Building and Construction Trades Council, Etc.

National Labor Relations Board - Board Decisions

Nov 28, 1962

139 N.L.R.B. 1370 (N.L.R.B. 1962)

1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building and Construction Trades Council of San Bernardino
and Riverside Counties and All of Its Affiliated Local Unions,
and their agents, Mr. Con O 'Shea, representative , and Mr.
Charles E. Mautz , representative ; San Bernardino and River-
side District Council of Carpenters and Its Affiliated Local
Unions #944 and #1343, and their agent , Mr. Art Jensen,
secretary; Cement Masons' Local #97, AFL-CIO; Hod Car-
riers and Laborers ' Local #783, AFL-CIO, and its agent,
Mr. Howard Smith , business representative and Golding and
Jones, Inc.; and Interstate Employers , Inc., and its member,
B B & G Developers
Building and Construction Trades Council of San Bernardino
and Riverside Counties : San Bernardino and Riverside Dis-
trict Council of Carpenters and Its Affiliated Local Unions
#944 and #1343; Cement Masons' Local #97, AFL-CIO; Hod
Carriers and Laborers ' Local #783, AFL-CIO and Golding
and Jones , Inc.; Interstate Employers , Inc. and its member,
B B & G Developers . Cases Nos. 21-CC-465 and 21-CP-62.
November 28, 1962
DECISION AND ORDER
On August 7, 1962, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, recommending
that the consolidated complaint be dismissed on the ground that the
record fails to establish that the business operations of various persons
directly affected by certain challenged conduct is sufficient to warrant
the assertion of jurisdiction under the Board's jurisdictional stand-
ards,) as set forth in the Intermediate Report attached hereto? There-
after, the Charging Parties and the General Counsel filed exceptions to
the Intermediate Report, and the General Counsel filed a supporting
brief.
The Board 3 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record with
respect to the jurisdictional issue, and, for the reasons appearing be-
low, has decided to reverse the recommendation of the Trial Examiner
1 There is no contention , nor did the Trial Examiner find , that statutory or legal
jurisdiction does not exist
I The Intermediate Report makes no finding with respect to the unfair labor practices
alleged in the consolidated complaint herein.
' 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 [ Members Leedom , Fanning,
and Brown].
139 NLRB No. 105.
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1371
that the complaint be dismissed and has decided to assert jurisdiction
herein.
The consolidated complaint alleges in Case No. 21-CP-62 that the
Respondents violated Section 8 (b) (7) (C) of the Act by picketing and
causing to be picketed B B & G Developers, hereinafter referred to as
Developers, with an object of forcing or requiring Developers to rec-
ognize and bargain with the Respondents as the representatives of De-
velopers' employees although the Respondents were not the currently
certified representatives of such employees. The alleged unlawful
picketing, which is the substance of the charge in this case, occurred
at a construction project at Yucaipa, San Bernardino County, Cali-
fornia, where Developers, as general contractor, and its subcontractors
were engaged in the construction of certain classroom additions for two
elementary schools known as the Yucaipa and Dunlap schools.
The consolidated complaint also alleges, in connection with Case No.
21-CC-465, a violation of Section 8(b) (4) (A) in that the school
picketing had an additional object of forcing and requiring Develop-
ers to enter into an agreement which was prohibited by Section 8 (e)
of the Act, in that it would have required Developers to subcontract
only to firms under contract with Respondent Unions and other unions
affiliated with the Respondent Trades Council, and that by such con-
duct the Respondents violated Section 8(b) (4) (A) (i) and (ii) of the
Act.
Developers and R. B. Bidney, General Contractor, hereinafter re-
ferred to as Bidney, are general contractors in the building and con-
struction industry. As is clear from the Intermediate Report, they
constitute a single employer for jurisdictional purposes. During the
calendar year 1961, Bidney's gross volume of business as a general con-
tractor was slightly below $500,000 and that of Developers slightly
above $400,000. While the record evidence fails to provide a complete
roster of the construction projects handled by the two firms during the
calendar year, it discloses that between August 1 and December 1,
1961, Developers functioned as a general contractor on four construc-
tion projects, including the Yucaipa and Dunlap school projects where
the alleged unlawful picketing took place. Work on the school projects
began during the first week of November 1961. The contract price
thereof was approximately $156,888, of which amount work valued
at approximately $90,000 was awarded to seven subcontractors. Dur-
ing the 12-month period ending November 30, 1961, Bidney and De-
velopers made direct and indirect out-of-State purchases of materials
for use on their projects valued at $4,3,260.02. At the time of the hear-
ing in this proceeding, April 17, 1962, Developers' subcontractors on
the Yucaipa and Dunlap projects had purchased and received, for use
on the project, materials originating outside the State valued at
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$9,006.08, and other such materials valued at $1.281 were to be pur-
chased before the completion of the school projects.
Upon consideration of a number of approaches to the jurisdictional
problem, the Trial Examiner concluded that the Board would not be
justified in asserting jurisdiction herein under any of them. This is
because, in his opinion, the applicable $50,000 outflow-inflow jurisdic-
tional standard 4 was not satisfied for any given jurisdictional year.
We are of the opinion that the Trial Examiner erred in this regard.
Even if it be accepted, as the Trial Examiner believed, that no part of
the subcontractors' inflow at the school projects could be allocated to
the 12-month period ending November 30, 1961, a matter which we do
not now decide in view of the incompleteness of the record, it does not
follow that the Board's inflow requirements have not been met. It
is established that Bidney and Developers, as general contractors, had
a gross volume of business of approximately $900,000 during 1961 and
that, with respect to that portion of their business which they per-
formed themselves, their out-of-State inflow was in excess of $43,000
during the year ending November 30,1961. As is now well established,
"the Board's jurisdictional criteria expressed in terms of annual dollar
volume of business do not literally require evidentiary data respecting
any certain 12-month period of operations, but may be satisfied, for
example, by projecting or estimating commerce data for an appropriate
annual period." s So far as appears from this record, Bidney's and
Developers' performance during the 12-month period ending Novem-
ber 30, 1961, its out-of-State purchases included, is representative of
the scope of its annual operations." On a projected basis, the out-of-
State inflow figure of $43,260.62 would be the same for the annual pe-
riod embracing the work on the project. Since the out-of-State in-
flow of Developers' subcontractors at the Yucaipa and Dunlap projects
may be added,' a total inflow from outside the State of at least $50,000
appears. This is sufficient to satisfy the applicable jurisdictional
standard. Accordingly, we find that Developers is engaged in com-
merce within the meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein. We also find that, for
the purposes of this proceeding, the subcontractors of Bidney and De-
velopers engaged in the construction of the Yucaipa and Dunlap
4 Siemons Mailing Service, 122 NLRB 81.
8 United Mine Workers of Amer,ca , Distract 2 (Mercury Mining and Construction Com-
pany), 96 NLRB 1389 , 1390-1391 . Also see Montex Drilling Company, 122 NLRB 139.
6 The record , although admittedly incomplete in many respects , shows that at the time
of the hearing, Bidney and Developers were actively engaged in various construction
projects which, exclusive of the Yucaipa and Dunlap projects , were valued at approxi-
mately $336,888.
See Carpenters Local Union No. 1028 et at (Dennehy Construction Company), 111
NLRB 1025.
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1373
projects are persons engaged in commerce or in an industry affecting
commerce within the meaning of the Act.
Having found, contrary to the Trial Examiner, that the assertion
of jurisdiction is warranted in these cases, we shall remand the pro-
ceeding to the Trial Examiner fora resolution of the other issues raised
by the pleadings.
[The Board remanded this proceeding to the Trial Examiner for
the purpose of preparing and issuing a Supplemental Intermediate
Report setting forth the findings of fact, conclusions of law, and recom-
mendations with respect to the unfair labor practices alleged in the
complaint herein.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed December 6, 1961, and January 4, 1962, each duly served,
the General Counsel of the National Labor Relations Board caused a consolidated
complaint and notice of hearing dated March 6, 1962, to be issued. Therein, various
labor organizations and their agents-designated in the consolidated case caption
above-were jointly charged with the commission of unfair labor practices affecting
commerce within the meaning of Section 8(b) (4) (A) and Section 8(b) (7) (C) of
the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519). Copies
of the consolidated complaint and notice of hearing were duly served upon the
respondent labor organizations, their designated representatives, and the complainants
designated in the consolidated case caption, responsible for the charges. Subse-
quently, various amendments to the consolidated complaint were prepared and duly
served.
Substantially, the consolidated complaint as amended charged that various desig-
nated labor organizations and their agents had been responsible for the placement of
pickets-beginning on December 1, 1961, and continuing thereafter-before two
school construction projects for which B B & G Developers, one of the complainants
herein, functioned as a general contractor. General Counsel contends that the
respondent labor organizations and their agents engaged in such conduct (1) to force
or require Developers and R P. Bidney, General Contractor, to enter into an agree-
ment prohibited by Section 8(e) of the Act; and (2) to force or require Developers
to recognize and bargain with the respondent labor organizations as representatives
of Developers' employees, and to force or require Developers' employees to accept
or select the respondent labor organizations as their collective-bargaining representa-
tives, notwithstanding the fact that none of the designated labor organizations are
currently certified as representatives of such employees.
Through their answer and amended answer, duly filed, the various respondent
labor organizations and their designated representatives-cited collectively as Re-
spondents in this report-conceded certain factual allegations of the consolidated
complaint, but denied various jurisdictional allegations; denials were likewise entered
with respect to the commission of any unfair labor practices.
Pursuant to notice, a hearing with respect to the issues was held at San Bernardino,
California, on April 17, 1962, before Trial Examiner Maurice M. Miller. The
General Counsel and Respondents were represented by counsel, the complainants
were represented by their labor relations consultant. Each of the parties was afforded
a full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues. When their testimonial presentations were
complete, counsel and other representatives were apprised of their right to file briefs
or proposed findings and conclusions; oral argument, however, was not heard.
Briefs have been received from the General Counsel's representative and Respondents'
counsel; these have been fully considered.
