East Side Sanitation Service, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1977

230 N.L.R.B. 632 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Side Sanitation Service, Inc. and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 20. Case
8-CA-9780
June 30, 1977
DECISION AND ORDER REMANDING
THE PROCEEDING TO THE
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On December 29, 1976, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and Respondent filed cross-exceptions, an
answering brief, and a brief in support of the
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge ordered the com-
plaint dismissed on the ground that Respondent's
annual inflow across state lines did not meet the
Board's discretionary jurisdictional standard of at
least $50,000 for a nonretail enterprise, whether such
inflow is regarded as direct or indirect.' General
Counsel contends that the standard was met and we
should assert jurisdiction. We agree with General
Counsel's contention and, accordingly, shall remand
the proceeding to the Administrative Law Judge for
decision on the merits.
Although we accord little weight to the stipulated
dollar amounts of direct and indirect inflow due to
the disagreement by the parties as to the amounts
stipulated, it is clear that Respondent's direct and
indirect inflow exceeds $5,000. In addition, in 1975,
Respondent purchased 13 collection containers for
$3,200 and two garbage trucks for $82,527.83. The
Administrative Law Judge found that the trucks were
not purchased as replacements for original equip-
ment but were new purchases to accommodate
Respondent's expanding trash collection business
and, therefore, should be considered nonrecurring
I Siemons Mailing Service, 122 NLRB 81 (1958).
2 Cf. Magic Mountain, Inc, 123 NLRB 1170 (1959), in which the Board
refused to assert jurisdiction on the basis of nonrecurring capital expendi-
tures alone.
3 For the reasons cited by the Administrative Law Judge, we agree that
the trucks, which were manufactured in Indiana and were purchased by
Respondent in Ohio, constitute indirect inflow.
230 NLRB No. 89
capital expenditures. He did not add these figures to
the stipulated amount to determine jurisdiction
because, in his opinion, to do so "would amount to
the Board asserting jurisdiction over the Respon-
dent's business almost solely on the basis of its
nonrecurring capital expenditures for the trucks and
containers."
The Board's practice, however, is to include
nonrecurring capital expenses if such expenses are
not the only items of inflow. Cemetery Service
Corporation (Parkview and Springdale Cemeteries),
149 NLRB 604 (1964); Snowshoe Company, 212
NLRB 535 (1974).2 Since the stipulated inflow
exceeds $5,000 (not an insubstantial amount), it is
clear that the containers and garbage trucks3 do not
constitute the only items of inflow. Accordingly, even
if these expenses are considered nonrecurring capital
expenditures, in accordance with our practice, we
shall add the amount attributable to such expenses to
the stipulated amount to determine jurisdiction.
Since the resulting total of direct and indirect inflow
exceeds $50,000, we will assert jurisdiction. 4
The Administrative Law Judge, in dismissing on
jurisdictional grounds, did not consider the unfair
labor practices alleged. Accordingly, we shall remand
this proceeding to the Administrative Law Judge for
a full decision on the merits.
CONCLUSION OF LAW
East Side Sanitation Service, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to Administrative Law Judge
Elbert D. Gadsden for such further action as is
required in light of our decision herein to assert
jurisdiction.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
an unfair labor practice charge filed on January 29, 1976, a
complaint was issued by the Regional Director for Region
8 on March 3, 1976, alleging that the Respondent
interfered with, coerced, and restrained its employees by
giving them the impression they were under surveillance
for their union interest and/or activities, by so interrogat-
' In view of our disposition herein, we find it unnecessary to decide if the
purchase of trucks and similar equipment should be considered as
nonrecurring capital expenditures or regular operating expenses where the
Employer, as here, is engaged in the business of the collection and disposal
of solid refuse.
