S. G. Tilden, Inc., et als

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chester County, and Northern New Jersey down to Perth Amboy, excluding the assistant sales manager, office and clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. MEMBER RODGERS, dissenting : The question of whether the Employer's New York metropolitan area salesmen constitute an appropriate unit was presented to the Board approximately 3 years ago. The Board then decided that they did not, holding that the appropriate unit was one consisting of all the Employer's outside salesmen.' Since the prior proceeding, the only changes in the Employer's operations have been that a territory in California has been opened, and the total complement of salesmen has been increased from ap- proximately 26 to 50. I perceive nothing in these changes warranting a reversal of the Board's previous holding; if anything, they supply additional reasons for adhering to it. All the factors that induced the earlier decision are still present, particularly "the direct supervision and control of all the salesmen by the sales manager, [and] the simi- larity of working conditions and rates of pay of all salesmen." 2 The earlier Board decision cannot be said to have been erroneous; indeed, my colleagues apparently recognize its soundness by pointing to the fact that the centralized nature of the Employer's operations "tend to support the position of the Employer that a nation-wide unit may be appropriate." In the absence, therefore, of any showing that the circumstances involved have changed, I perceive no reason for re- versing a decision concerned with the appropriateness of a particular unit that is patently not a "wrong" one. In my opinion, having previously litigated this question, the parties are entitled to rely on the prior determination unless it can be shown that the circumstances have materially changed, or that the prior deci- sion was erroneous. ' Buitont Maoaronrt. Corp., 98 NLRB 359 (decided February 21, 1952). ' Id. at 360. S. G. TILDEN, INCORPORATED, ET ALS and DISTRICT 15, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, AND LOCAL 917, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, JOINT PETITIONERS. Case No. 2-RC-7046. February 16,1955 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John J. Carmody, hearing 111 NLRB No. 109. S. G. TILDEN, INCORPORATED 641 officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The record shows that the Petitioners filed a representation petition with the New York State Labor Relations Board, seeking to represent the shop employees at the Employer's six shops located in New York City and its suburbs. The reason for bringing the proceeding in the State Board was that Petitioners believed this Board would not assert jurisdiction under the Board's recent jurisdictional policy. After certain financial information was filed with the State Board, the lat- ter inquired of the Second Regional Office of this Board, as to whether the Federal Board would assert jurisdiction under its new policy. After being advised that sufficient doubt existed concerning the juris dictional issue to warrant a hearing, the State Board ruled that the petition would be held in abeyance pending determination of this Board. In the present proceeding, the Petitioners contended at the hearing that the commerce facts with respect to the Employer's business do not warrant the assertion of jurisdiction. The Employer, on the other hand, asserts that the jurisdictional requirements are satisfied and that the Board should proceed under the instant petition. The Employer, which is engaged in the specialized business of re- lining brakes in automobiles and trucks, has its main shop and office in Brooklyn, New York. The Employer's operations cover 6 shops in Brooklyn and Long Island and 5 shops in New Jersey and Connecti- cut. The Employer does no retail store business, but specializes en- tirely in brake services. During the year 1954, the Employer pur- chased supplies valued at $300,000, of which 40 percent came from points outside the State of New York. The parties stipulated after the hearing that the gross annual sales for the chain during the past year was in excess of $1,000,000. The evidence shows that for the fis- cal year ending December 31, 1953, parts and materials valued at some $83,454 were shipped to out-of-State shops from the Employer's Brooklyn warehouse. The Employer contends that the record shows a direct outflow of more than $50,000 from the group of New York shops, sufficient to satisfy the standards for asserting jurisdiction over manufacturing enterprises under the .Jonesboro decision.' It appears, however, that the Employer is not a manufacturer,' but is primarily a multistate service organization and governed by the jurisdictional standards set forth in the Hogue c6 Knott case.' 'These standards require for the 1 Jonesboro Grain Drying Cooperative, 110 NLRB 481. 2 Although the Employer reconditions certain parts such as brake shoes, it does not manufacture anything. 3 J R. Knott & Hugh R. Hogue, et al., 110 NLRB 543. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assertion of jurisdiction over a chain of retail stores or service estab- lishments, that the entire chain have a gross annual sales volume of at least $10,000,000 or that the individual store or establishment com- prising integral parts of the chain have an annual direct inflow of $1,000,000, or an annual indirect inflow of at least $2,000,000, or an annual direct outflow of at least $100,000. In the present instance, the record discloses that the entire chain of the Employer's operations does not have a gross annual sales vol- ume of $10,000,000. Moreover, assuming arguendo that the six New York shops constitute an "individual establishment" and that the shipments from the Brooklyn warehouse to out-of-State points may be regarded as direct outflow from the New York shops, it is undis- puted that the claimed outflow from the New York warehouse falls below the $100,000 requirement of direct outflow for an "individual establishment." 4 Accordingly, we find that it will not effectuate the policies of the Act to assert jurisdiction in the present proceeding.' We shall therefore dismiss the petition. [The Board dismissed the petition.] 4 Although the Employer 's representative testified that there was a possibility that the shipments by the New York warehouse might exceed $100,000 in 1954, he also doubted whether this would be the case. As such possibility is entirely speculative , it cannot be considered for jurisdictional purposes. 6 See Clagey's Beauty Shoppes, 110 NLRB 620 ; Fetsway Shoe Corporatwn, et at., 110 NLRB 1914. TRUTH TOOL COMPANY and JOE F. BATSON, ET AL., PETITIONER and LOCAL 142, INTERNATIONAL MOLDERS & FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL. Case No. 18-UD-4. February 8, 1955 Decision and Certification of Results of Election On November 17, 1954, a petition was filed by Joe F. Batson and Louis M. Jenson pursuant to Section 9 (e) (1) of the National Labor Relations Act, seeking to withdraw the union-shop authority of Local 142, International Molders & Foundry Workers Union of North Amer- ica, AFL, herein called the Union. On December 10, 1954, the Union moved to dismiss the petition; which motion the Regional Director denied. On December 16, 1954, the Regional Director for the Eight- eenth Region conducted an election among the production and main- tenance employees of the Employer at its plant located in Mankato, Minnesota. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the Rules and Regulations of the Board. 111 NLRB No. 93.