Upon the entire testimonial record, documentary evidence received, and my
observation of the witnesses, I make the following:
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. Jurisdiction
A. Bidney and Developers
1. Facts
Since 1947, R. P. Bidney has been sole owner and general manager of a proprietor-
ship, doing business as R. P. Bidney , General Contractor . Presently , and throughout
the period with which this case is concerned , Bidney maintained and maintains
his principal office and place of business at 1103 Grand Avenue , Colton, California;
there he is engaged in business as a general contractor in the building and con-
struction industry.
For 2 years, approximately , B B & G Developers , designated as Developers in this
report , has been organized as a California corporation , with its principal place of
business , likewise, located at 1103 Grand Avenue, Colton , California . Throughout
the period with which this case is concerned , R. P. Bidney has been president of the
corporation, John Carrigan has functioned as the firm 's vice president , and Eleanor
Jane Bidney, R. P. Bidney 's wife, has served as the corporation 's secretary and
treasurer . These three persons, further , have functioned as the firm 's board of
directors . Like R. P. Bidney , General Contractor , Developers has been engaged,
throughout the period with which this case is concerned , as a general contractor
in the building and construction industry.
Bidney and Developers share business office space . Mrs. Bidney and one secretary,
on the payroll of Developers , work together to handle the payrolls and commercial
accounts maintained separately for both firms. Checks for both firms may be signed
by Bidney or his wife . While Bidney and Developers maintain separate bank
accounts , Bidney regularly pays their joint phone bill, determines bid policy for
both firms , purchases materials and supplies for both firms, makes final decisions with
respect to the content of bids prepared by both firms, sets policy with respect to
wages, hours, and conditions of work for both firms, prepares invitations for
subcontractors to bid on work, and makes final decisions with respect to subcontractor
awards for both firms. Approximately 75 percent of the materials purchased by
each firm have a common source . Various pieces of heavy construction equipment
which Developers presently owns were transferred to the corporation by Bidney
sometime in October 1961; compensation for the equipment thus transferred will be
proffered through corporate stock, which Developers currently proposes to issue.
Should Bidney require this heavy equipment for some project , present arrangements
permit him to requisition whatever he might need; his regular payment of the shared
office telephone bill, plus his grant of permission for the corporation to share his
office quarters , has been considered compensation for his use of Developers ' equip-
ment as needed When such equipment is not available , Bidney rents needed
machinery elsewhere . Equipment owned by Bidney and Developers is stored on a
lot which Bidney owns , materials and supplies owned by each firm are commingled
and stored on the same premises . Developers pays no rental for this use of Bidney's
property; the privilege granted the corporation in this respect is considered part of the
quid pro quo for Bidney's recognized right to use the heavy equipment previously
noted. Bidney signed the contractor 's license application for both firms.
During December 1961, Developers had five to seven men on the corporate payroll;
two of these had previously been Bidney workers . Edgar De Young, proiect super-
intendent for Developers on the school construction project with which this case is
directly concerned , had previously been employed by Bidney for several years, prior
to his transfer to the corporation 's payroll.
When the calendar year began , Bidney was privy to four trade agreements which
he had previously signed: the general Building Trades agreement negotiated by the
Respondent Council ; separate contracts with the Carpenters and Laborers district
councils; and another agreement with a Cement Masons local . None of these
organizations claimed representative status pursuant to a Board certification.
Developers was privy to a contract with District 50 , United Mine Workers of America,
Construction Division, previously executed by Interstate Employers , Inc. in the
corporation 's behalf; Bidney , pursuant to his authority as the corporation's president,
had given the trade group power of attorney to execute such an agreement.
During calendar 1961, Bidney's gross business volume was slightly below $500,000:
Developers had a gross volume slightly above $400 ,000, approximately . Record
evidence fails to provide a complete roster of the construction projects handled by
these firms during the calendar year . Testimony proffered without contradiction,
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1375
however, reveals that between August 1 and December 1, 1961, Developers functioned
as a general contractor on four construction projects: (1) Rancho Vista Shopping
Center in Colton, San Bernardino County, California; (2) the Second Christian
Reformed Church; (3) a United States post office in Banning, Riverside County,
California, and (4) classroom additions for two elementary schools at Yucaipa, San
Bernardino County, California, known as the Yucaipa and Dunlap schools. The
project last designated was the project at which the conduct challenged by the con-
solidated complaint occurred. Bidney's credible testimony reveals that work on these
school projects by Developers began during the first week of November, approxi-
mately. I so find The contract price for the school projects approximated $ 156,888;
before work began on the projects, presumably, Developers had awarded $90,004
worth of subcontracts, approximately, to seven designated subcontractors. During
the same period, Bidney handled two construction projects as a general contractor;
(1) Quick-Way Potato Company; (2) certain facilities located on the University
of California Riverside campus. Further, Bidney functioned as a subcontractor on
two projects which Developers handled as a general contractor: (1) Rancho Vista
Shopping Center; and (2) the Second Christian Reformed Church
When the Board's hearing in the present case was held, Developers was still en-
gaged on the school projects, additionally, the firm was engaged on a $16,000
general contract for the construction of one Colton, California, residence. Bidney
was engaged on four projects as a general contractor; these were described and
evaluated for the record as follows: (1) The Bellino Laundromat in San Bernardino,
$24,000, (2) the Medical Arts Building in San Bernardino, $231,000; (3) certain
facilities for Eisenhower High School, Rialto, California, $13,880; and (4) lecture
halls for Redlands High School, Redlands, California, $52,000. The dates on which
these projects began, however, have not been provided for the record.
2. Conclusions
Board cognizance of any case presented for decision , pursuant to statute , neces-
sarily derives , first, from a preliminary determination that legal jurisdiction for some
Board action exists. Such a determination , normally, reflects the Agency's basic
conclusion that the business operations conceivably concerned "affect" commerce as
the statute requires-and, further , that the effect of such business operations on com-
merce may not be considered so minute as to preclude a determination of statutory
jurisdiction under the de mimmis rule . When a determination is made that legal
jurisdiction is present , record evidence must show, further , that the business opera-
tions in question meet certain relevant jurisdictional standards.
There can be no doubt that the business operations of Bidney and Developers-
whether considered separately or jointly-bear some relation to interstate commerce;
labor practices reasonably calculated to affect their operations would presumably
deserve characterization as labor practices likely to have more than a minimal impact
on commerce , statutorily defined. With the record in its present posture, however,
some question might well be warranted as to whether the participation of Developers
and Bidney in commerce-either before or after the conduct characterized in the
consolidated complaint as a statutory violation-should be considered to have fallen
below the level of participation which, pursuant to this Agency 's presently applicable
standards , would call for the assertion of Board jurisdiction . See Siemons Mailing
Service, 122 NLRB 81, and related cases.
With respect to this problem the General Counsel contends , preliminarily, that
presently available evidence reveals a sufficiently close relationship between Bidney
and Developers to warrant their treatment as a single employer for jurisdictional
purposes . Thus-so the argument runs-this Agency may rely upon their combined
records of participation in commerce to justify the exercise of Federal jurisdiction.
The Board has consistently treated separate concerns , when closely related, as
though they constituted one employer for the purpose of determining whether to
assert statutory jurisdiction . The question presented for resolution in such cases
has been whether the firms, despite their nominally separate character , function with
a sufficient degree of integration to warrant Board reference to their combined busi-
ness operations , when required to determine whether such operations meet pre-
viously declared jurisdictional standards . The principal factors which have been
considered relevant to any determination regarding the existence of sufficient inte-
gration have been found in testimony dealing with the extent of: (1) interrelation
of operations ; (2) centralized control of labor relations ; ( 3) common management;
and (4 ) common ownership or financial control. No testimonial presentation lim-
ited to one of these factors has been held determinative , but Board opinions have
stressed the first three factors, since they tend to reveal "operational integration"
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally, particularly centralized control of labor relations. See Twenty-first Annual
Report, pp. 14-15, and the cases therein cited.
With respect to Bidney and Developers, there can be no doubt about the presence
of every factor customarily relied upon to justify a conclusion that two separate firms
function as a single, integrated enterprise. Their degree of functional integration
is revealed by Bidney's testimony with respect to: (1) their shared office and storage
premises; (2) their common reliance upon two clerical workers, one Bidney's wife,
to maintain books of account and payroll records; and (3) their common use of office
facilities and various items of heavy construction equipment. Straits Aggregate &
Equipment Corp., et at., 133 NLRB 108; Mohican Trucking Company, 131 NLRB
1174; Hamilton Bros., Inc., et al., 130 NLRB 233; Jat Transportation Corp, et al.,
128 NLRB 780; Alamo-Braun Beef Company, et al., 128 NLRB 32. Centralized
control of labor relations by R. P. Bidney for both firms may be found proven be-
cause of testimony, received without contradiction, that he makes decisions for both
firms with respect to wages, hours, and working conditions, together with his testi-
mony relative to trade agreements personally signed by him for his proprietorship,
and signed by others pursuant to his authorization for the corporation. Straits Ag-
gregate and Equipment Corp., at al., supra; Mohican Trucking Company, supra;
Pine State Creamery Company, Inc., et al., 130 NLRB 892; Jat Transportation Corp.,
et al., supra; Alpha Corporation, Transportable System Division, 128 NLRB 309;
V.I.P. Radio, Inc., 128 NLRB 113; Alamo-Braun Beef Company, et al., supra. Com-
mon management for the two firms-centralized in R.P. Bidney personally-stands
revealed through his testimony: (1) that he filed the necessaary contractor's license
applications for both the proprietorship and the corporation; (2) that he has func-
tioned, throughout, as the responsible head of each business enterprise, signing
checks, paying their joint office expenses, purchasing materials and supplies, prepar-
ing bids, and awarding subcontracts; and (3) that common facilities are used by
the proprietorship and corporation for the storage of materials, which are largely
purchased from common sources and commingled on their shared premises. Perfect
T V., Inc., 134 NLRB 575; Straits Aggregate and Equipment Corp., at al., supra;
Mohican Trucking Company, supra; Pine State Creamery Company, Inc, et al., supra;
Zanetti Riverton Bus Lines, 128 NLRB 1389; Jat Transportation Corp., et a!., supra;
Alamo-Braun Beef Company, et al., supra; C. L Morris, Inc., etc., 127 NLRB 761;
Orkin Exterminating Company, Inc. (of Kentucky), 115 NLRB 622. Common own-
ership of the two business entities clearly cannot be questioned.