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EAST SIDE SANITATION SERVICE, INC.
ing an employee as to create the impression of surveillance
of his union interest or knowledge of union activity, and by
threatening an employee with closedown of its operations if
the employees designated the Union their collective-bar-
gaining representative, all in violation of Section 8(a)(1) of
the Act; that the Respondent laid off and/or terminated
the employment of several of its employees and thereafter
refused to reinstate them because it believed they had
assisted the Union and/or engaged in protected concerted
activities, in violation of Section 8(a)(3) of the Act; and
that Respondent unilaterally changed its prior wage policy
of its employees and unilaterally offered its truck operators
a bonus if they would voluntarily perform their duties
without assistance, in violation of Section 8(a)(5) of the
Act.
In its answer the Respondent not only denied the
allegations set forth above but also denied the Board's
jurisdiction to litigate the allegations.
This case was held before me in Toledo, Ohio, on June
29 and 30, 1976. Briefs, which have been carefully
considered, have been received from counsel for the
General Counsel and counsel for the Respondent.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is now, and has been at all times
material herein, an Ohio corporation with its office and
only place of business located in Genoa, Ohio, where it is
engaged in the collection and disposal of solid refuse.
During the past year, the stipulated and credited evidence
of record established that the following purchases of goods
were shipped to the Respondent directly from outside the
State of Ohio:
$69.90-cleaning fluid parts from Elgin, Illinois.
$18.02-tailgate lock rod from Detroit, Michigan.
$32.00-exit safety signs from Minneapolis, Minnesota.
$68.80-mesh net for trucks from Maurray Hill, North
Dakota.
$141.25-lubricant grease from Atlanta, Georgia.
$330.97-total purchases of goods
As counsel for the General Counsel contends, these
purchases clearly constitute direct inflow as defined by the
Board in Siemons Mailing Service, 122 NLRB 81 (1958),
and are proper items for consideration in computing
jurisdictional amount.
The parties stipulated that Respondent purchased the
following items from suppliers located in the State of Ohio
who in turn had received such goods in an unchanged form
from outside the State of Ohio:
$448.24-paint from a dealer in Toledo, Ohio, who
received paint from dealers in Missouri and Iowa.
I credit the testimony of Mr. Robert Leggio because, not only was I
persuaded from his demeanor that he was testifying truthfully, but also
because he is a disinterested third party in this proceeding and would have
no apparent motive to be untruthful and, additionally, because the
$737.35-motor oil from dealer in Toledo, Ohio, who
received oil from Penns Oil in Oil City, Pennsylvania.
$774.18-Truck parts from dealer in Toledo, Ohio, who
received parts from dealer in Michigan.
$2,250.06-Truck parts from dealer in Toledo, Ohio,
who received them from dealer in Michigan.
$797.88-Auto springs purchased from dealer in
Toledo, Ohio who received them from dealer in
Pennsylvania.
$5,444.08-total
The evidence of record does not show that any of the
above items represented a purchase of capital goods. As
they stand on the record they appear to be recurring
necessary materials and parts used in the operation of
Respondent's business and, therefore, constitute a value of
$5,444.08 of indirect inflow business as defined by the
Board in Siemons, supra, as contended by counsel for the
General Counsel. The combined direct inflow and indirect
inflow business described above amounts to a grand total
of $5,775.05.
Although the Respondent was willing to stipulate that
$797.88 of the springs it purchased from Ohio Spring
Service were in an unchanged form, an executive represen-
tative from the Ohio Spring Service, Inc., of Toledo, Ohio,
testified that Respondent actually purchased springs for
$1,547.35 in 1975. Of that amount, $150 was spent on
labor, which when subtracted from the total amount leaves
an actual amount of $1,397.35 for springs. Since the
Respondent did not dispute or refute the cost of the labor, I
credit the testimony of the Ohio Springs Service representa-
tive.
While the Respondent concedes that the springs pur-
chased from Ohio Spring Service in Toledo were received
by Ohio Spring Service from a manufacturer in Pennsylva-
nia, it nevertheless contends that the springs were altered
and therefore ceased to be a part of the flow of commerce.
