Carpenter & Skaer, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1950

90 N.L.R.B. 417 (N.L.R.B. 1950)

In the Matter Of CARPENTER & SKAER, INC., AND GENERAL CONTRACT-
ING EMPLOYERS ASSOCIATION and GEORGE MCDONALD
In the Matter Of INTERNATIONAL HOD CARRIERS', BUILDING & COMMON
LABORERS' UNION OF AMERICA, LOCAL 210, AFL and GEORGE
MCDONALD
In the Matter Of INTERNATIONAL HOD CARRIERS', BUILDING & COMMON
LABORERS' UNION OF AMERICA, LOCAL 210, AFL and ROBERT H.
FRANCISCO
In the Matter of H. F. STIMM , INCORPORATED AND GENERAL CONTRACT-
ING EMPLOYER ASSOCIATION and HAROLD ODELL
In the Matter Of INTERNATIONAL HOD CARRIERS', BUILDING & COMMON
LABORERS' UNION OF AMERICA, LOCAL 210, AFL and HAROLD ODELL
In the Matter of ANTHONY SANUCCI, SR. and JOSEPH ToNTILLO
In the Matter of INTERNATIONAL HOD CARRIERS', BUILDING & COMMON
LABORERS ' UNION OF AMERICA, LOCAL 210, AFL and JOSEPH
TONTILLO
In the Matter of STRAUBINGER CONSTRUCTION Co., INC. and ALBERT
NAPPO AND HARRY ERVIN
In the Matter Of INTERNATIONAL HOD CARRIERS', BUILDING & COMMON
LABORERS' UNION or AMERICA, LOCAL 210, AFL and ALBERT NAPPO
AND HARRY ERVIN
Cases Nos. 3-CA-86, 3-CB-1, 3-CB-26, 3-CA-150, 3-CB-36, 3-C-4-
152, 3-CB-37, 3-CA-172, and 3 CB-45. Decided June 19, 1950
DECISION
ORDER DISMISSING CERTAIN COMPLAINTS
AND
ORDER REMANDING PROCEEDING TO TRIAL EXAMINER
On November 1, 1949, Trial Examiner Charles W. Whittemore
issued an order granting the Union's motion to dismiss the complaints
90 NLRB No. 78.
903S47-51-28 417
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
n the above-entitled proceedings on the ground that the assertion
of jurisdiction would not effectuate the policies of the National Labor
Relations Act.' Thereafter, the General Counsel filed a request for
review of the Trial Examiner's order and the Union filed a reply'
-thereto. A supporting brief was filed by the General Counsel.
To the extent here material the Board 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 order issued by the Trial Examiner, a copy of
which is attached hereto, the General Counsel's request for review,
-the briefs of the parties, and the applicable portion of the record in
-the case.2 ' We agree with the Trial Examiner that although it does
not appear that the operations of Employers Anthony Sanucci, Sr.
(Cases Nos. 3-CA-152, 3-CB-37) and Straubinger Construction Co.,
Inc. (Cases Nos. 3-CA-172, 3-CB-45) are wholly unrelated to com-
merce, the assertion of jurisdiction over these Employers, who are
-not members of General Contracting Employers Association, herein
called the Association, would not effectuate the policies of the Act.3
However, for the reasons noted below, a different result is required
with respect to the Association and those member-Employers involved
in this proceeding.
The Association, of Buffalo, New York, is an organization com-
prised of 42 general contractors and 80 subcontractors engaged in
the building-construction industry in Erie County, New York. Since
1936, the Association, in behalf of its employer-members, has nego-
tiated and signed collective bargaining contracts with the Union cov-
.ering laborers ,4 which is the classification of the employees involved
in this proceeding. During the year 1948, 90 percent of all the in-
dustrial and commercial construction in Erie County was performed
x The substantive portions of the complaints allege that the Employers and general con-
tracting Employers Association violated Section 8 ( a) (3) of the Act by discriminatorily
discharging certain employees because of their nonmembership in the Union ; and that the
Union violated Section 8 (b) (2) of the Act by demanding such discharges.
H The General Counsel's request for oral argument is hereby denied because the record and
the briefs , in our opinion , adequately present the issues and positions of-the parties.
3 Denver Building and Construction Trades Council and B. W. Fellers, Inc., 88 NLRB
212; Denver Building and Construction Trades Council and William G. Churches , et al., 90
NLRB 378 . We find no merit in the General Counsel's contention that the Trial
Examiner was in error in dismissing these complaints on the ground that the Act delegates
to the General Counsel the exclusive authority to determine in which unfair labor practice
cases complaints should issue. See Row Construction Company , 88 NLRB 580; Hale-
ston Drug Strugs, Inc., 86 NLRB 1166.