With the record in such posture, there can be no reasonable room for doubt that
Bidney and Developers function with a sufficient degree of integration to warrant
their treatment as a single employer, for the purpose of necessary determinations
regarding the propriety of this Agency's discretionary exercise of statutory juris-
diction. Cf. Cain-Brese Corp., d/b/a Owl Drug Company 128 NLRB 552, 556;
Levitz Service Company, 121 NLRB 205; Frank S. Owens Co., et al, 118 NLRB
1619, 1620 I so find.
B. Participation of Bidney and Developers in commerce
With a determination made that these construction firms should be treated as a
single firm for jurisdictional purposes, Agency consideration must be directed to
some measurement of the effect their combined operations have on commerce, so
that conclusions may be reached as to whether their operations satisfy the Board's
present jurisdictional standards. See Siemons Mailing Service, 122 NLRB 81, 85,
and related cases. In the cited case the Board declared that:
. [I] t will best effectuate the policies of the Act if jurisdiction is asserted over
all nonretail enterprises which have 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 purposes of applying this standard ... [d]irect inflow refers to goods or
services furnished directly to the employer from outside the State in which the
emnloyer is located. Indirect inflow refers to the purchase of goods or services
which originate 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. In applying this standard, the Board will adhere to its past practice of
adding . . direct and indirect inflow
When required to apply this standard, the Board has consistently based its determi-
nations upon business volume figures-provided for the firm or firms concerned-
during the most recent calendar or fiscal year, or the 12-month period immediately
prior to the Agency hearing, where such figures are available. Teamsters, Chauffeurs,
Warehousemen Helpers Union, Local 386 (Hobbs-Parsons Co., a corporation), 128
NLRB 1031, 1032; Aroostook Federation of Farmers, Inc., 114 NLRB 538. With
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1377
these basic principles in mind , consideration may be given the present record, with
respect to the combined participation of Bidney and Developers in commerce.
Most of the figures worthy of consideration as relevant will be found in a stipula-
tion-prepared and signed without date-which was submitted for the record before
the testimonial presentations began. Some significant material , however, has been
provided through testimony, none of it contradicted.
1. Purchases by Bidney and Developers
a. Direct inflow generally
Between December 1, 1960, and November 30, 1961, Bidney and Developers pur-
chased $4,892 worth of goods and materials which were transported to them directly
from suppliers and manufacturers located outside the State of California. See
Stipulation No. 5, previously noted.
b. Indirect inflow generally
Between December 1, 1960, and November 30, 1961, Bidney and Developers pur-
chased $18,035 worth of goods and materials from 14 designated California sup-
pliers; these suppliers had received such goods and materials directly from out-of-
State manufacturers. See stipulations Nos. 1, 2, 3 for the record. The purchases
in question included steel worth $1,800 purchased and received by Developers be-
tween July and November 1961 from one designated supplier, and hardware worth
$1,215 purchased and received by Developers from another supplier between April
and July of the designated year.
Between December 1, 1960, and November 30, 1961, Sidney and Developers
purchased $610 worth of electrical supplies from a California supplier, which that
supplier had purchased from out-of-State manufacturers. See stipulation No. 4,
previously noted. The supplies had been shipped from points outside the State of
California directly to independent warehouse firms located within the State for
storage; counsel have stipulated that these warehouse firms had some proprietary in-
terest in such stored electrical supplies, but that their out-of-State manufacturer had
retained title. Each warehouse had shipped designated quantities of electrical sup-
plies to their California purchaser, which had then sold and delivered them to Bidney
and Developers. Since the local California supplier of these construction firms-
Polar Electric, Redlands, California-had purchased these electrical supplies directly
from their manufacturers, which firms had retained title to the goods throughout
their period of storage within a California warehouse, the purchase of such supplies
by Bidney and Developers from Polar Electric may legitimately be considered in-
direct inflow. See United Cigar-Whelan Stores Corporation, at at., 114 NLRB
1219, 1220, United Cigar-Whelan Stores Corporation, et at., 115 NLRB 1214, 1219.
For jurisdictional purposes, the local California warehouses may be considered a
link, not a break, in the chain of interstate commerce.
With respect to further Developers and Bidney purchases, counsel have stipulated
that a representative of Gibson Lumber Company, San Bernardino , California,
would-should he be called to give testimony-competently and credibly testify that:
(a) During the twelve-month period which ended November 30, 1961, De-
velopers and Bidney purchased and received from the Gibson Lumber Com-
pany $369 worth of nails, pine moulding and tempered masonite. During
calendar 1961, which was a representative year, that company purchased and
received all of its nails, pine moulding and tempered masonite directly from
out-of-State mills and manufacturers.
(b) During the same twelve-month period, Developers and Bidney purchased
and received from Gibson Lumber Company $24,115 worth of Douglas fir, and
$8,210 worth of plywood. During calendar 1961. which was a representative
year, that company purchased and received 51.9% of its Douglas fir stock
and 83 3% of its plywood stock directly from mills located outside the State
of California; the company's remaining Douglas fir and plywood was purchased
and received from California mills.
(c) Because Gibson Lumber Company commingles the California and non-
California Douglas fir and plywood, it is not possible to determine whether the
Douglas fir and plywood purchased by Developers and Bidney was California
or non-California in origin.
See, for the record, stipulation No 6, filed by counsel. With matters in this posture,
General Counsel requests the benefit of a presumption that whatever plywood and
Douglas fir Bidney and Developers purchased and received from Gibson Lumber,
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the 12,month period noted, derived from out-of-State sources in percentages
equivalent to Gibson's out-of-State purchases and receipts during a substantially
concurrent period.
General Counsel's right to claim the benefit of such a presumption, however, cer-
tainly cannot be considered clear. No decisional support for Board recognition of
the presumption has been cited; nor has my own search for Board precedent revealed
any case wherein reliance was placed upon such a presumption. Legal precedents
possibly worthy of consideration as remotely similar, further, provide little support
for the General Counsel's request. Two examples may be noted: Where separate
and community property have become confused, blended, or commingled, the whole
will be presumed community property, unless the community component of the
intermixture is comparatively small; further, the burden of establishing the separate
character of a portion of the property is laid upon the person claiming it to be
separate. 41 C.J.S. 1040, Husband and Wife §490; Fountain v. Maxim, 290 P. 576,
210 Cal. 48. And when questions have arisen as to whether goods shipped in inter-
state commerce have become subject to local or State control or regulation, the
decisional doctrines generally considered relevant to their determination have been
defined as follows:
Goods shipped from one State to another remain in interstate commerce so
long as they remain in the original package in which they were delivered to the
carrier for transportation, but when that package is broken the interstate com-
merce is deemed to have ceased and the goods and traffic therein are subject
to State regulation . . .
The rule is not limited to those articles of commerce that are capable of being
put in the form of a package in the generally accepted meaning of that word,
but it applies likewise to other articles incapable of assuming the form of a pack-
age, literally speaking, because of their physical properties. . . .
Imported articles lose their interstate character and become subject to State
regulation when they no longer remain in the original package. This happens
when the package is broken, especially where the larger receptacle is broken
for the purpose of selling and delivering the smaller units, or where the property
is otherwise mingled with the mass of property of the State. See 15 C.J.S. 309,
"Commerce," §28, in this connection.
Should the Board consider comparable legal concepts determinative with respect to
the question now under consideration-compare Kenneth Chevrolet Company, et al ,
110 NLRB 1615, 1616, in this connection-General Counsel would probably be
denied the benefit of any presumption.
However, sterile consistency of legal doctrine-without regard for the objective
sought-need not be the Board's desideratum. Nothing in the present record can
be said to militate strongly against recognition of the presumption specified; common-
sense, rather, might well suggest, persuasively, that purchase orders from Bidney-
Developers would normally have been satisfied from Gibson stock which included
out-of-State lumber in substantial quantities.
Further, recognition of the requested presumption, particularly under the circum-
stances of this case, might well be deemed calculated to promote realization of the
statutory objectives. Published railroad freight tariffs, which may be officially
noted, reveal progressively greater freight charges for the shipment of given quantities
of lumber from northern shipping points to purchasers within the San Bernardino-
Riveside area; both of the principal rail carriers charge $0.31 more per hundred
pounds for the shipment of a designated quantity of lumber to these points from
Seattle, Washington, than from Eureka or Willits, California. Commonsense, there-
fore, seems to suggest that, whenever labor disputes might force Bidney and De-
velopers to curtail their lumber purchases, Gibson, confronted with 'a prospective
loss of patronage, would most likely curtail wholesale purchases of Washington and
Oregon lumber before curtailing its Northern California purchases Cf. N.L.R.B.
v. Reliance Fuel Oil Corporation, 297 F 2d 94 (C.A. 2). I so find. And since
conduct by some respondent union could, therefore, conceivably result in labor dis-
putes reasonably likely to produce ramified effects upon commerce, General Counsel's
claimed right to rely upon a presumption-calculated to facilitate the Board's de-
cision to take jurisdiction-would seem warranted.
Reliance upon such a presumption, herein, would justify a determination that
Bidney and Developers, during the designated 12-month period previously noted,
purchased approximately $12,515.69 worth of Douglas fir, and $6,838.93 worth of
plywood from Gibson Lumber stock, which Gibson had secured directly from out-
of-State mills.
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1379
c. Recapitulation
With the General Counsel, then, given the benefit of favorable resolutions for
every disputed question, the combined "inflow" chargeable to Bidney and Developers
directly and indirectly, for the 12-month period which immediately preceded the
conduct challenged by the consolidated complaint, reached $43,260.62 total. See
stipulations Nos. 1-6, inclusive. None of the record stipulations, however, provide
any basis for determinations with respect to the quantity of specific materials which
Developers may have purchased, within the designated 12-month period, for the
Yucaipa and Dunlap school project which commenced 1 month before that 12-month
period ended. Without some substantial evidence sufficient to warrant a determina-
tion that specific purchase orders were placed for the school project, no reliable
conclusions can be drawn as to whether or not Developers purchased or received
out-of-State materials for the project within the firm's first month of work; nor can
any conclusions be reached as to the amounts of such material which might arguably
have been purchased or received.