However, Mr. Leggio, owner and operator of Ohio Springs
Service, testified that, during the year 1975, he sold and
installed on Respondent's trucks without charge several
heavy duty suspension springs which he received from
Triangle Auto Spring Company in DuBois, Pennsylvania,
for $1,203.16. In some instances he said he replaced broken
leads in the springs for a total sales price, plus labor, of
$1,203.16, including tax, on which he made no changes.
The springs on which he had to make lead changes totaled
$749.44 plus $33.73 tax; and for the entire year 1975
Respondent's total purchases from him were $1,547.35, less
$150 for labor, leaving a total of $1,397.35 spent for
springs. '
The credited evidence further established that during
1975 the Respondent purchased two garbage trucks for a
total price of $78,974, plus $3,553.83 in sales tax, for a total
of $82,527.83. The trucks were manufactured in Fort
Wayne, Indiana.
According to the credited testimony of John Dooley,
president of LaGrange International Trucks, Inc., of
Toledo, Ohio, distributor for International Trucks, in 1975
Respondent did not dispute or offer any evidence in opposition to his
testimony. Consequently, I find that the Respondent paid $1,397.35 for
indirect inflow purchases of springs.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he arranged for the purchase of the two trucks from
International Harvester Motor Truck Branch in Valley
View, Ohio; the trucks were in turn sold by LaGrange to
the Respondent. It further appears that the trucks were first
held by two different dealers for a short while in the
Cleveland, Ohio, area before they were transferred to a
LaGrange Company owned facility in Toledo. Neither
dealer in the Cleveland area ever had an automobile title to
the vehicles. International Harvester obtained the trucks
from the prior company through a floor plan and all of the
financial arrangements were made through its Columbia,
Ohio, business office. While displaying the trucks, the prior
intermediate dealers paid no interest on the loans it took
from International Harvester of Indiana to display the
trucks in their shops. Such sales of trucks handled through
dealers in Ohio are handled under a manufacturer's
statement of origin, Ohio being a title State.
The only change LaGrange Harvester of Toledo said it
made on the trucks, before transferring them to the
Respondent, was the tires on one of the trucks, at a cost of
$560, less a setoff for the original tires thereon amounting
to $324. The other intermediate transfers of the trucks were
simply paper transactions between the intermediate truck
dealers. The evidence further shows that, although the
chassis of both trucks were manufactured in Fort Wayne,
Indiana, they had to have a garbage packer placed on each
truck. The packers were ordered by Respondent through
another local dealer in Ohio, Fischer Truck & Trailer
Equipment Company, who thereafter drove the chassis to
Fort Payne, Alabama, for assembly of the packers, and
then to Toledo, Ohio, as an agent for the Respondent. The
only work performed on the packers by the Fischer Truck
Company was to check the installation of the packers.
The Respondent contends that the springs purchased
from Ohio Spring Company should not be considered
items of inflow because the lead work performed upon
them by the seller constituted an alteration of the product
excluding them as items of inflow; that the one truck on
which LaGrange changed the tires also constituted an
alteration excluding that truck from inflow for jurisdiction-
al purposes; that the two trucks should not be included as
indirect inflow because they were not obtained by
LaGrange of Toledo directly from the manufacturer in
Fort Wayne, Indiana; and that, since the packers were
actually obtained by the local dealer from a manufacturer
in Fort Payne, Alabama, and their assembly was checked
by the Ohio seller, Fischer Truck, such assembly of the
trucks removed them from the inclusion of inflow.
Findings
Based upon the foregoing evidence of record, I conclude
and find that the mere deletion of some leads from some
springs, and the insertion of new leads in substitution
thereof, is at most a minor substitution of a part (which
itself was purchased from out of State) and did not
constitute a material alteration of the springs rendering
them so entirely different from the product shipped from
out of State, as to remove them from inflow consideration
for jurisdictional purposes. John J. Harris & Scotty Harris,
d/b/a Culligan Soft Water Service, 149 NLRB 2 (1964).
Likewise, it does not appear plausible that the mere change
of tires on one truck could be deemed a material alteration,
so significant and different that a reasonable conclusion
could be drawn that the truck was essentially no longer a
truck. Nor do I conceive the mere assembly of packers on
the chassis of trucks or the checking of such installation to
constitute a break in the flow or a material alteration in the
products so as to exclude them from indirect inflow.
