King Brooks, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1954

108 N.L.R.B. 56 (N.L.R.B. 1954)

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KING BROOKS, INC . and LOCAL 333S, MEN'S FURNISHINGS
AND CLOTHING, MICHIGAN JOINT BOARD, AMALGAM-
ATED CLOTHING WORKERS OF AMERICA, CIO, Petitioner.
Case No . 7-RC-2322. March 25, 1954
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 Herbert C.
Kane, 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 a Michigan corporation which operates
a retail clothing store in Detroit, Michigan. During its fiscal
year ending June 30, 1953, its out-of-State purchases and sales
were in the approximate respective amounts of $466,000 and
$3,000.1 On the basis of these purchases and sales in com-
merce, we find, contrary to the Employer, that it is engaged in
commerce and that it will effectuate the policies of the Act
to assert jurisdiction in this case.2
2. The labor organizations involved claim to represent
certain employees of the Employer.'
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
The Employer and the Intervenor moved that the instant
petition for a unit of the Employer' s selling and nonselling
employees be dismissed because the Michigan Labor Mediation
Board had, prior to the filing of said petition, conducted an
election among employees of the Employer.
The Intervenor has been the contractual bargaining repre-
sentative of the Employer's selling and nonselling employees;
the most recent contract expired on September 16, 1953. On
July 22 the Intervenor requested recognition as the represen-
tative of the Employer's office and clerical employees and on
July 23 it filed a petition with the Board. The Intervenor later
withdrew the petition4 and thereafter filed a petition with the
Michigan Labor Board, pursuant to which an election was
held on September 22. The instant petitionwas filed on October
15, 1953, and was amended on October 19. On October 16 the
1 We find no merit to the Employer's contention that the Board should consider, for the
purpose of determining jurisdiction, only its net sales and purchases; I. e., sales less
returns and purchases less returns.
2 The Rutledge Paper Products, Inc., 91 NLRB 625; Stark's Boston Store, 107 NLRB 23.
In agreeing to assert jurisdiction herein, Chairman Farmer is not to be deemed thereby
as adopting the Board's past jurisdictional plan as a permanent policy.
3 Local 1050, Retail Clerks International Association, AFL, was permitted to intervene
on the basis of a showing of interest covering the employees sought.
4 The record does not show why the Intervenor withdrew its petition and we draw no
inference therefrom.
108 NLRB No 8.
KING BROOKS, INC. 57
State Board wrote the Intervenor that "in the interest of comity"
with this Board it would not tally the ballots until the Board
acts upon the case.
In support of its position that the petition should be dismissed
because of the prior State Board election, the Employer relies
on Oil Transport, Inc.-' However, that case is distinguishable
on its facts. There, for example, the petitioner, the only union
involved, sought an election from both the State Board and this
Board, while in the instant case it was the Intervenor rather
than the Petitioner which invoked the action of the State Board.
Thus, the Petitioner herein has at no time acted inconsistently
with its desire to have this Board determine the question
concerning representation.
In addition we note that the record does not indicate whether
the State election was conducted in the office and clerical unit
in which the Intervenor sought recognition from the Employer,
or in a unit of selling and nonselling employees, which the
parties agree in the instant case is an appropriate unit. Nor
does the record indicate that the Petitioner herein sought or
was offered an opportunity to appear on the State ballot.
In these circumstances, and on the entire record in the case,
we find no merit to the motion of the Employer and the Inter-
venor to dismiss the petition.' The motion is accordingly denied.
4. We find, in substantial agreement with the parties, that
the following unit is appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act: All
employees, excluding alteration department employees, confi-
dential employees, managers, guards, and supervisors.
5. The parties stipulated that part-time employees should
be excluded from the unit. However, we find that all part-time
employees, regardless of the number of hours worked, are
necessarily included in the unit, and that all regular part-time
employees are also eligible to vote unless good cause is shown
to the contrary.' Accordingly, we do not adopt the stipulation
of the parties.
[Text of Direction of Election omitted from publication.]
Members Beeson and Rodgers took no part inthe considera-
tion of the above Decision and Direction of Election.
5106 NLRB 1321.
6Cf. Punch Press Repairs Corporation. 89 NLRB 615; Kaiser-Frazer Parts Corporation,
80 NLRB 1050; Waterways Engineering Corporation, 93 NLRB 794.
7Essex-Graham Company, 107 NLRB 1491.