(Even if a presumption could conceivably be considered warranted that Bidney
and Developers distributed their total purchases of out-of-State materials equally
throughout the 12-month period noted-compare Pelnik Wrecking Company, Inc.,
126 NLRB 259, 260-261, in this connection-computation of the average monthly
"inflow" chargeable to the combined enterprise would provide no reliable clue with
respect to the quantity of out-of-State materials purchased or received for the school
project; during the month of November 1961, Developers and Bidney were con-
currently busy with several other projects, for which such materials could have
been purchased.)
Later in this report, significant consequences of the record deficiency noted, which
might well be considered relevant to any jurisdictional determination, will be
discussed.
2. Puchases by subcontractors for the Yucaipa and Dunlap school project
a. Direct inflow
Counsel have stipulated that three designated subcontractors for the Yucaipa and
Dunlap school project purchased $3,076 worth of goods and materials for use on
the project, directly from manufacturers located outside the State of California. See
Stipulations Nos 7, 10, 12 for the record. With respect to the total amount reported,
one stipulation shows that $1,281 worth of acoustical tile "will be shipped" directly
from a Minnesota manufacturer; two other stipulations-previously described as filed
without date-show that metal toilet partitions and electrical supplies "were shipped"
to designated subcontractors.
b. Indirect inflow
Similar stipulations reveal, further, that three designated subcontractors purchased
$4,695 worth of goods and materials in connection with their subcontracts, for use on
the designated school project; these goods and materials, characterized as goods
"purchased" from the California suppliers, were goods and materials which the
suppliers had "purchased and received" directly from out-of-State mills and manu-
facturers. See stipulations Nos 8, 9, 14, previously noted. With respect to one
similarly stituated subcontractor, Ben Huizenga Plumbing, counsel presented no com-
parable stipulation. Huizenga testified, however, without contradiction, that, prior
to the hearing date, he had spent approximately $4,600 for materials "installed" on
the Yucaipa and Dunlap school project; of this amount $1,459.08 worth had been
manufactured outside the State of California. (Testimony submitted without
challenge reveals Huizenga's ability to determine that this portion of his materials
had various out-of-State points of origin, by his inspection of the invoices for such
materials which had been submitted to him "through" his supplier.) Since Huizenga's
testimony reveals that he received these materials through a supplier-location not
specified-they have been considered indirect inflow, for present Board jurisdictional
purposes.
One subcontractor, Holly's Electric, was reported to have purchased $1,057 worth
of electrical supplies from a California supplier, which that supplier had purchased
from out-of-State manufacturers. See stipulation No. 12, for the record. These sup-
plies, again, had been shipped from various out-of-State points directly to independent
warehouse firms, located within the State, for storage; counsel have stipulated that
these warehouse firms had some proprietary interest in such stored electrical supplies,
but that their out-of-State manufacturers had retained title Each warehouse had
shipped designated quantities of electrical supplies to their California purchaser-
672010-63-vol. 139-88
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Polar Electric, Redlands, California-which had then sold and delivered them to
Holly's; since Polar Electric concededly purchased these supplies directly from manu-
facturers who had retained title while their goods were stored within a California
warehouse, the purchase of these supplies by Holly's from Polar Electric, like other
purchases previously noted, may legitimately be considered indirect inflow. See
United Cigar-Whelan Stores Corp., supra, in this connection. I so find.
c. Recapitulation
With matters in this posture, the record clearly warrants a determination that De-
velopers' subcontractors, prior to the hearing date, purchased $10,287.08 worth of
materials, directly or indirectly, from out-of-State sources for use on the Yucaipa and
Dunlap school project. See stipulations Nos. 7-12, inclusive. Most of the materials
purchased by the designated subcontractors directly from out-of-State manufacturers
had been shipped to such subcontractors before the hearing in this case; elsewhere in
this report, however, reference has been made to $1,281 worth of acoustical tile
which, according to the stipulation, "will be shipped" directly to one named sub-
contractor by the out-of-State manufacturer. Huizenga's testimony reveals the dollar
worth of his out-of-State materials installed on the designated school project before
the hearing date in this case; the stipulation reached with respect to the indirect flow of
various other subcontractors, however, merely reveal their "purchase" of materials
with a stated value, and show that their California suppliers had "purchased and re-
ceived" such materials, destined for the project, before the hearing date.
No stipulations or testimony have been proffered with respect to the value of mate-
rials purchased and received by subcontractors for the school project-directly or
indirectly from out-of-State sources-within the project's first month; nor does the
record provide data with respect to the quantity of such out-of-State materials pur-
chased and received by the subcontractors designated, during the 12-month period
which ended November 30, 1961, pursuant to the normal requirements of their busi-
ness operations, for various other projects
3 Purchases by subcontractors for other projects
Previously, reference has been made to several construction projects with which
Bidney and Developers were concerned when the hearing in the present case
convened. Thus, the record shows that Developers was still engaged on the Yucaipa
and Dunlap school project; further, the corporate firm was engaged in the construc-
tion of a single Colton, California, residence. Various subcontractors for the school
project have already been designated, those for the Colton residence have not been
reported for the record. Bidney's projects-every one of them presumably started
after Respondents began the course of conduct which the General challenges-
covered the following jobs: (1) Bellino Laundromat; (2) Medical Arts Building, San
Bernardino, California; (3) Redlands High School additions; and (4) Eisenhower
High School, Rialto, California, additions. Merely a partial record has been pro-
vided with respect to the subcontracts on these various Bidney projects. Ralph
Duris Plumbing stands designated as the Laundromat project's plumbing subcon-
tractor; Tom Lovely, Electric, of San Bernardino, has been listed as the electrical
subcontractor for Bidney's Medical Arts Building project, together with his contract
work for each of the two high school projects.
a. Purchases by Tom Lovely, Electric, as Bidney's subcontractor
While a witness, Lovely testified, without contradiction, that he was currently
engaged as Bidney's electrical subcontractor for five projects. One of these-the
Colton, California, residence of Mr Laws, specifically-may have been a project
for which Developers was the nominal general contractor; Lovely's other subcontracts
covered work on Bidney's personal residence, the Medical Arts Building, and two high
school projects previously noted.
Counsel have stipulated that Bidney, designated as the general contractor for con-
struction of the Medical Arts Building and the Redlands High School addition,
awarded Lovely the electrical subcontracts for both projects See stipulation No. 13,
previously noted Pursuant to their stipulation, the conclusion would be warranted
that Lovely, while engaged in the performance of the designated subcontracts, "will
use" $7,194 worth of electrical materials, which his firm "will purchase" from Red
Dot Wholesale Electric Company, Fontana, California Like Polar Electric, another
electrical supplier-designated previously in this report as the local supplier of De-
velopers, Bidney, and Holly's Electrical, specifically-.the Red Dot firm is stipulated
to have "purchased" from out-of-State manufacturers the electrical materials which
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1381
Lovely "will purchase," with delivery being effectuated from the warehouses of
various Los Angeles, California, warehouse firms. For reasons previously noted in
this report, the passage of the electrical goods in question through local warehouses
should not be deemed sufficient to raise questions with respect to their consideration
as Tom Lovely, Electrical's indirect inflow for jurisdictional purposes.
No data have been presented regarding Lovely's use of out-of-State material for his
two residence subcontracts or the Eisenhower High School project
b. Purchases by Ralph Duris Plumbing
Counsel have stipulated that Ralph Duris Plumbing, single proprietorship, was
generally engaged, when the stipulation was prepared, as a plumbing contractor in
the building and construction industry. See stipulation No. 14 for the record.
During the calendar year 1961, Duris, while in the course and conduct of his busi-
ness operations, purchased more than $55,000 worth of plumbing supplies, of this
amount, the stipulation reveals that plumbing supplies worth $32,000 were transported
to Duris from, and received from, other California enterprises, which other enter-
prises had received the said goods and materials directly from States other than
California.
While a witness, Duris testified that he was currently working as a Bidney sub-
contractor on the Bellino Laundromat project; $3,700 was set as the total value
of his plumbing contract. Nothing in the record will warrant any determination with
respect to how much out-ol-State material he may have used, or planned to use, for
his Laundromat work.
c. Recapitulation
Since the last two stipulations reflect out-of-State purchases prognosticated or
computed for different periods, pursuant to different concepts of relevancy, their
simple mathematical sum would seem to be without significance for present
purposes. Reference has already been made to the fact that record figures reflective
of Duris' participation in commerce were limited to purchases of material with out-
of-State points of origin, received from California suppliers during the last calendar
year. No comparable stipulation or testimony has been proffered, however, with
respect to Lovely's purchase of similar out-of-State material, directly or indirectly,
either during the 12-month period which ended November 30, 1961, or during the
calendar year in question, pursuant to the normal requirements of his business.
Later, in this report, consideration will be given to the possibility of a determina-
tion that "combined" figures regarding (1) Lovely's prospective indirect inflow of
material which he will require for two current Bidney projects, and (2) Duris' prior
indirect inflow of materials purchased for various projects completed or begun
during the previous calendar year, may be relevant to required jurisdictional deter-
minations in this type of case
C. Conclusions
Thus far, determinations which reflect the Board's discretionary assertion of
statutory jurisdiction-set forth in complaint case decisions based on Section
8(b) (4) (A) and Section 8(e) of the newly modified statute-have rested upon record
proof that employers, pressured to enter into presumptively proscribed contracts
of privy to such contracts, themselves participated in commerce sufficiently to meet
jurisdictional standards Amalgamated Lithographers of America and Local 78, etc.
