Cemetery Service Corp.

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accordingly, determine the instant jurisdictional dispute by deciding that laborers, rather than plumbers, are entitled to the work in -dispute. In making this determination, we are assigning the work to the employees who are represented' by the Laborers but not to that Union or its members. Determination of Dispute Upon the basis of the foregoing findings and the entire record in this proceeding, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. The laborers employed by Bellezza Company, 'Inc., who are represented by Local 472, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, are entitled to perform the disputed work of installing nonmetallic outside sanitary and storm sewers, in connection with the site development project identified as the Central Maintenance Facility and Garage, Route 440, Jersey City, New Jersey. 2. Local 69, United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Company to assign the above-described disputed work to plumbers. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 69, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, shall notify the Regional Director for Region 22, in writing, whether it will or will not refrain from forcing or requiring the Company, by means proscribed by Sec- tion 8(b) (4) (D), to assign the work in dispute to plumbers rather than laborers. Cemetery Service Corporation (Parkview and Springdale Ceme- teries) and Teamsters, Chauffeurs and Helpers Local Union No. 627, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Petitioner. Case No. 1-50-RC-1001. November 9, 1964 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 Hearing Officer Samuel Jacobson. The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. -- 149 NLRB No. 58. CEMETERY SERVICE CORPORATION, ETC. 605 Upon the entire record 1 in this case, the Board' finds : 1. The Employer 3 contends that the Board should not assert jurisdiction on the grounds that it does not meet the jurisdictional standard for retail operations, that the nonretail standard is not applicable because its nonretail operations are de minimis, and that, in any event, it does not meet such standard. The Employer operates two cemeteries known as Parkview and Springdale, sells and installs grave monuments, and operates a florist business, all in Peoria, Illinois, and vicinity. During the year 1963, the Employer's gross income from its operations was $410,585. Of this amount, $2,040 resulted from the sale of flowers to florists and of monument foundations to monument companies, and $12,295 represented income from the manufacture and retail sale of animal coffins and grave blankets and from the sale and installation of coffin containers to mortuaries. The parties agree that the $2,040 was nonretail income, but disagree as to the $12,295, the Employer contending that it was retail income. The parties agree, and we find, that the Employer's operations do not meet the Board's $500,000 gross income standard for the asser- tion of jurisdiction over retail enterprises .4 However, the Board has held that where, as here, an employer is engaged in combina- tion retail and nonretail operations, the Board's nonretail standards will be applied if the employer's, income from such operations The Employer submitted a motion to strike brief of Petitioner on the ground that the Petitioner , without special permission of the Board , had filed with the Board a brief dif- ferent from the one it had filed with the Regional Director. The Petitioner opposed the motion This case was transferred to the Board after the parties had filed briefs with the Regional Director . Section 10207 ( 1) of the Board's Rules and Regulations , Series 8, as amended, provides as follows: If any case is transferred to the Board for decision after the parties have filed briefs with the regional director, the parties may, within such time after service of the order transferring the case as is fixed by the regional director, file with the Board seven copies of the brief previously filed with the Regional Director. ... No further briefs shall be permitted except by special permission of the Board. As the Petitioner 's brief was different from the one it filed with the Regional Director, and as it was filed without special permission , its filing contravened the Rules. Accord- ingly, the Employer's motion is granted and the Petitioner 's brief is rejected. The Petitioner's request for oral argument is hereby denied , as the entire record, in- cluding the Employer's brief , adequately presents the issues and the positions of the parties. 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman McCulloch and Members Fanning and Brown]. 3 Cemetery Service Corporation , herein called CSC, owns and controls Springdale Cemetery Association and Peoria Cemetery Co. which , in turn, own and operate Springdale and Park- view Cemeteries located in Peoria, Illinois. CSC is also engaged in the sale and installa- tion of grave monuments and markers under the trade name of Wm. Triebal Monument Co, and in the florist business under the name of Maywood Florist . The parties stipulated, and we find , that the Employer's operations constitute a single integrated enterprise functioning under the ownership and control of 'Cemetery Service Corporation. '-Cf. Carolina ,Supplies and Cement Co., 122 NLRB 88; Inglewood Park Cemetery Association, 147 NLRB 303. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceeds de ininimis.5 We find that not only the sales to florists, monument companies, and mortuaries were nonretail, but also the sale of animal coffins and grave blankets, which the Employer manu- factured, were nonretail. As these nonretail sales totaled $14,335, and exceeded de minimis, the nonretail standard is applicable.6 We come then to a consideration of whether the Employer meets the Board's discretionary standards for asserting jurisdiction over a nonretail operation. During 1963 the Employer made purchases out of State in the amount of $43,123, which the parties agree con- stituted inflow, as defined in Sie'nwns Mailing Service, 122 NLRB 81. There is, however, a dispute between the parties as to the following purchases, the Petitioner contending that they constituted additional inflow:' (1) Liquid asphalt costing $1,825 was purchased from a local company to which the asphalt had been shipped directly from an out-of-State seller; (2) a statue, marble for the construction of a mausoleum, typewriters, a snowplow, and a leafblower, purchased for $11,097 outside the State of Illinois. As the Employer's pur- chases of liquid asphalt were made from a seller within the State who received it from outside the State, such purchases clearly con- stituted inflow.8 The Employer would exclude the purchase of statue, marble, typewriters, snowplow, and leafblower as non- recurring expenditures. Although purchase of the first two items may be infrequent, they represent material used in Employer's op- eration. The last three items are similar in nature to the equipment expenditures for a truck and a tractor, which the parties agree are properly included in the admitted inflow. Even if some of these items are nonrecurring capital expenditures, they are not the only type involved and therefore not the sole basis for asserting jurisdic- tion here. Accordingly, we shall include them as part of the inflow for jurisdictional purposes.9 As the admitted inflow together with the disputed inflow exceeds $50,000, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 'Yakima Cascade Fuel Co., 126 NLRB 1,316 ;. Appliance Supply Company, 127 NLRB 319; National Car Rental Company, 141 NLRB 1086; Harry Pollins, d/b/a Harry's Tele- vision Sales and Service, 143 NLRB 450 0 Harry Pollins d/b/a Harry's Television Sales and Service, supra. 7 During 1963 the Employer also paid premiums in the amount of $8 206 to in-State agents of out-of-State companies for insurance covering the lives of its executives, theft, workmen's compensation , liability, fire, and employee hospitalization ; and it received from out of State income from cemetery care fund investments amounting to $3,518 In view of our decision herein, we find it unnecessary to, and therefore do not, decide the nature of these transactions for jurisdictional purposes 9 Siemens Mailing Service , supra. 0 Cf Magic Mountain, Inc., 123 NLRB 1170, in which the Board refused to assert juris- diction on the basis of nonrecurring capital expenditures alone. CEMETERY SERVICE CORPORATION, ETC. 607 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 stipulated at the hearing that the appropriate unit includes all employees employed by Cemetery Service Corporation at Peoria, Illinois, and vicinity locations, excluding office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act. However, the Employer contends, contrary to the Petitioner, that Arthur Johnson, Roland Johnson, and Fred Johnson should be excluded from the unit as supervisors. These three employees, who are brothers, have been employed for many years at the Parkview and Springdale Cemeteries. A fourth brother, Kenneth Johnson, is the superintendent of both cemeteries. Roland lives in a house on the Parkview premises, but works pri- marily at Springdale. Arthur works chiefly at Parkview. Roland drives a truck, hauls tombstones and dirt, digs graves with a backhoe tractor, sets up funerals, lays foundations and gravestones, and picks up trash. Arthur unlocks the Parkview gates every morning, gets out the mower, changes the blades, runs the tractor, lays out graves, and hauls dirt. Every morning Roland and Arthur pick up from the office or from Kenneth Johnson work orders stating the work to be done. Kenneth designates employees to assist or work with Roland and Arthur in performing this work. Fred Johnson replaces Kenneth Johnson while he is on vacation, but Kenneth leaves specific instructions for him to follow. At other times during the year, Fred takes employees by truck to work at the cemeteries, digs graves, and performs other such duties at both cemeteries. Kenneth Johnson does the hiring, discharging, assigning, and granting of time off to employees, and checks on the work at the cemeteries on an everage of three times a week. Under these circumstances, we find that neither Roland nor Arthur nor Fred Johnson possesses supervisory authority, and we shall include them in the unit. However, we find that Kenneth Johnson is a supervisor, and shall exclude him. Accordingly, we find that the following unit is appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All employees of the Employer in Peoria, Illinois, and vicinity locations, excluding office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.]