Denver Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Mar 21, 1950

88 N.L.R.B. 1321 (N.L.R.B. 1950)

In the Matter of DENVER BUILDING AND CONSTRUCTION TRADES CioUN-
CIL and B. W. FELLERS, INC.
Case No. 30-CC-5'.-Decided March 21, 1950
DECISION
AND
ORDER
On October 27, 1949, Trial Examiner Sidney Lindner issued his;
Intermediate Report in the above-entitled proceeding, recommending
that the complaint be dismissed on the ground that the Employer's
business is essentially local in character, and that it would not effectu-
ate the policies of the Act to assert jurisdiction over its operations, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief; the Respondent filed a brief in support
of the Intermediate Report.
The Board has reviewed the Trial Examiner's rulings 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 briefs, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondent, Denver Building and Construction Trades Council, be, and
it hereby is, dismissed.
MEMBERS REYNOLDS and STYLES took no part in the consideration of
the above Decision and Order.
INTERMEDIATE REPORT
Margaret L. Fassig and James K. Sullivan, for the General Counsel.
Philip Hornbein, Jr., of Denver, Colo., for Denver Building and Construction
Trades Council.
Horace F. Phelps, of Denver, Colo., for B. W. Fellers, Inc.
88 NLRB No. 212.
1321
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge filed on September 8, 1948, by B . W. Fellers , president
of B. W. Fellers , Inc., herein called Fellers , the General Counsel of the National
Labor Relations Board ,' by the Regional Director for the Seventeenth Region
-(Kansas City , Missouri ), issued his complaint dated November 23, 1948, against
Denver Building and Construction Trades Council , herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (b) (2) and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, as
amended by the Labor Management Relations Act, 61 Stat. 136, herein called the
Act. Copies of the charges and the complaint accompanied by notice of hearing
thereon were duly served upon the Respondent and Fellers.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent : ( 1) from and since February 1948 demanded that Fellers
discharge its nonunion employees and employ only members of unions affiliated
with it; ( 2) on or about May 6, 1948, in order to force Fellers to comply with
its demand , set forth above, authorized the placing of a picket , and on or about
May 7, 1948, did picket and at all times subsequent thereto has picketed the con-
struction jobs of Fellers in Arapahoe County , Colorado, and city of Denver,
Colorado ; ( 3) since on or about May 6, 1948 , in order to force Fellers to comply
with its demand , set forth above , has induced subcontractors to refuse to per-
form services for Fellers ; and (4 ) by such acts the Respondent has attempted
and is attempting to cause Fellers to discriminate against its employees in
violation of Section 8 (a) (3) and thereby has engaged and is engaging in con-
duct in violation of Section 8 (b) (2) of the Act.
The Respondent 's answer duly filed admitted certain allegations of the complaint
but denied that it had engaged in any unfair labor practices . The answer also
contained motions for the dismissal of the complaint on the grounds that (1) the
unfair labor practices alleged do not affect commerce within the meaning of the
Act; (2) it does not set forth facts which constitute an unfair labor practice;
(3) the Act is unconstitutional as being in derogation of the First , Fifth, and
'Thirteenth Amendments to the Constitution of the United States; and ( 4) that
.Respondent 's conduct , peaceable at all times , was an exercise of its right of free
speech protected by the First Amendment to the Constitution of the United States
and by Section 8 (c) of the Act.