(Employing Lithographers of Greater Miami, Florida, and Miami Post Company),
130 NLRB 968, 970, Amalgamated Lithographers of America (Ind.), and Local No.
17, etc (The Employing Lithographers, A Division of the Graphic Arts Employers
Association, et al.), 130 NLRB 985, 995; Local 294, International Brotherhood of
Teamsters, etc. (Van Transport Lines, Inc.), 131 NLRB 242, 247; International Un-
ion of Operating Engineers, Local Union No. 12 (Tri-Counties Association of Civil
Engineering Employers), 131 NLRB 520, 521; Highway Truckdrivers and Helpers,
Local 107, etc. (E A. Gallagher and Sons), 131 NLRB 925, 936; Mary Feifer,
d/b/a American Feed Company, 133 NLRB 214; Milk Drivers and Dairy Employees
Union, Local No 546, etc (Minnesota Milk Company), 133 NLRB 1314; District
No 9, International Association of Machinists, AFL-CIO (Greater St. Louis Auto-
motive Trimmers and Upholsterers Association, Inc ), 134 NLRB 1354; Automotive,
Pet.olenm & Allied Industries Employees Union, Local 618, etc. (Greater St. Louis
Automotive Trimmers and Upholsterers Association, Inc.), 134 NLRB 1363; Los
Angeles Mailers Union No 9. I T U. (Hillbro Newspaper Printing Company, Divi-
nion of Hearst Publishinc Company, Inc ), 135 NLRB 1132; Ohio Valley Carpenters
District Council, etc (Cardinal Industries, Inc ), 136 NLRB 977; Dan McKinney
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., 137 NLRB 649; Bakery Wagon Drivers, Local Union No. 484 (Clifford L. Aks-
land, d/bla Sunrise Transportation), 137 NLRB 987; International Longshoremen's
Association, et al. (The Board of Harbor Commissioners), 137 NLRB 1178; Con-
struction, Production & Maintenance Laborers Union Local 383, et al. (Colson and
Stevens Construction Co., Inc.), 137 NLRB 1650. The present consolidated com-
plaint, however, presents for the first time in this type of case, so far as I can tell,
questions regarding the Agency's application of certain discretionary jurisdictional
standards; proper disposition of these questions will require, preluninarly, some con-
sideration of the degree to which other business enterprises or persons-conceivably
subjected to statutorily proscribed pressure, or prospectively subject to the sanctions
of a proscribed contract-may be commerce participants.
General Counsel has suggested several juistifications for his basic contention that
present assertion of the Board's statutory jurisdiction would be warranted. These
contentions, necessarily dependent upon record support sufficient to sustain their
relevancy and materiality, must now be discussed
1. General contractors and subcontractors combined
Some time ago, the Board declared its determination to assert jurisdiction over
general contractors based upon the total volume of their business, or the general
construction which they undertake to discharge Cam penters Local Union No. 1028,
etc. (Dennehy Construction Company), 111 NLRB 1025, 1026; Myles Worstell, Busi-
ness Agent of Local 2023 et al., 114 NLRB 503, 505-506. Pursuant to this declara-
tion of principle, jurisdiction was asserted, based upon a record showing that the gen-
eral contractor and his subcontractors, together, purchased materials and equipment
directly from out-of-State sources for a specific project--during the 12-month period
before the hearing-sufficient to satisfy its relevant direct inflow jurisdictional
standard. (Specifically, the Board found that the materials and equipment purchased
outside the State by the general contractor, when combined with the purchases of his
subcontractors "directly from outside the State" for use on the designated project,
exceeded the necessary jurisdictional amount. Carpenters Local Union No. 1028,
etc, supra. Considered with regard to the relevant jurisdictional standard, this
Board decision reflected a determination, sub silentio, that materials and supplies
purchased by a subcontractor directly from out-of-State sources, for some designated
project, constitute direct inflow for the project considered as a whole, while sub-
contractors, therefore, might themselves purchase materials and supplies, for which
general contractors might reimburse them subsequently, such practices would not
be found to require Board treatment of the materials and supplies purchased as
indirect project inflow.) Since the Board decision noted, relevant jurisdictional
standards have been modified; currently, jurisdiction will be exercised over nonretail
enterprises with $50,000 worth of interstate inflow, whether direct or indirect. Sie-
mons Mailing Service, supra. Under present standards, therefore, materials purchased
by project subcontractors from local suppliers, which such suppliers directly received
from out-of-State sources, may be considered indirect project inflow, and thus be
relevant to the Board's jurisdictional determination with respect to the general con-
tractor for whose construction project such materials were purchased Better Electric
Co., Inc, et al., 129 NLRB 1012, 1013-1014. Since the subcontractor-purchaser
of project materials stands in the general contractor's stead, substantially, such pur-
chases by a subcontractor from a local supplier do not become purchases twice re-
moved from commerce.
Simple application of these principles, however, will not, apparently, settle the
General Counsel's present jurisdictional problem. His contention with respect to
this aspect of the matter has been briefed as follows:
Respondents' picket line at the Yucaipa-Dunlap project . . . affects the
"inflow" of materials to the project .. . and the signing by Bidney and Devel-
opers of the Respondent Trades Council's agreement would affect their entire
business operations. Under the circumstances, the effect on interstate com-
merce of Respondents' 8(b) (4) (A) conduct is realistically measured by com-
bining the "inflow" to the project with Bidney's and Developers' "inflow" from
their entire operations.
Clearly, this combination of inflow figures, which would yield a $53,547.70 total,
would be more than the Board's relevant discretionary jurisdictional requirement.
Nothing in the record, however, will support a determination that the particular
requirement was satisfied within a proper jurisdictional period. In Carpenters Local
Union No. 1028, etc. (Dennehy Construction Company), supra, the combined inflow
of the general contractor and his subcontractors engaged on one specific project was
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC . 1383
computed for the 12-month period which precided the hearing; presently, however,
no comparable computation can be made.
While the 12-month period which preceded the conduct challenged by the com-
plaint may be a relevant jurisdictional period, no reliable, probative, and substantial
evidence can be found in the stipulations and testimony which would warrant alloca-
tion of any subcontractor's material purchases and receipts for the Yucaipa and Dun-
lap school project to that period. (For present purposes, we may presume, arguendo,
that, pursuant to the decisional principle declared in the cited case, figures with respect
to materials inflow chargeable to Bidney-Developers for various construction projects
completed or commenced within a prior 12-month period may properly be combined
with material inflow figures chargeable to subcontractors for a single specific project
which Developers commenced within the designated period. Without any record
proof, however, that subcontractors designated for the Yucaipa and Dunlap school
project had been similarly designated for prior projects handled by Bidney-Developers,
within the period in question, the propriety of such a combination, pursuant to the
Dennehy doctrine, might well be considered questionable.) Since they lack a date,
the presently available stipulations with respect to material purchases by school
project subcontractors can only be considered reflective of the situation which existed
when they became part of the record; this occurred April 17, 1962, when the hearing
in the present case was held. Reference has previously been made to one such stipula-
tion which shows, presumably as of the hearing date, that $1,281 worth of acoustical
tile "will be shipped" to one named subcontractor directly from some out-of-State
source; other stipulations merely report "purchases" of materials and supplies, with-
out specification as to date, declaring that materials and supplies thus purchased
"were shipped" directly to designated subcontractors from out-of-State sources, with-
out any record that such shipments were made within the 12-month period with which
we are now concerned. Likewise, with respect to subcontractors reported to have
"purchased" materials and supplies from California suppliers, the record shows no
purchase or receipt dates.
While revelant portions of the record and stipulations would clearly warrant a
determination that various designated California suppliers had "purchased and re-
ceived" such materials directly from their out-of-State sources prior to the hearing
date, no conclusion whatever would be warranted with respect to when school
project subcontractors purchased their materials or supplies from such suppliers;
nor would determinations be warranted with respect to when such supplies were
delivered to their subcontractor-purchasers for school project use-assuming,
arguendo, that such deliveries were made by the various California suppliers named
before the present case was heard.
With matters in this posture, any conclusion that Yucaipa and Dunlap school
project subcontractors purchased and received $10,287.08 worth of materials for the
project, during the 12-month period for which the combined "inflow" chargeable
to Bidney and Developers was computed, would certainly not be warranted
Common knowledge with respect to the characteristics of the building and construc-
tion industry might well suggest the propriety of some presumption that Developers
made whatever subcontract awards might have been necessary for the Yucaipa and
Dunlap school project very shortly after the corporate firm's project bid was accepted.
Further, some presumption might be warranted that recipients of such subcontracts
placed purchase orders for necessary materials, supplies, and equipment within a short
time after they received notice of their awards, possibly within I month after work
on the project began. Mere placement of a purchase order within some relevant
jurisdictional period, however, should not be relied upon to justify the conclusion that
Board jurisdictional standards have been met within the period. Cf. Jos McSweeney
& Sons, Inc, 119 NLRB 1399, 1400. In the cited case-when requested to exclude
from jurisdictional computations the value of goods shipped within a given calendar
year, for which payment was received within the following calendar year-the Board
held:
It is the annual rate of shipment or flow of goods in interstate commerce,
rather than the rate of flow of payment for such goods, that determines the rela-
tive impact of an employer's operations on commerce. . The applicable
jurisdictional standard, itself, provides for the assertion of jurisdiction over
enterprises which annually "ship" out-of-State goods valued at $50,000 or more.
The Employer would have us construe "ship" to read "received payment for
goods shipped." We see no warrant for such a construction
Similarly, purchase orders possibly placed within a relevant jurisdictional period
cannot. logically, support a determination that Board jurisdictional standards have
been met, without further proof that such orders resulted in the subcontractor-pur-
chaser's receipt of goods, within the revelant period, purchased directly or indirectly
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from out-of-State sources Since the various stipulations now under consideration,
supplemented by testimony, cannot justify the conclusion that Developers' sub-
contractors for the school project purchased and received $10,287 08 worth of project
materials directly or indirectly from out-of-State sources within the 12-month period
during which Bidney and Developers made $43,260.62 worth of such purchases for
various projects, discretionary assertion of the Board's jurisdiction pursuant to the
concept now under consideration would not appear to be warranted.