Rather, I view the assembly of the packers on the trucks as
a necessary addition to the chassis, with neither the chassis
nor the packers materially altering the other. In fact, both
the packers and the chassis arrived in Ohio in unchanged
form and were only assembled on the chassis from which
they can be disassembled.
It is further observed that the packer dealer in Alabama
did not acquire an indebtedness or a dealer's title to the
truck chassis, but only authority to assemble its packers
thereon pursuant to instructions from the Ohio dealer
(Fischer) who was acting as an agent for the Respondent.
Hence, it is clear that, as far as direct purchases go, the truck
chassis came directly from Fort Wayne to the Toledo,
Ohio, dealer, only making an accommodation stop in Fort
Payne, Alabama, under the direction of the Ohio dealer
(Fischer). Thus, I find neither a material alteration of the
subject products nor a break in the flow of the truck chassis
and packers. In any event, both were purchased from out
of the State.
Although Ohio laws might consider a retail sales dealer
the owner of a vehicle for the purpose of reselling such
vehicle to an ultimate purchaser, it was noted that the two
trucks in the instant case were on display at two different
dealers in the Cleveland area, and that there was no
transfer of title of personal ownership to either dealer as is
recognized under the motor vehicle laws of the State of
Ohio, or as ownership by a respondent is recognized by the
Board for jurisdictional purposes.
The Respondent stipulated that it purchased 13 collec-
tion containers (dumpers) for $3,200 from an Ohio
corporation, which in turn received them in an unchanged
form from a corporation in Indiana. The Respondent
contends that the purchase of the containers and the trucks
should not be included in determining inflow for jurisdic-
tional purposes because they represent nonrecurring
capital expenses. Specifically, the record further shows
that:
In 1967 Respondent purchased two open trucks.
In January 1968 Respondent purchased a sideload
packer.
In 1969 Respondent purchased a rearload packer.
In 1970 Respondent purchased a packer to accom-
modate an increase in business.
In 1971 Respondent purchased a Chevy pickup truck
to service its other trucks.
In 1972 Respondent purchased two packers to keep
pace with expanding business.
In 1973 Respondent purchased I packer and 30
containers (hook-on and off dumpers)
In 1974 Respondent purchased a pickup truck as a
backup truck and 23 containers (hook-on and off
dumpers).
In 1975 Respondent purchased two packers with a
larger capacity and 13 containers (hook-on and off
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EAST SIDE SANITATION SERVICE, INC.
dumpers), at which time he traded in an old 1968 and a
1969 trash collection truck.
Respondent said there would not be any new purchases
of trucks in 1976 because business has declined and it has
at the present time one truck which is idle at least 3 days a
week. Respondent's gross income for 1975 was $367,929.81.
Arguments
Counsel for the General Counsel contends that the above
purchases show a relatively consistent pattern of trash
collection trucks and container purchases and that, as such,
they represent recurring expenses necessary to the opera-
tion of the Respondent's business. General Counsel further
contends that, since the trucks were not the only Itype of
expenditures involved, considering Respondent's purchases
of oil, springs, exit signs, grease, truck parts and paint, the
1975 purchase of the trucks and containers are proper
items for assessing the Respondent's nonretail indirect
inflow, citing Cemetery Service Corporation (Parkview and
Springdale Cemeteries), 149 NLRB 604 (1964), and Snow-
shoe Company, 212 NLRB 535 (1974). However, in this
regard, it is noted, as counsel for the Respondent argues,
that the total admitted inflow in Cemetery Service is
substantial ($43,123) compared with the employer's pur-
chases of nonrecurring capital equipment for a total of
$11,097, which the Board held, when added to the $43,123
inflow, was sufficient to meet the $50,000 jurisdictional
standard. The combined totals were sufficient because the
$11,097 in capital equipment also represented material used
in the employer's operation.