Pursuant to notice a hearing was held on December 8, 9, and 10, 1948 , at Denver,
'Colorado , before the undersigned Trial Examiner duly designated by the Chief
'Trial Examiner . The General Counsel, Respondent , and Fellers were represented
by counsel and participated in the hearing . Full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bearing upon the
issues was afforded all parties. On December 30, 1948, counsel for the Respondent
filed a motion with the undersigned to hold a further hearing in this matter or to
hold in abeyance the proceedings for the reasons that the purported record of the
testimony was inaccurate , unintelligible , garbled, and did not correctly or accu-
rately report the testimony given before the undersigned , and was impossible tot
correct. Counsel for the other parties joined in the motion . The undersigned
upon consideration of the motion and examination of the transcript of proceedings
ordered that the record of the testimony be set aside , and a bearing de novo wasy
held before the undersigned pursuant to notice at Denver , Colorado, on March 15
and 16, 1949 . At the outset of the hearing , Respondent 's motions to dismiss on the
'The General Counsel and his representatives at the hearing are herein called the Gen-
eral Counsel and the National Labor Relations Board is called the Board.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 1323
grounds set out hereinabove were denied with leave to renew at any time during
the proceedings . Upon the renewal of these motions at the conclusion of the
hearing, the undersigned reserved decision , and the same are disposed of as is
hereinafter set forth . Oral argument was waived . After the close of the hear-
ing, briefs were received from counsel for the General Counsel and the Respondent,
and the latter also submitted proposed findings and conclusions .2
Upon the entire record in the case , and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE ORGANIZATION INVOLVED
Denver Building and Construction Trades Council is a labor organization as
defined in Section 2 ( 5) of the Act composed of delegates allotted on the basis of
membership who represent the various local labor unions the members of which
are engaged in the building and construction industries at Denver , Colorado.
II. THE BUSINESS OF THE CHARGING PARTY
B. W. Fellers , Inc., the charging party herein , is.a Colorado corporation , with its
office and place of business in Denver , Colorado, engaged in residential and com-
mercial construction 3 in Denver , Colorado , and vicinity , and in designing plans
for the use of other contractors in Colorado and Wyoming'
. During the fiscal year ending April 30, 1948, Fellers did a total business in
the amount of $300,322 .49, and made purchases of materials and supplies valued
at $94,034.69 . With the exception of one item valued at approximately $350,
which was shipped to Fellers from a point of ,origin outside the State of Colorado,
all materials and supplies were purchased locally from Colorado suppliers and
wholesalers . Of the materials and supplies thus purchased during the period
herein described , approximately $58,729.38 or 62 percent consisted of goods
originating outside the State of Colorado . During the same fiscal year, Fellers
paid its subcontractors $113,093.11 for material and labor costs on Fellers' con-
struction jobs. Of this amount approximately $30,750 represents the value of
materials which originated outside the State of Colorado . In addition ,. Fellers
during this fiscal year paid total insurance premiums in the amount of $3,065.69
for insurance carried with a number of companies , all of whose home offices are
located outside the State of Colorado.
During the 6-month period following the fiscal year hereinabove described,
Fellers' total business increased in volume as did its purchases of materials and
supplies . During this latter period however, it did not purchase any materials
and supplies directly from outside the State of Colorado , so that during the
2 In view of the recommendations hereinafter made, the undersigned deems it unnecessary
to act upon the Respondent 's proposed findings and conclusions.
3 Fellers is primarily a builder of residential houses. The record reveals that the only
commercial construction engaged in by Fellers was a garage . Miles V. L. Lantz , secretary-
treasurer of Fellers , testified that even though Its contract for the construction of the
garage included the architectural services , assistance on the ground location , and the con -
tracting , Fellers subcontracted almost all of the actual work.
4 The stipulation entered into between the parties upon which the findings regarding the
organization involved and the business of the charging party are based merely notes the
fact that a phase of Fellers ' business is the designing of plans for the use of other con-
tractors in Colorado and Wyoming . No further evidence regarding this phase of Fellers'
business was offered at the hearing . The undersigned cannot determine , therefore, what
percentage, if any , of the charging party's total business during the period in question
herein , was derived from the designing of plans for the use of other contractors whose places
of business are located outside of the State of Colorado.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18-month period herein described, the only purchase of materials from without
the State of Colorado shipped directly to Fellers was in the amount of $350.
Hallack & Howard Lumber Company of Denver , Colorado , is the principal
supplier of materials to Fellers . It does an annual business valued in excess of.
$7,000,000 and approximately 90 percent of the materials purchased by it for
resale originate outside the State of Colorado . Hallack & Howard maintains a
sawmill at Cascade, Idaho , and a branch purchasing office at Eugene , Oregon.
Between 85 to 90 percent of Hallack & Howard 's sales to Fellers, which amounted
to $42,644 during the year 1948 , were made on orders placed in advance by Fellers,
and the materials thus ordered were earmarked for Fellers prior to shipment
from the point of origin outside the State of Colorado. Such materials however
were purchased at the point.of origin outside the State of Colorado by Hallack &
Howard , shipped by it and consigned to it in the State of Colorado , Fellers having
no right, title , or interest in such materials prior to the time they arrived in
Denver and were delivered to Fellers . For the most part, shipments of building
materials from outside the State of Colorado to Halleck & Howard in Denver are
made in carload lots. Materials destined for Fellers are contained in these
carload shipments and are not segregated from other materials until received
in Denver by Hallack & Howard.