Some cases suggest the Board's readiness to assert jurisdiction, consistently with the
Dennehy principle, whenever prospective material inflow for the construction project
at which the alleged violation occurred could be expected to exceed discretionary
jurisdictional requirements upon that project's eventual completion Local 3 Inter-
national Brotherhood of Electrical Workers, et al. (Peter Di Gangi, d/b/a Di Gangi
Electrical Services), 130 NLRB 1458, 1459, 1460; cf United Slate, Tile and Com-
position Roofers etc., (Atlas Roofing Co., Inc ), 131 NLRB 1267, 1268-1269. Such a
construction of the cited principle, however, would be of little help herein. Though
stipulations of record and testimony might well warrant a conclusion that Yucaipa
and Dunlap school project subcontractors have presently supplied or will supply
$10,287 08 worth of project materials purchased and received directly or indirectly
from out-of-State sources, nothing in the present record will support a comparable
determination regarding the project's material inflow, past or prospective, properly
chargeable to Developers' performance under its general construction contract. Since,
therefore, we cannot find in the record data sufficient to justify a conclusion that the
Board's relevant jurisdictional standard will finally be satisfied with respect to the
school project, concurrently with its completion, discretionary assertion of the Board's
jurisdiction cannot be justified upon this rationale.
2. Primary employers and secondary employers combined
The General Counsel, however, suggests a further rationale for his contention
that the effect of Respondent's 8(b)(4)(A) conduct upon interstate commerce may
be measured, realistically, by combining the school project's "inflow" with Bidney's
and Developers' "inflow" from their entire operations. Substantially, Respondent's
challenged conduct, purportedly directed against the Bidney-Developers general con-
tractor complex, stands characterized as secondary boycott conduct; theretore, so
the argument seems to run, commerce figures supplied for these general contractors
may properly be combined with similar figures supplied for their school project sub-
contractors, pursuant to cases which purportedly justify such combinations of pri-
mary and secondary employer "inflow" to justify the discretionary assertion of Board
jurisdiction in boycott situations. Truck Drivers Local Union No. 649, etc. (James-
town Builders Exchange, Inc.), 93 NLRB 386; Local Union No. 830, Brewery
and Beer Distributor Drivers, Helpers, and Platform Men et al. (Lincoln Beer Distrib-
utors), 106 NLRB 405, 407-409 (dissent); Marie T. Reilly, d/b/a Reilly Cartage
Company, 110 NLRB 1742, 1743-1744; International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, General Drivers and Helpers
Local No. 554, et al., (McAllister Transfer, Inc.), 110 NLRB 1769, 1771-1772;
Local 1976, United Brotherhood of Carpenters, etc., et al. (Sand Door and Plywood
Co.), 113 NLRB 1210, 1211-1212; General Drivers, Chauffeurs and Helpers, Local
Union No 886 et al., (James D. O'Dell, et al, d/b/a Ada Transit Mix), 130 NLRB
788-791; Madison Building & Construction Trades Council, et al., (Wallace Hilde-
brandt & John Kiefer, d/b/a H. & K. Lathing Co et al.), 134 NLRB 517. This con-
tention-presumably based upon well-established, judicially approved, precedent-
logically requires detailed review.
We begin with first principles. The Board is empowered to proscribe unfair labor
practices affecting commerce Certain jurisdictional standards, promulgated through
various Agency decisions, reveal the Board's discretionary determination to refrain
from exercising its statutory jurisdiction, beyond certain minimal limits. And
decisional doctrine, declared and refined in various determinations cited, has defined
this Agency's practice regarding the application of these jurisdictional standards in sec-
ondary boycott cases When complaints present Section 8(b) (4) (A) and Section
8(e) problems, under the newly modified statute, should these decisional doctrines,
conventionally relied upon to determine the discretionary limits of Board jurisdiction
in secondary boycott situations, be considered relevant9 The General Counsel's
contention presumes, without discussion, the propriety of a positive response.
While bland presumptions with respect to the proper resolution of this question in 'y
not be warranted. due consideration suggests that the General Counsel's position may
well be sound. Certainly, the Board could properly determine that his contentions
with respect to relevant principles for the determination of jurisdictional problems in
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1385
Section 8(b)(4)(A) and Section 8(e) cases would serve to promote statutory
objectives.
(Construed literally, Section 8(b) (4) (A) would seem to govern situations wherein
labor organizations (i) induce or encourage individuals, whom A employs, to strike
or withhold their labor, or (it) threaten, coerce, or restrain A directly, whenever an
object" of such conduct is forcing or requiring A to execute, reaffirm, effectuate, or
maintain some agreement which Section 8(e) forbids. Such conduct, conceivably,
could be characterized as primary conduct, related to a primary dispute. Such is the
contention of Respondents herein The statutory language, however, would also
seem to govern situations wherein labor organizations bring proscribed pressure
against A for the purpose of forcing or requiring B to "enter into" some agreement
statutorily prohibited. In such cases, the prohibited conduct's thrust would cer-
tainly deserve characterization as secondary, whether or not the business with which
the union seeks a proscribed agreement merits designation as a primary employer.)
Previously, Board decisions have noted that the principal motivation for Congress'
enactment of Section 8(e) and modification of Section 8(b)(4)(A) was to close
certain so-called Sand Door loopholes. See District No. 9, International Association
of Machinists, AFL-CIO (Greater St. Louis Automotive Trimmers and Upholsterers
Association, Inc.), 134 NLRB 1354; Dan McKinney Co., 137 NLRB 649; and the
legislative history therein cited. Section 8(b) (4) (A) prior to its modification was
summarily described by the Supreme Court as a section which forbade unions to
induce strikes or refusals to handle goods, whenever an object of such conduct was
to force the struck employer or another person to cease doing business with some
third party. Local 1976, United Brotherhood of Carpenters, etc. v. N.L R.B. (Sand
Door & Plywood Co.) 357 U.S. 93, 98. Designated agreements prohibited by Section
8(e), however, have been characterized as devices calculated to promote the same
objective. Logic proceeding by analogy, therefore, would seem to compel a con-
clusion that statutorily proscribed pressure, when directed against some designated
employer for the purpose, inter alia, of forcing or requiring him to execute, reaffirm,
effectuate, or maintain a prohibited agreement, may properly be considered "sec-
ondary" pressure-contrary to the contention of Respondents' counsel-calculated
to enlist the pressured employer's cooperation to curtail the market for other, primary
employers with whom the union may have some "principal" dispute. I so find.
The decisional doctrine which the Board relies upon when required to make juris-
dictional determinations in secondary boycott cases was first promulgated, before
the statute's recent modification, in the Jamestown Builders Exchange case. Therein,
the Board noted that the effect of a secondary boycott by its very nature extends
beyond the operations of the primary employer with whom the union maintains a
dispute, and reaches secondary employers whom the union seeks to force or require
to cease dealing with the primary employer, by proscribed means. Accordingly:
... in determining whether the Board will assert jurisdiction in cases in which
secondary boycotts are alleged, we must consider not only the operations of
the primary employer, but also the operations of any secondary employers,
to the extent that the latter are affected by the conduct involved. Of course,
if the operations of the primary employer alone meet the minimum requirements
under the Board's current policy, jurisdiction should be asserted without further
inquiry. Where, however, the operations of the primary employer do not satisfy
the Board's jurisdiction standards we must, in addition, consider the operations
of the secondary employers, but only insofar as such operations are affected by
the alleged unlawful boycott. If, taken together, the business of the primary em-
ployer and that portion of the secondary employers' business which is affected
by the alleged boycott meet the minimum standards, jurisdiction ought to be
asserted. [Emphasis supplied.]
Subsequently, this formulation of principle was clarified when the Board specifically
adopted Member Peterson's interpretation of the Jamestown rule-set forth in his
Lincoln Beer Distributors dissent-that it is not the particular business between the
primary employer and the secondary employer at the location affected, but rather
the entire business of the secondary employer at that location, which should govern
application of the Agency's jurisdictional standards in secondary boycott situations.
Marie T. Reilly, d/b/a Reilly Cartage Company, supra; McAllister Transfer, Inc,
supra. Applying these principles. with respect to the cases last cited, the Board
first considered Reilly's and McAllister's participation in commerce; these firms,
which had resisted union organization or refused a request for union recognition and
collective bargaining, were considered primary employers Since their participation
in commerce, revealed in separate cases, was not found sufficient to justify exercise
of the Board's jurisdiction, consideration turned, in each case, to interstate aspects
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the total volume of business annually done by the various secondary employers
involved, at their separate business premises directly affected by challenged conduct.
(Notably, various firms thus designated secondary, within each case, for the purposes
of jurisdictional determination had purportedly been subjected to proscribed union
pressure for which the respondent unions named had claimed privilege, pursuant to
the provisions of their so-called hot cargo contracts.) General Counsel presently
seeks application of the decisional principles which McAllister and Reilly propounded
and exemplified, within the framework of this case. Results of such an application,
therefore, must now be considered.
Preliminarily, some determination must be made with respect to the identity of
various primary and secondary employers. Conventionally, such determinations
could only be made upon findings with respect to the fundamental character of
the dispute. With respect to this aspect of the case, General Counsel's consolidated
complaint charges that:
Since on or about July 28, 1961, Respondents have demanded . . . that
Developers and Bidney enter into a contract with Respondents which would
require Developers and Bidney to refrain from handling, using, selling, trans-
porting or otherwise dealing in the products of and to cease doing business with
subcontractors who do not use as [their] sole and exclusive source of em-
ployees the hiring halls maintained by the Respondent Council and its affiliated
unions ...
From the General Counsel's point of view, therefore, the basic dispute herein would
appear to be between Respondents and certain specialty contractors guilty of a failure
or refusal to use designated hiring halls as their sole and exclusive labor supply source;
this, despite the lack of record evidence revelatory of some active dispute between
respondent unions and the designated specialty contractors. This contention, based
upon precedent, seems to have merit. Washington-Oregon Shingle Weavers' District
Council, et al. (John E. Martin, et al., d/b/a Sound Shingle Co.), 101 NLRB 1159,
1161-1163; Local 1976, United Brotherhood of Carpenters, etc., AFL (Sand Door
and Plywood Co.), 113 NLRB 1210, 1211; cf. Marie T. Reilly, d/b/a Reilly Cartage
Company, supra. The Board has recently revised and clarified its governing state-
ment of principle with respect to the designation of primary and secondary employers.
