Better Electric Co., Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1960

129 N.L.R.B. 1012 (N.L.R.B. 1960)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Elliott, Lezotte, Dalpiaz, and others signed a letter to the inter-
national union in which they expressed criticism of the local union's trial procedure,
a type of activity which, in the Trial Examiner's opinion, is protected by the rights
guaranteed in Section 7 of the Act and that Roberts threatened them with and incited
physical violence against them therefore and that they were physically assaulted,
remedial action for this violation of Section 8(b) (1) (A) will be recommended in the
customary manner.19
The Trial Examiner is of the opinion that the request of counsel for ,the General
Counsel that any notice that is recommended by the Trial Examiner should be mailed
by the Respondent to its members has merit. The Trial Examiner believes that not
,all Respondent's members visit the union hall with any degree of regularity and that
it is unlikely that a substantial number of the members would see a notice posted in
the union hall during the limited posting period. Mailing of the notices, in addition
to posting in the union hall , will therefore be recommended.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. A. E. Anderson Construction Company is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Subordinate Lodge No. 169, International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, .is .a labor organization
within the meaning of Section 2 (5) of the Act.
3. By attempting to cause A. E. Anderson Construction Company to discriminate
in regard to hire and tenure of employment of Floyd D. Lezotte and James S. Dal-
piaz in violation of Section 8 (a) (3) of the Act, the Respondent encouraged member-
ship in Respondent, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (1) (A) and (2) of the Act.
4. By maintaining and enforcing an understanding and practice whereby employ-
ment by A. E. Anderson Construction Company was conditioned upon clearance or
referral by the Respondent Union, the latter has engaged in unfair labor practices
within the meaning of Section 8(b) (1) (A) and (2) of the Act.
5. By threatening and causing physical violence to Homer Elliott, Floyd D. Le-
zotte, and James S. Dalpiaz, because of their exercise of their rights under Section 7
of the Act, Respondent has engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
6. The unfair labor practices aforesaid affect commerce within the meaning of
Section 2(6),and (7) of the Act.
[Recommendations omitted from publication.]
19 The charges for which the three men were to be tried were filed because of their
relationship to the hiring of three men, Including Lezotte and Dalpiaz, without union
clearance. Roberts' expressed animosity toward the signers of the letter was also trace-
able to the hiring issue.
Better Electric Co., Inc., and Michael Gordon , as President of
Local 199, Industrial Workers of Allied Trades , affiliated with
Confederated Unions of America and Jeremiah P. Sullivan,
as President of Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO.' Case No. A0-16. Decem-
ber 28, 1960
ADVISORY OPINION
This is a petition filed by Jeremiah P. Sullivan, as president of Local
Union No. 3, International Brotherhood of Electrical Workers, AFL-
1 The names of the parties appear in this order in conformity with the Board's custom-
ary practice.
129 NLRB No. 128.
BETTER ELECTRIC CO., INC., & MICHAEL GORDON, ETC. 1013
CIO (herein called the Petitioner), praying for an advisory opinion
in conformity with Section 102.98 of the Board's Rules and Regula-
tions, Series 8.
A. In substance, the petition alleges as follows :
1. Better Electric Co., Inc. (herein called Employer), is a New
York corporation engaged in the electrical contracting business, per-
forming miscellaneous work in various commercial buildings and
apartment houses. The Employer's accountant has advised the Peti-
tioner, and the Employer has admitted, that during the calendar year
1959 its gross sales were $366,357.55, and that its purchases from New
York firms of goods, supplies, commodities, and services originating
outside the State of New York exceeded $50,000.
2. There is currently pending in the Supreme Court of the State of
New York a suit for an injunction and damages brought by Michael
Gordon, as president of Local 199, Industrial Workers of Allied
Trades, affiliated with Confederated Unions of America (herein called
Local 199), against the Employer and the Petitioner. Said action has
an index number of 10227-1959 and a calendar number of E-4614.
Local 199's suit is based on the allegations that it has a collective-
bargaining contract under which the Employer's employees have des-
ignated it as their collective-bargaining agent and that the Petitioner
has "coerced, threatened, intimidated and otherwise prevented em-
ployees of the [Employer] from belonging to Local 199, which con-
stitutes a violation of Section 8(b) (1) of the. National Labor
Relations Act, as amended."
3. The Supreme Court of the State of New York has not made find-
ings with respect to the commerce data hereinabove set forth.
B. No response to the petition herein has been received from either
the Employer or from Local 199.
On the basis of the above, the Board is of the opinion that :
1. The Employer is a nonretail electrical contracting enterprise.
Although the petition fails to state where the Employer operates, it
is reasonable to infer from the allegations of the petition that the
Employer is doing business in the State of New York.
2. The Board's current standard for exercising jurisdiction over a
nonretail enterprise which falls within its statutory jurisdiction is
"an outflow or inflow across State lines of at least $50,000, whether
such outflow or inflow be regarded as direct or indirect. For the pur-
poses of applying this standard . . . indirect inflow refers to the pur-
chase of goods or services which originated outside the employer's
State but which he purchased from a seller within the State who
received such goods or services from outside the State." Siemons
Mailing Service, 122 NLRB 81, 85.
3. Although the Employer's local purchases of goods, supplies, com-
modities, and services originating outside the State of New York
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceeded $50,000, there is no showing before the Board that the local
New York sellers directly received "such goods and services from
outside the State." If the local sellers had received such goods and
services from outside New York, then the Employer's purchases would
constitute indirect inflow under the Board's indirect inflow jurisdic-
tional standard (Siemons Mailing Service, supra). On the other
hand, if the local sellers had not directly received such goods and
services from outside New York, the Employer's purchases would not
constitute indirect inflow under the Siemons decision.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, that the Board would assert
jurisdiction over the operations of the Employer with respect to labor
disputes cognizant under Sections 8, 9, or 10 of the Act, only if the
Employer's purchases constitute indirect inflow under the Siemons
indirect inflow jurisdictional standard. The Board expresses no opin-
ion as to whether it would take jurisdiction over, or render a decision
on the merits of, the controversy which is the subject of the State
court action.
MEMBER RODGERS took no part in the consideration of the above
Advisory Opinion.
United Wholesale and Warehouse Employees , Local 261, Retail,
Wholesale and Department Store Union , AFL-CIO [Perfec-
tion Mattress & Spring Company ] and Samuel H. Burr. Case
No. 10-CC-148. December 08, 1960
DECISION AND ORDER
Upon a charge duly filed on March 12, 1960, by Samuel H. Burr, an
individual, against United Wholesale and Warehouse Employees,
Local 261, Retail, Wholesale and Department Store Union, AFL-CIO,
herein called Respondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Tenth Region,
issued a complaint alleging that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the
meaning of Section 8(b) (4) (i) and (ii) (B) and Section 2(6) and (7)
of the Act. Copies of the complaint, the charge, and notice of hearing
were duly served upon the Respondent and the Charging Party.
With respect to the unfair labor practices, the complaint alleged,
in substance, that on or about March 10, 1960, and thereafter, the
Respondent induced and encouraged the employees of certain retail
furniture stores in the Birmingham, Alabama, area, to engage in
strikes or refusals in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on any goods,
129 NLRB No. 125.