Similarly, the Board held in Snowshoe Company, supra,
that, where capital purchases are counted for purposes of
applying the Board's nonretail inflow test, such purchases
will be counted if they are not the only items of inflow.
There, the employer made over $1 million in nonretail
capital expenditures and received over $450,000 from the
sale of memberships; the combination of these nonretail
and retail items of inflow surpassed the Board's jurisdic-
tional standard for a nonretail business and thereby
justified the Board's asserting jurisdiction for such nonre-
tail business; and, in view of the interstate character of the
employer's operations and their substantial effect on
interstate commerce, the employer was found to be an
employer engaged in commerce within the meaning of the
Act.
Counsel for the General Counsel argues alternatively
that, since the Respondent made other direct and indirect
inflow purchases for $8,975, on my computations $9,398.91
or $10,796.26, the purchases of the trucks and containers in
1975 should be included in assessing Respondent's indirect
inflow. However, as counsel for the Respondent points out,
past decisions of the Board have included nonrecurring
capital expenditures in assessing inflow when a Respon-
dent has other recurring capital expenditures of inflow
which are substantial, citing Cemetery Service Corporation,
supra; and Snowshoe Company, supra.
In Magic Mountain, Inc., 123 NLRB 1170 (1959), cited
by counsel for Respondent, the employer was engaged in
the construction of an amusement park and had received
capital goods in connection with such construction valued
at more than $100,000 which was shipped directly to it
from sources outside of the State. Since the construction
was to be completed within a 12-month period and all such
purchases of capital goods would then cease, the Board
held that it had long since established that it would not
assert jurisdiction over an employer's business on the basis
of nonrecurring capital expenditures alone and that, since
the present employer's operation, aside from its capital
expenditures, did not have sufficient impact on interstate
commerce to warrant assertion of jurisdiction at that time,
jurisdiction was not asserted.
Accordingly, I conclude and find that the Respondent's
out-of-state purchases of goods and materials used in the
maintenance and operation totaling either $8,975.00,
$9,398.91, or $10,796.26, demonstrates the intrastate char-
acter of the Respondent's business as well as their
insubstantial effect on interstate commerce. To add to
either one of the above-stated totals Respondent's capital
expenditures in the amount of $82,527.83 (for purchase of
two trash collection trucks in 1975) would amount to the
Board assertingjurisdiction over the Respondent's business
almost solely on the basis of its nonrecurring capital
expenditures for the trucks and containers.
Analysis and Conclusion
The priority and possibly the dispositive question
presented for determination in this case is whether the
Respondent's business operations so affects the flow of
commerce as to justify the Board's discretionary assertion
of jurisdiction over the dispute herein. An examination of
the evidence of record, which is essentially free of conflict,
clearly establishes that the Respondent's business opera-
tion is primarily local in nature and scope. More specifical-
ly, the Respondent is engaged in the business of collecting
and disposing of solid waste for about 750 residential and
250 commercial customers. Its sphere of operation covers
an area of 50 miles, including the counties of Lucas, Wood,
Ottawa, and Sandusky, surrounding Toledo, Ohio. Re-
spondent has approximately six collection trucks on which
two and, on some occasions three, men are assigned to
collect and empty the trash into the trucks. The trash is
then compacted in the trucks and transported to a landfill
where it is dumped.
The record further shows that during the year 1975
Respondent purchased direct and indirect inflow goods
and materials used in the maintenance and operation of its
trucks for a value of $5,775.05. It also purchased directly or
indirectly from out of State 13 trash containers used in
conjunction with its trucks for a value of $3,200, bringing
the total of such out-of-state purchases to $8,975.05.
During the same period, the Respondent also purchased oil
from an Ohio dealer, of which $423.86 is estimated to have
been paid for oil obtained from out of State, thus possibly
bringing its total direct and indirect inflow purchases to
$10,796.26. The parties agree that neither the $8,975.05
total nor what would result in the partially disputed
$10,796.26 total satisfies the Board's $50,000 jurisdictional
standard.