International Longshoremen's Association, et al., AFL-CIO, (The Board of Harbor
Commissioners), 137 NLRB 1178. While my conclusions regarding the proper
application, herein, of the Board's new test cannot be considered free from doubt
or reservation, nothing in the present formulation would seem to require rejection
of the General Counsel's view. For present purposes, I would still consider his
characterization sound. Conflicts with respect to the proper application of con-
ceptual labels frequently lead contestants and triers of fact into semantic bogs, never-
theless, within my view of the decided cases, categorization of the designated spec-
ialty contractors, herein, as primary employers seems proper. Logically, therefore,
various other firms whose operations may have been directly affected by challenged
conduct-whether general contractors on the picketed school construction project,
or other specialty contractors with project subcontracts-would merit secondary
employer designations.
Who, then, should be considered primary disputants for present purposes? Clearly,
such a designation would normally cover any school project subcontractors currently
doing business with Bidney-Developers who did not use hiring halls, maintained by
Respondent Council and its affiliated unions, as their sole and exclusive labor supply
source. For jurisdictional purposes, minimally, the conclusion must be drawn,
arguendo, that Respondents' purportedly coercive pressure was reasonably calculated
to force or require the entry of Bidney-Developers into a contract or agreement which
would require them, forthwith, to "cease" handling, using, selling, transporting, or
otherwise dealing in the specialty products which such subcontractors might be re-
quired to provide for the Yucaipa-Dunlap school project; further, such a contract
or agreement would presumably be one through which Bidney-Developers agreed
to "cease" doing business with prior recipients of subcontracts unwilling or unable
to satisfy stated contractual conditions.
Testimony proffered with respect to Holly's and Huizenga reveals them to be the
only known school project subcontractors who did not use union-run halls as their
labor supply source. Combined. these specialty contractors have purchased $4,018.08
worth of materials for project installation, directly or indirectly, from out-of-State
sources See stipulation No. 12, previously noted, and Huizenga's testimony. No
stipulations or testimony have been provided, however, revelatory of their purchases
in commerce. nursuant to normal business requirements, during any relevant 12-
month jurisdictional period.
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1387
Without testimony to establish the contrary, we must presume that business rela-
tionships current between Developers and five other designated school project sub-
contractors would not be disrupted should the former subscribe to some contract
presumptively within Section 8(e)'s proscription. Clearly, however, Respondents'
challenged conduct-picket patrols at both school project sites-should be considered
reasonably calculated to affect the ability of such specialty contractors to perform
their subcontracts. For present purposes, therefore, the five subcontractors may be
considered secondary employers, whose operations would be affected by Respondents'
continuation of conduct which the consolidated complaint questions. While separate
figures have not been provided with respect to the total relevant "inflow" chargeable
to these firms for the picketed school project, their purchases in commerce pur-
suant to project subcontracts, before this case was heard, covered $6,269 worth of
materials. See stipulations Nos. 7-11, previously noted. Such purchases, how-
ever-combined with Holly's and Huizenga's, so far as these stand revealed for the
record-merely reach $10,287.08 worth once more.
Developers, considered a secondary employer for present purposes, does hold the
general contract for the school project. However, while the project's contract price
reached $156,888, with $90,000 worth of subcontract awards, data relative to De-
velopers' purchases in commerce for the project, past and prospective, have not been
provided for the record. Though a presumption, arguendo, might be warranted that
figures regarding the general contractor's past and prospective school project "inflow"
would be relevant for jurisdictional purposes-see Local 3, International Brotherhood
of Electrical Workers, et al., (Peter Di Gangi, d/b/a Di Gangi Electrical Services),
supra, in this connection-record stipulations provide no clue with respect to De-
velopers' total "inflow" chargeable to the project "affected" by Respondents' chal-
lenged conduct.
Discretionary assertion of the Board's jurisdiction pursuant to some conventional
formulation of the Jamestown Builders Exchange principle, therefore, cannot be
justified.
Reference has previously been made to the General Counsel's contention that
the effect of Respondents' 8(b) (4) (A) conduct may be realistically measured by
combining project "inflow" with total "inflow" chargeable to Bidney and Developers
pursuant to their normal business operations within some relevant jurisdictional
period. Essentially, this contention reflects a complete inversion of the Jamestown
Builders Exchange principle. The General Counsel, thereby, really suggests-pre-
sumably for Section 8(b) (4) (A) and Section 8(e) cases only-that employers sub-
jected to coercive pressure, presumptively calculated to force or require their entry
into some proscribed agreement, should be considered "primary" for jurisdictional
purposes rather than secondary. Such a suggestion, however, would clearly lack
consistency with his position on the merits Cf. Truck Drivers Local Union No. 649
etc. (Jamestown Builders Exchange), supra, at 389, footnote 4. Alternately, his con-
tention could be construed as a plea for reversal of the Board's position with respect
to relevant data in cases of this type, so that figures revelatory of some secondary
,;mployers' total participation in commerce, during some determinable period, could
be combined with parallel figures derived from the primary employers' operations,
to the extent that such operations may have been affected by challenged conduct.
The Board clearly possesses the power to modify or qualify decisional principles
which Jamestown Builders Exchange laid down to govern the resolution of jurisdic-
tional questions in secondary boycott situations. Cf. Seattle Real Estate Board, 130
NLRB 608, 609-610. Bouleversement of such recognized rules of decision, however,
cannot be considered within my province.
3. Subcontractors on different projects as primary employers
General Counsel, however, further argues that the effect of Respondents' chal-
lenged conduct upon commerce cannot be measured solely by the computation of
combined material inflow for the picketed project and material inflow chargeable
to Bidney-Developers because of their total business operations within a relevant
period. In his brief, contentions are made that:
An object of the picketing, as described below, is to coerce Bidney and De-
velopers to sign an agreement which would force them to cease doing business
with that class of subcontractors who do not hire their employees exclusively
through hiring halls operated by Unions affiliated with the Respondent Trades
Council. This agreement would result in a decrease of materials, originating
from outside the State, purchased by this class of subcontractors. [Emphasis
supplied.]
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beside Holly's and Huizenga-previously designated as school project subcontrac-
tors-the General Counsel cites Tom Lovely, Electric and Ralph Duris Plumbing as
subcontractors "illustrative" of the class of specialty contractors with whom Bidney-
Developers would be forced to cease doing business . Essentially , the contention pre-
sumes that such contractors , whose future business prospects might conceivably be
affected by some proscribed agreement , may legitimately be considered "primary"
employers for jurisdictional purposes.
With respect to Lovely, reference is made to counsel 's stipulation that the elec-
trical contractor "will use" electrical material worth $7,194 on two Bidney projects,
current when this case was heard , which he ( Lovely ) "will purchase " from a Califor-
nia supplier . See stipulation No. 13, previously noted. Contention is made that
Lovely's prospective "inflow" for these two projects , combined with the previously
noted material inflow chargeable to Bidney-Developers for the 12-month period prior
to Respondents ' challenged conduct, satisfies the Board 's $50,000 jurisdictional
standard.
With respect to Duris, reference is made to the propriety of a determination that
the plumbing contractor 's total material inflow for a 12-month period merits con-
sideration as relevant , because of his situation as a primary disputant . Counsel have
stipulated that Duris, during the preceding calendar year, purchased $ 32,000 worth
of plumbing supplies from California suppliers , which such suppliers had received
directly from out-of-State sources. See stipulation No 14 , previously noted (Pre-
sumably, the General Counsel would concede no relevance for the record 's revela-
tion that Duris' substantial out-of-State purchases concededly merit treatment as
material herein merely because of his selection to perform a $3,700 subcontract
on one of Bidney 's smallest current projects. ) General Council contends that Duns'
material inflow for the designated calendar year , combined with the material inflow
chargeable to Bidney -Developers for a substantially comparable 12-month period,
suffices to meet the relevant jurisdictional standard.
Further, the General Counsel , having characterized Lovely and Duris as merely
illustrative , suggests that Bidney -Developers , pursuant to their normal course of
business , would "presumably" award subcontracts to other employers-not specified-
who do not hire workers through halls maintained by Respondent Trades Council
affiliates.
Discretionary jurisdictional standards currently considered definitive provide no
warrant, however , for the General Counsel's view . Several questionable segments
of his contention may be noted.
Reference has previously been made to the record 's silence about Lovely's pur-
chases in commerce , directly or indirectly , during some complete 12 -month period
comparable to the period for which such purchases chargeable to Bidney -Developers
are stipulated . No Board jurisdictional standard known to me will justify the com-
bination of figures regarding Lovely' s prospective material inflow for two newly
started Bidney projects , and Bidney-Developers ' prior purchases in commerce during
some previously completed 12-month period . ( For this reason , we may pass , without
comment, General Counsel's failure to provide data relative to Lovely's purchases
in commerce , if any , for three more Bidney-Developers ' projects. ) Further-with a
presumption , arguendo , that Lovely may properly be designated a primary employer
for present purposes-lack of information regarding the relevant materials inflow
legitimately chargeable to Bidney-Developers, either for the picketed school project
or the subsequently started projects on which Lovely 's performance will be required,
would still necessitate rejection of the General Counsel's contention that discretionary
jurisdictional requirements have been satisfied pursuant to some secondary boycott
rationale.
Similarly , Duris' purchases of material directly or indirectly from out-of-State
sources , during the preceding calendar year , cannot be considered sufficient. With
a presumption , arguendo , that the plumbing contractor likewise merits "primary
employer" designation , his total "inflow" within the period noted may conceivably
be relevant . General Drivers , Chauf}eurs and Helpers , Local Union No. 806, et al.
(Janes D O'Dell, d/b/a Ada Transit Mix), 130 NLRB 788, 790. However, lack
of data with respect to Bidney-Developers ' purchases in commerce , past or prospec-
tive . either for the school project "affected" by Respondents' challenged conduct or
the laundromat for which Duris' services were sought , once more leaves the Board's
$50,000 jurisdictional standard unsatisfied.
The contentions of the General Counsel , however, present more basic questions.
Specifically , should Lovely and Duris-despite their receipt of subcontract awards
after Respondents ' challenged conduct began-together with other specialty con-
tractors similarly situated who would "presumably" receive subcontracts from Bidney-
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1389
Developers during their normal course of business, be considered primary disputants
for jurisdictional purposes? This question, so far as I can tell, raises novel problems.