Early in 1948, Fellers entered into a contract with E. E. Ambrose , a.realtor in
Colorado , to construct a residence in Bow-Mar , Colorado, to be known as the
Dream House. The plans for the construction of the Dream House , which was
to be completed simultaneously with the release of the motion picture "Mr.
Blandings Builds His Dream House ," were approved by E. E. Ambrose and the
Selznick Studio of California . The Selznick Studio advertised the motion pic-
ture in national publications and included Fellers' name as the builder of the
Denver Dream House. Some of the materials which went into the construction
of the Dream House, purchased and installed by subcontractors on a labor and
material basis, came from General Electric Company of Schenectady , New York,
American Standard Radiator Co. of Pittsburgh , Pennsylvania , Yale and Towne
of New Britain , Connecticut , and Nu-Tone Chimes of California . The total cost
of construction of the Dream Rouse was $29,481.70, of which the material cost
was $10,941.39.
Conclusions
It is apparent from the foregoing that Fellers is a local general contractor
engaged primarily in resident construction with an occasional commercial job,
performing all of its work in Denver, Colorado, and vicinity. With one excep-
tion, i. e., the shipment to it of materials valued at $350 directly from outside the
State of Colorado, it purchases all of its materials from suppliers located within
the State of Colorado . To be sure , much of the material purchased by Fellers and
its subcontractors from local suppliers originated outside the State of Colorado.
But as the Board noted in the Petredis and Fryer case, 85 NLRB 241, "This fact
may establish that the Federal power under the commerce clause of the Constitu-
tion could be exercised in this case . But it is not dispositive of the issue of
whether this Board should exercise this power , in employing its discretion only
where the policies of the Act will be effectuated."
. The basic jurisdictional facts in this case are practically similar to those in
the Petredis and Fryer case, except that in the latter case the dollar volume of
the primary contractor 's total business and materials purchased was substan-
tially larger than Fellers'. In recommending the dismissal of this proceeding
the undersigned is guided by the Board's recent decisions in the Walter J. Mentzer
case, 82 NLRB 389, where it was held " that the operations of Respondent Mentzer,
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 1325
a small contractor, are essentially local in character, and that their interruption
by a labor dispute could, at most, have only very remote and insubstantial effect
on commerce," and in the Petredis and Fryer case, supra, where the Board said:
On the basic jurisdictional facts, . .., this case involves at the very
most an impact on commerce no greater and no less remote than that present
in the recent Mentzer case, ... Nor does the fact that this case, unlike
the Mentzer case, involves an allegation of a secondary boycott dictate
a different result here.' For reasons stated in the Mentzer opinion, we find
that it will not effectuate the purposes or policies of the Act to exercise juris-
diction in the instant proceeding, and we shall therefore dismiss the
complaint'
RECOMMENDATIONS
For the reasons above set forth, the undersigned recommends that the com-
plaint herein be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon , together with
the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs , the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of. the record relied upon and shall be
legibly printed or mimeographed and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said
Section 203.46 should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.43 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Signed at Washington, D. C., this 27th day of October 1949.
SIDNEY LINDNER,
Trial Examiner.
"Compare Walter J. Mentzer, supra ; and International Brotherhood of Electrical
Workers, Local 501 (AFL ), et al. ( Samuel Langer ), 82 NLRB 1028 , and Chairman Herzog's
comments in the opinion therein.
"Local 905 of the Retail Clerks International Association (AFL) (A-1 Photo), 83
NLRB 564.
Member Reynolds would be disposed to assert jurisdiction in this proceeding on the basis
of recent cases in which the Board has asserted jurisdiction over the building and con-
struction industry. ( See Gould and Preisner, 82 NLRB 1195 ; Ira A. Watson Co., 80
NLRB 533 .) However, he agrees that the effect upon commerce in the instant case is no
greater than that presented in the Mentzer case, and deems himself bound by the majority
decision in that case.