Chairman Herzog would assert jurisdiction over Employer Straubinger because he is of
the opinion that its individual operations have a substantial impact on commerce.
In accord with his dissent in the Churches case , supra, Member Reynolds would assert
jurisdiction over Straubinger , but not over Employer Sanucci because the latter 's opera-
tions fall within the do minimis doctrine.
4 The record shows that in 1948 , there was a labor dispute between the Union and the
Association which affected all the employer -members and resulted in a complete work
stoppage of all construction in Erie County.
CARPENTER & SKAER, INC. 419
by members of the Association. The volume of such construction
amounted to approximately $20,000,000, of which amount approxi-
mately $2,000,000 represented purchases of materials received from
outside the State of New York. A substantial number of construction
jobs was performed by members of the Association for firms engaged
in interstate commerce, within the meaning of the Act.
Consistent with our well-established policy in representation cases,"
we find that in passing upon the jurisdictional issue herein, the Asso-
ciation and its members must be regarded as a single enterprise. That
the totality of the operations, in volume and character, of all members
of the Association has a substantial effect on interstate commerce is
apparent. The fact that we might not assert jurisdiction as to each
member of before the Board individually or that this proceeding
does not directly involve all its members is not here material, be-
cause the alleged unfair labor practices are attributed to the Asso-
ciation itself and are the result of the application of a common labor
policy by the Association on behalf of its' members, including those
involved herein.
We accordingly find, for the purposes of this proceeding, that the
Association and Carpenter & Skaer, Inc., H. F. Stimm, Incorporated,
and Fred Seitz, Inc., are engaged in commerce within the meaning
of the Act and that it would effectuate the policies of the Act to
assert jurisdiction in order to resolve the substantive issues raised by
the complaints.
ORDER
IT IS HEREBY ORDERED that Cases Nos. 3-CA-86, 3-CB-21, 3-CB-26,
3-CA-150, and 3-CB-36, be, and they hereby are, remanded to the
Trial Examiner for the preparation and issuance of an Intermediate
Report, setting forth his findings of fact, conclusions of law, and rec-
ommendations with respect to the unfair labor practices alleged in the
complaints.
IT Is FURTHER ORDERED that'the complaints, with respect to Cases Nos.
3-CA-152, 3-CB-37, 3-CA-172, and 3-CB-45, be, and they hereby are
dismissed.
ORDER
Charges having been duly filed in the above-captioned cases ;
Complaints, notices of hearing, and an order consolidating cases having been
issued on June 22, 1949, by the General Counsel of the National Labor Relations
Board, by the Regional Director for the Third Region ;
Answers having been filed by each of the respondents;
Indianapolis Cleaners and Launderers Club, 87 NLRB 472, reversing 85 NLRB 1198;
Wirts Distributing Co., 'et al ., 82 NLRB 669 ; Air Conditioning Company of Southern
California, et al., 81 NLRB 946.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing having been held in Buffalo, New York, on July. 18, 19, and 20, 1949,
before the undersigned Trial Examiner, and evidence having been received on
all issues raised in the pleadings ;
Motions having been made at the close of the hearing by each of the Respond-
ents for dismissal of the complaints, and ruling upon said motions having been
reserved;
Briefs having thereafter been received ;
A summary of evidence adduced at the hearing as to the business of the em-
ployer respondents, and each of them, being as follows :
A. The Association: General Contracting Employers Association of Buffalo,
New York, is a voluntary organization consisting of 42 general contractors, about
80 subcontractors and 40 material dealers. Its purposes are, according to its
constitution :
to maintain high professional standards in the fulfillment of contracts, to
combat unfair practices in the industry, to encourage sound business methods
and to deal collectively with labor.
According-to the testimony of its executive vice-president, it has functioned ac-
cording to its purposes since its founding in 1936. In short, it appears to be what
is commonly termed a service organization, engaging in no actual construction
work itself. As well as with other basic construction labor organizations in the
industry, the Association negotiates and enters into written bargaining agree-
ments with the Hod Carriers ; such contracts covering each of the Association
members. During 1948, members of the Association, according to reports sub-
mitted to the Association, reported doing a gross business approximating $20,-
000,000. All of the construction work was done within Erie County, New York.
