Nutley Sun Printing Co., Inc.

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REPORT ON ORDER REMANDING PROCEEDING TO REGIONAL DI- RECTOR FOR STIPULATION OF FACTS OR FOR FURTHER HEARING The Board's Order opens: On January 11, 1960, Trial Examiner Louis Plost issued an Intermediate Report in the above-entitled proceding in which he concluded that the Respondent is engaged in commerce within the meaning of the Act. The Respondent filed an exception thereto. The Board having duly considered the matter. IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is, reopened and that a further hearing be held before Trial Examiner Louis Plost for the purpose of receiving additional evidence on the question of the Board's statutory jurisdiction; 1 Pursuant to notice a hearing on the Board's Order was held before Trial Examiner Louis Plost at Philadelphia, Pennsylvania, on April 20, 1960. The parties were all represented by counsel, herein referred to in the names of their principals. The parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to argue orally, and to file briefs and/or proposed findings of fact and conclu- sions of law with the Trial Examiner. Oral argument was presented by the General Counsel. The parties all waived the right to file briefs. George C. Pusey the Respondent's president and general manager, testified that: During fiscal year 1959, the Respondent's total sales were $1,563,093.90; it shipped goods from its plant at Avondale, Pennsylvania, to points located outside the Com- monwealth of Pennsylvania having a dollar value of approximately $70,000; and it brought goods from outside Pennsylvania for use in Pennsylvania, having a dollar value in excess of $50,000. In his oral statement the General Counsel pointed out that the transcript of the original hearing 2 contained 10 references to shipments made by the Respondent from Pennsylvania to points outside the State, or vice versa, citing page references in the original transcript. Upon the entire record in the case the Trial Examiner finds that: The Respondent is a corporation, duly organized and existing by virtue of the laws of the State of Delaware, and maintains its principal place of business at Avondale, Pennsylvania, where it is engaged in the retail sale of ice, coal, feed, fertilizers, lumber, and building materials. During the calendar year 1959 the Respondent's gross volume of business was $1,563,093.90 of which approximately $70,000 in value was shipped to points outside Pennsylvania, and in excess of $50,000 in value came to it from outside Pennsylvania. Respondent has been at all times herein mentioned, and is now, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I The above-quoted language can leave the impression that the Respondent filed objec- tions to the "commerce" findings made by the Trial Examiner in his original report. The Trial Examiner respectfully points out that such an impression would be erroneous. As found in the original report the Respondent stipulated the "commerce" facts and further that it was engaged in commerce within the meaning of the Act In its exceptions to the Trial Examiner's original report the Respondent did not raise any jurisdictional question. The question of jurisdiction is raised by the Board under its ruling in James D. Jackson, d/b/e Jackson's Party Service, 126 NLRB 875. 2 This transcript consisted of 85 pages. Nutley Sun Printing Co., Inc., Frank Orechio and Wall Street Printing and Stationery Corp . and Newark Typographical Union Local No. 103. Case No. AO-10. July 1/f, 1960 ADVISORY OPINION This is a petition filed by Newark Typographical Union Local No. 103, herein called the Petitioner, pursuant to Section 102.98 of the Board's Rules and Regulations, praying for an advisory opinion as 128 NLRB No. 13. NUTLEY SUN PRINTING CO., INC., ETC. 59 to whether it would assert jurisdiction over the operations of Nutley Sun Printing Co., Inc., Frank Orechio, and Wall Street Printing and Stationery Corp., herein called the Employer, on the basis of its cur- rent jurisdictional standards. It appears from said petition that : 1. The Petitioner and nine of its members are plaintiffs in a civil action presently pending in the Superior Court of New Jersey docket No. C-1378-59 against the Employer. Said action demands judgment, ordering the Employer to reinstate and reemploy the nine individual plaintiffs with backpay and full seniority rights. 2. The Employer is engaged in the printing and publishing of a newspaper and other types of printing. 3. Although the complaint in the State court action does not set forth any commerce data, the Petitioner alleges that the gross volume of the Employer's business is less than $200,000 per year; that the Employer has neither admitted nor denied this commerce data; and that the State court has not made any finding on this question. 4. In Cases Nos. 22-CA-513 and 22-CA-514, the nine individual plaintiffs filed with the Board unfair labor practice charges against the Employer alleging violations of Section 8(a) (1) and (3) of the National Labor Relations Act. These unfair labor practice charges were dismissed on November 19, 1959, by the Regional Director be- cause it would not effectuate the purposes of the Act to assert juris- diction. No appeal was taken from the dismissal. 5. No response to the petition herein has been received from the Employer. On the basis of the above, the Board is of the opinion that : 1. The Employer is engaged in publishing a newspaper and its annual volume of business is less than $200,000. There is no showing that Employer holds membership in or subscribes to interstate news services, or publishes nationally syndicated features, or advertises nationally sold products. 2. Under its current standard the Board will assert jurisdiction over newspaper companies which hold membership in or subscribe to inter- state news services, or publish nationally syndicated features, or ad- vertise nationally sold products, if the gross volume of business of the particular enterprise involved amounts to $200,000 or more per annum. Belleville Employing Printers, 122 NLRB 350; Knoxville News-Sentinel Company, Inc., 125 NLRB 672, Case No. AO-1. Accordingly, the parties are advised, pursuant to Section 102.13 of the Board's Rules and Regulations, that : 1. The Board would not assert jurisdiction on the facts submitted herein because the Employer's operations do not satisfy the Board's standard for asserting jurisdiction over newspaper companies. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Board expresses no opinion as to whether it would render a decision on the merits of the controversy which is the subject of the State court action. McCarthy Enterprises , Inc., t/a Community Motors and Local 401, International Brotherhood of Teamsters, Chauffeurs,. Warehousemen and Helpers of America, Independent, Peti- tioner. Case No. 4-RC-4163. July 15, 1960 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 Joseph F. Rosenthal, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 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 commrece 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. In agreement with the stipulation of the parties, and our resolu- tion below of the sole dispute between them over the unit placement of the service expeditor,2 we find the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All auto mechanics, body repair men, lubrication men, the car jockey, used car lot attendant, car washer, underseal man, used car mechanic, used car reconditioner, parts clerk, and service expediter at the Em- 'The Employer stipulated that it is in the retail trade ; its gross volume of business in 1959 was $1,000,000, and it purchased new automobiles in 1959 from outside the State of Pennsylvania in the amount of $798,000 In view of the foregoing and contrary to the assertion of the Employer, we find that it is engaged in commerce within the mean- ing of the Act and that it would effectuate the policies of the Act to assert jurisdiction herein. Carolina Supplies and Cement Co, 122 NLRB 88. 2 The Petitioner, contrary to the Employer , would exclude the service expediter as supervisory The record shows that this employee works in the service department under the service manager and that his duties involve assisting the service manager in writing up orders , delivering job orders to the mechanics , and doing miscellaneous simple repair work in the shop . There is no evidence that the service expediter has any authority to hire, fire, discipline employees, or effectively to recommend such action . In view of the foregoing, we find that the service expediter is not a supervisor, and we shall include him in the unit. 128 NLRB No. 8.