Charles E. Forrester

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 519 (N.L.R.B. 1971)

CHARLES E. FORRESTER 519
Charles E. Forrester and Operative Plasterers' and
Cement Masons ' International Association of the
United States and Canada ; Albert H. Meinert;
Subordinate Local Union No. 156 of the Operative
Plasteres ' and Cement Masons' International Asso-
ciation of the United States and Canada ; and Paul
Edwards, Bob Cooper, Clifford Starchman , Delbert
W. Cooper, and Carl Daniel . Case AO-130
March 31, 1971
ADVISORY OPINION
This is a petition filed on February 10, 1971, by
Charles E. Forrester, herein called the Petitioner, for
an Advisory Opinion in conformity with Sections
102.98 and 102.99 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
and Section 101.39 of the Board's Statement of
Procedure to determine whether the Board would
assert jurisdiction.
In pertinent part, the petition alleges as follows:
1. There is pending before the United States District
Court for the Western District of Missouri, Southern
Division, a civil action under docket No. 2689 filed by
the Petitioner herein and alleging, inter alia, that
Operative Plasterers' and Cement Masons' Interna-
tional Union of the United States and Canada, its
subordinate Local No. 156, and certain of their
named agents, hereinafter referred to collectively as
the Unions, violated the Labor-Management Report-
ing and Disclosure Act of 1959, 29 U.S.C. Sec. 411, et
seq., and Section 8(b)(1)(A) and (2) of the National
Labor Relations Act by disciplining and expelling the
Petitioner from membership in said Unions. The
petition also alleges that on October 21, 1970, the
Petitioner filed a charge with Region 16 of the
National Labor Relations Board, Case 16-CB-580,
which he subsequently amended on December 29,
1970, alleging that by the above-described acts and
conduct the Unions and their agents had violated
Section 8(b)(1)(A) and (2) of the National Labor
Relations Act. On December 30, 1970, the Regional
Director for Region 16 dismissed the Petitioner's
charge on grounds that the operations of the Employ-
er, T. L. Kidd, a/k/a Okie Cement Contractor, did
not satisfy the Board's discretionary standards for the
exercise of jurisdiction. On March 10, 1971, the
General Counsel of the National Labor Relations
Board dismissed the Petitioner's appeal of the
Regional Director's dismissal of the charge.
2. At an undisclosed time the Petitioner was
employed in the performance of cement masonry
work by C. Watts Construction Company, hereinafter
called Watts, at a building project located at Miami,
Oklahoma. However, upon a dispute between the
Unions and Watts related to the status of Watts as a
nonunion contractor, Watts subcontracted the ce-
ment masonry work on the project to T. L. Kidd,
a/k/a Okie Cement Contractor, and the Petitioner
obtained and continued employment with T. L. Kidd.
3. Upon the contents of the petition and its
supporting documents, it appears that T. L. Kidd,
a/k/a Okie Cement Contractor, hereinafter called the
Employer, is an individual proprietorship with an
office and principal place of business located at Tulsa,
Oklahoma. The Employer is engaged in business as a
cement masonry contractor and has a gross annual
volume of income of approximately $ 25,000. The
petition reflects that in the course and conduct of his
business operations the Employer provides only
workmen and labor and does not purchase or supply
materials. There is no allegation that the Employer's
operations extend beyond the bounds of the State of
Oklahoma.
4. In the contentions advanced in his petition, the
Petitioner appears to assert that, notwithstanding that
the operations of his Employer fail to satisfy the
Board's discretionary standards for the assertion of
jurisdiction, the Board could assert jurisdiction on the
basis of the operations of Watts. In support of this
contention the petition alleges that Watts derives
annual income in excess of $50,000 from its interstate
operations and annually purchases goods and materi-
als valued in excess of $ 200,000 from sources located
outside the State of Oklahoma. However, the petition
does not allege any relationship between the Employ-
er and Watts other than the usual relationship
between a subcontractor and a contractor in the
building and construction industry.
5. Alternatively, the Petitioner appears to contend
that the Unions involved in the charge filed with the
Board and in the district court action are engaged in
interstate activities, and that the Board might exercise
its jurisdiction on this basis. There is no allegation,
however, that the Unions are employers, or that any
employment relationship exists between the Petitioner
and the Unions.'
6. There is no representation or unfair labor
practice proceeding involving the same labor dispute
pending before the Board.
Although served with a copy of the petition, no
response as provided for in the Board's Rules and
Regulations has been filed by any of the parties.
On the basis of the above, the Board is of the
opinion that:
1. The Petitioner's Employer, T. L. Kidd, a/k/a
I
Section 2(2) of the National Labor Relations Act, as amended , anyone acting in the capacity of officer or agent of such labor
provides in pertinent part that , "The term 'employer ' shall not include organization"
any labor organization (other than when acting as an employer), or
189 NLRB No. 80
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Okie Cement Contractor, is an individual proprietor-
ship engaged in a nonretail enterprise as a cement
masonry contractor in the building and construction
industry.
2. The current standard for the assertion of
jurisdiction over nonretail enterprises is an annual
inflow or outflow, direct or indirect, across state lines
of at least $50,000. The Employer's annual volume of
income from all sources is less than $50,000, and this
amount is insufficient to satisfy the Board's current
standard for the exercise of jurisdiction over this
enterprise.
Accordingly, the parties are advised, pursuant to
Section 102.103 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
that, upon the allegations submitted herein, the Board
would not assert jurisdiction over the operations of
the Employer with respect to disputes cognizable
under Sections 8, 9, and 10 of the Act.