According to testimony of the said vice-president, general contractors perform
about 45 percent of the total contracts, amounting to about $9,000,000; and sub-
contractors the remainder, amounting to about $11,000,000. According to the
same witness,' the general contractors purchase materials originating outside New
York State valued at about 5 percent of their contract total, while about 15
percent of the subcontractors' total contract price is expended in the purchase of
materials originating outside the State. Accordingly it would appear that the
total value of out-of-state purchases would be 5 percent of $9,000,000, or $450,000,
plus 15 percent of $11,000,000, or $1,650,000. That total, according to the Trial
Examiner's calculation, is about $2,100,000. General Counsel, however, during
the hearing, obtained an affirmative answer from the said vice-president to a
leading question in which he arrived at a total of $4,000,000,-by adding 5 per-
cent and 15 percent, and then, apparently, figuring 20 percent of $20,000,000.
According to the vice-president's testimony, he arrived at an estimated per-
centage of out-of-stbte purchases only by using, as one example, figures obtained
from one member contractor, not involved in these proceedings. The estimate
does not appear, from other evidence, to be reasonably accurate beyond doubt,
since the two general contractor members, actually involved in these proceedings,
produced figures at the hearing showing that while they did a total contract
business in 1948 amounting to about $2,887,000, their material purchases origi-
nating outside New York amounted in value to only $96,000, or about 31/2 per-
cent of the total contract price.
B. Carpenter & Skaer: The total contract value of work performed and serv-
iced by this employer in its fiscal year from April 1, 1948 to March 31, 1949,
amounted to $1,087,272.73. Of this total the company performed work valued at
$684,903.73, while sub-contractors performed the remainder. During this period
Carpenter & Skaer purchased materials and supplies valued at about $175,000,
CARPENTER & SKAER, INC. 421
of which an estimated 20 or 25 percent, amounting in dollar volume from $35,000
to $43,000, originated outside New York. This employer is a member of the
Association.
C. Stimnt: During 1948 Stimm performed work and services on construction
contracts valued at about $1,800,000, all being performed in New York. During
the same period Stimm purchased materials valued at about $386,000, of which
approximately 14 percent, or $53,000 worth, came from outside the State. Stimin
is a member of the Association.
D. Stranbi. ger: This employer is not a member of the Association. During
1948 Straubinger's total volume of business amounted to about $676,066.80, ac-
cording to a document submitted in evidence by General Counsel and attested
as correct by the company's president. According to the same witness, materials
valued at about $80,000, or about 12 percent of total materials purchased valued
at $534,202.92, originated outside New.York.
E. Fred Seitz, Inc.: Seitz is a plastering contractor, and is a sub-contracting
member of the Association. -During 1948 it purchased materials valued at about
$55,000. Of this total, materials valued at about $10,000 had their origin out-
side New York.
F. Anthony Sanuedi, Sr.: Sanucci is a masonry contractor. His entire volume
of business in 1948 amounted to $15,523.26, and his purchases of materials were
valued at $7,538.67. Purchased materials valued at $1,848.14 had their origin
outside the State of New York. . According to Sanucci's testimony, most of his
work consists of "small jobs" or repairing.
Now, THEREFORE, the said Trial Examiner, being fully advised in the premises,
having duly considered the entire record in the case, particularly as to the com-
merce allegations and evidence, is of the opinion that the operations of the re-
spondent employers, and each of them, are essentially local in character. The
Trial Examiner is of the further opinion that the organization of local contractors
into an Association' which represents them in collective bargaining does not trans-
form the nature or extent of the business performed by its members as individ-
uals. .In view of present Board policy, set out in Indianapolis Cleaners 6
Launderers Club, and in other cases ,' and although it does not appear that the
operations of the respondent employers in the above-captioned cases are wholly
unrelated to commerce, the Trial Examiner is of the opinion that assertion of
jurisdiction in these cases, or any of them,.would not effectuate the policies of
the National Labor Relations Act ;
Said motions urging dismissal upon jurisdictional grounds are hereby granted ;
and it is hereby
ORDERED, that said complaints, and each of them, be dismissed in their entirety.
Any party may obtain a review of the foregoing order, pursuant to Sec. 203.27,
Rules and Regulations, Series 5, as amended August 18, 1948, by filing a request
therefor with the Board, stating the grounds for review, and immediately on
such filing serving a copy thereof on.the Regional Director and the other parties.
Unless such request for review is filed within 10 days from the date of the order
of dismissal, the case shall be closed.
CHARLES W. WHITTE\IORE,
Trial Examiner.
Dated : November 1, 1949.
1 17. T. Gresham Company, Inc ., 85 NLRB 891 ; Building and Construction Trades Council
of Pittsburgh, Pa., at al, 85 NLRB 241; Indianapolis Cleaners & Launderers - Club, 85
NLRB 1198.