General Counsel notes, correctly, that the crucial "primary employer" concept,
whenever considered relevant to the Board's disposition of a secondary boycott
case, has not been restricted to those employers with whom the union respondent,
concurrently with its participation in challenged conduct, maintained some active
"primary" dispute. Joint E. Martin, et al., d/b/a Sound Shingle Co., supra; Sand
Door and Plywood Co., supra. Nevertheless, secondary boycott decisions routinely
reflect the Board's judgment with respect to the propriety of challenged conduct cal-
culated to force or require some secondary employer to "cease" or "stop" presently
handling or using the products of another business, or to "cease" some business
relationship currently maintained. In other words, the relationship between the
primary and secondary employer, which proscribed conduct may have been calculated
to destroy, has always been found an existing relationship. No court decisions have
been found, either, which suggest the propriety of the Board's reliance merely upon
"presumptions" to measure the effect which proscribed conduct would have upon
p ospective business relationships requiring purchases in commerce. (The Court of
Appeals for the Seventh Circuit did declare, in the Joliet Contractors case, "We think
the totality of the situation must be considered, both that which has resulted from
the boycott as well as that which is likely to result, in measuring the commerce
impact " Joliet Contractors Association et al. v. N L R.B., 193 F 2d 833, 840 (C.A.
7). However record stipulations for that case-which the Board decided before it
promulgated general jurisdictional standards-did provide data relative to prior
purchases of certain materials in commerce by seven previously designated building
material dealers, within a complete 12-month period; the court looked to these for
justification of its determination that the commerce impact of the challenged conduct
merited characterization as substantial.) The 3oard has consistently declined to con-
sider predictions, purporting to forecast the future business volume of parties directly
concerned, when applying jurisdictional standards. Aroostook Federation of Faimers,
Inc., 114 NL B 538; Twenty-first Annual Report, pp. 10-11. Logic would certainly
seem to compel a comparable declination to consider, for such purposes, measurable
participation in commerce by employers whose concern with the relevant dispute
could only have been found speculative when the conduct presumptively violative of
the statute took place.
in this connection, the present record reveals that Developers' two Yucaipa-Dunlap
school jobs were picketed between December 1, 1961, and February 5, 1962; no
pickets were posted at any other Bidney-Developers project. Whether Bidney com-
menced construction for the Medical Arts Building, Redlands High School, and
Bellinc Lt,undromat prior to February 5 cannot be determined, however Relevant
stipulations merely reveal that these projects were under construction when this
case was heard.
Without proof that pickets, purportedly posted by Respondents herein, performed
their picket duty at Developers' school project during a period within which
Bidney had given Duris and Lovely subcontracts for other projects, no precedent can
he found which would warrant designation of these specialty contractors as primary
disputants. Cf. Roanoke Building 1 Construction Trades Council, AFL-CIO, et al.
(The Kroger Company), 117 NLRB 977, 979-980. in Jamestown Builders Exchange
this Agency was specifically asked to consider, for jurisdictional purposes, figures
pertaining to the business operations of employers not directly involved with the
dispute which had presumably motivated statutoiily proscribed conduct. Considera-
tion of their participation in commerce was requested because of their prior or
subsequent involvement in comparable disputes with the designated union respondent.
The Board rejected the suggestion. Compare Noithein California Chapter, Asso-
ciated General Contractors of America, Inc., et al., 119 NLRB 1026, 1041 Similar
determinations would seem to be warranted herein, with the case in its present posture.
Realistically, jurisdictional determinations based upon commerce figures for firms
not currently privy to any business relationship with a picketed enterprise when
tl•e latter suffers coercive pressure, which the General Counsel would presumably
consider relevant, might well require a complete renunciation of recognized dis-
cretionary standards for these 8(b) (4) (A) cases Whenever data with respect
to the commerce participation of "primary" and "secondary" firms, privy to some
viable business relationship, fell short of recognized minimal limits, comparable
figures provided for more firms-considered presumptively barred from similar husi-
n-s relationships because of some purportedly proscribed agreement-could be
proffered to satisfy relevant jurisdictional standards.
What determinations would such a rule of decision facilitate?
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has recently held that Section 8(e) proscribes not only some forbidden
contract 's initial execution , but also its reaffirmation , effectuation , or maintenance.
Dan McKinney Co., 137 NLRB 649. In that case, the Agency 's determination to
exercise jurisdiction was based upon record figures which revealed sufficient par-
ticipation in commerce by the firm privy to the contract challenged as violative of
the statute . ( Elsewhere in this report , we have noted that firms coercively pressed
to execute ,such contracts could conventionally be considered "secondary" employers
for Section 8 (b) (4) (A ) purposes , whose participation in commerce would be deemed
relevant only if commerce data for some known "primary" employer had been
found wanting .) If McKinney 's commerce participation had not been found suffi-
cient to warrant the Board 's discretionary assertion of jurisdiction , what further
figures could have been considered relevant for jurisdictional purposes ? Consistently
with the General Counsel's present position , the Board would have been justified to
consider ( 1) the commerce involvement of firms, presumptively within some con-
tractually stigmatized class, with whom McKinney really did business subsequent to
the contract 's initial execution ; or (2) sales or purchases in commerce by prospective
customers within McKinney 's normal sales area , with whom McKinney would pre-
sumably be unable to do business pursuant to the purportedly proscribed contractual
restriction . These speculations , perhaps, might be considered a reductio ad ab-
surdum, but they suggest logical consequences of the General Counsel 's present con-
tention with respect to relevant jurisdictional data. Jurisdictional determinations
bottomed upon post facto developments , presumptions , predictions , and speculation,
however, would necessarily be divorced from rational standards.
Nevertheless , situations like those reflected in the present record need not, neces-
sarily , result in statutory wrongs without remedy. Proscribed contracts , conceivably,
may be executed by employers whose participation in commerce , within some rele-
vant period prior to such a contract's execution , would not meet recognized Board
jurisdictional standards . Determinations have been made, however, that firms which
effectuate Section 8 (e) contracts thereby "enter into" such contracts for statutory
purposes . Ergo, the voluntary or coerced effectuation of some prohibited contract,
for the purpose of forestalling or cutting off a newly sought business relationship
between the contractually bound employer and some firm concerned in commerce,
might well "affect" such commerce sufficiently to warrant the Board 's discretionary
assertion of jurisdiction . When such situations develop , certainly , the time will have
come Ito measure the commerce "flow" which might conceivably be affected by chal-
lenged conduct.
With due regard for these considerations , I find no merit in the General Counsel's
present contention that data provided with respect to the participation of Duris and
Lovely in commerce , within any relevant period, should be considered germane for
jurisdictional purposes.
D. Discretionary jurisdiction over Section 8 ( b) (7) (C) violations
Within his consolidated complaint, the General Counsel charges that proscribed
conduct by Respondents was further calculated to force or require Developers to
recognize and bargain with Respondents as the representatives of Developers' em-
ployees, and to force or require that firm's employees to accept or select Respondents
as their collective-bargaining representatives . With regard to the propriety of Board
jurisdiction over this aspect of his case, under present discretionary standards, Gen-
eral Counsel repeats his contention that:
Respondents' picketing affected the "inflow" of materials to the project, and
Developers ' submission to Respondents ' unlawful recognition and organization
demands would affect its entire business operation. Under the circumstances,
the effect on interstate commerce of Respondents ' 8(b)(7)(C ) conduct is
realistically measured by combining the "inflow " to the picketed project with
Bidney's and Developers' inflow from their entire operations.
Elsewhere in this report , however, various deficiencies of this rationale have been
noted. For several reasons previously stated, therefore , the present record must be
considered deficient in proof calculated to call for the Board's exercise of jurisdiction,
pursuant to recognized jurisdictional standards
General Counsel likewise argues that essentially the same basic labor dispute is
substantially involved in both 8 (b) (4) (A) and 8 ( b) (7) (C) cases He suggests,
therefore , that equity and the desirability of a full and complete record upon the
issues between the parties require consideration of both consolidated cases upon
their merits . Marie T. Reilly, d/b/a Reilly Cartage Company , supra , at 1744; cf.
Commission House Drivers , etc. (Euclid Foods Incorporated , d/b/a Bondi 's Mother
Hubbard Market ) 118 NLRB 130, 131. Since no sufficient warrant for the Board's
CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 331 1391
discretionary assertion of jurisdiction, based upon present standards, has been found
with respect to the 8(b) (4) (A) portion of this consolidated case, no justification can
be claimed for the Agencyis assertion of derivative or ancillary jurisdiction over the
charged 8(b) (7) (C) violation.
RECOMMENDATION
Since the present record fails to establish that the business operations of various
persons directly affected by certain challenged conduct reveal their combined par-
ticipation in commerce sufficiently to warrant the Board's discretionary exercise of
jurisdiction, under presently applicable jurisdictional standards, I recommend that
the consolidated complaint be dismissed.
Chauffeurs, Teamsters and Helpers , Local 331, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Bulletin Company. Case No. 4-CD-65.
November 28, 1962
DECISION AND ORDER QUASHING NOTICE OF HEARING
UNDER SECTION 10(k) OF THE ACT
This proceeding arises under Section 10(k) of the Act, which
provides that, "whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (D)
of Section 8(b) the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen. . . ."
On February 28, 1961, Bulletin Company, herein called the Bul-
letin, filed with the Regional Director for the Fourth Region a charge
alleging that Chauffeurs, Teamsters and Helpers, Local No. 331, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Local 331, in violation of Section
8(b) (4) (i) and (ii) (D) of the Act, had induced and encouraged em-
ployees of the Bulletin to engage in a strike or a refusal to work or to
perform services, with the object of forcing or requiring the Bulletin
to assign certain work to members of Local 331 rather than to members
of Newspapers and Magazine Chauffeurs and Handlers, Local No.
628, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Local 628.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, as
amended, the Regional Director investigated the charges and provided
for an appropriate hearing upon due notice to all the parties. The
hearing was held before Joseph I. Nachman, hearing officer, on June 1,
1961. All parties appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. The rulings of the hearing
officer made at the hearing are free from prejudicial error and are
139 NLRB No. 117.