hearing, the Employer filed a "Motion to Incorporate Affidavit in Record " In view of our findings herein we find it unnecessary to pass upon this motion. 111 NLRB No. 29.