Counsel for the General Counsel contends, however,
that, when either of the above-described total purchases is
added to the Respondent's indirect inflow purchase of two
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trash collection trucks for $82,527.83, the Board's jurisdic-
tional standard of $50,000 is more than satisfied and
jurisdiction should be asserted herein to effectuate the
policies of the Act. On the contrary, counsel for the
Respondent argues that jurisdiction should not be asserted
herein because the two trash collection trucks purchased by
the Respondent were not items of indirect inflow because
the seller (LaGrange International Trucks of Toledo) did
not receive the trucks directly from out of State but, rather,
through two prior intermediate dealers within the State,
and therefore the trucks were removed from inflow
commerce. In support of its position counsel for the
Respondent cites the Board's decision in Kingsbury Electric
Cooperative, Inc., 138 NLRB 577 (1962). However, my
reading of the Kingsbury case does not reveal any language
used by the Board which restricts the meaning of indirect
inflow commerce to one intermediate dealer between the
original out-of-state source and the ultimate purchaser.
Counsel for the Respondent further contends that the
two trash collection trucks should not be considered a part
of indirect inflow because they constitute a nonrecurring
capital expenditure. On direct and cross examination by
counsel for the General Counsel with respect to the
quantity and frequency of Respondent's purchases or
replacements of trucks, the following information was
adduced:
In 1967 Respondent purchased two open trucks.
In January 1968 Respondent purchased a sideload
packer.
In 1969 Respondent purchased a rearload packer.
In 1970 Respondent purchased a packer for increase
in business.
In 1971 Respondent purchased a Chevy pickup truck
to service its other trucks.
In 1972 Respondent purchased two packer trucks to
keep pace with its business expansion.
In 1973 Respondent purchased 1 packer and 30
containers (hook-on dumpers).
In 1974 Respondent purchased a backup, pickup
truck and 23 containers to remove a greater volume of
refuse.
It traded in two old trucks, a 1968 and a 1969, to get the
larger packer trucks as an economy move to accommodate
greater collection.
Respondent's president, Elmer F. Asmen, credibly
testified that all of the above truck purchases were made to
accommodate his expanding business or to carry out its
operation more economically, and that only two of his old
trucks (1968 and 1969) were traded in to acquire the larger
capacity packers. Otherwise, he stated, none of the
purchases was a replacement for trucks on hand. He
further testified that he would not be making any new
purchases in the immediate future (1976) because business
has declined and he now has one truck that is idle about 3
days a week. His testimony was not disputed or refuted.
Therefore I find, as counsel for the Respondent argues,
that since the above-described purchases were not replace-
ments of original equipment within each given year, they
were in fact new purchases to accommodate the Respon-
dent's expanding trash-collecting business. Under these
circumstances the purchases were nonrecurring capital
expenditures which the Board has traditionally excluded
from the computation of direct and indirect inflow.
Although the evidence does not itemize the price of each of
Respondent's purchases during the years 1967 - 75, it is
reasonable to conclude that the purchase of a packer by the
Respondent in prior years did not cost more than the price
of one of the packers (approximately $41,263.41) which it
purchased in 1975. In all probability the price of such
packers was several thousand dollars less than one of the
packers Respondent purchased in 1975. Such prices
probably continued to increase on a graduated basis
commensurate with inflation over the years up to 1975.
Considering these factors, it is reasonable to conclude
that the only year in which the Respondent's truck
purchases, combined with his other direct inflow purchas-
es, possibly exceeded $50,000 was the year 1972, when it
purchased two packers. But even this conclusion is
speculative, irrespective of how reasonable. Nevertheless,
assuming arguendo that Respondent's truck and container
purchasers in 1972 exceeded $50,000, that being the only
year between 1967 and 1975 that the purchase of two
trucks occurred, I cannot thereupon conclude by reason of
the fact that Respondent made similar purchases in 1975
that such expenditures are representative of its annual
purchases, so as to eliminate such purchases from the real
classification of nonrecurring capital expenditures. This
conclusion is particularly true when it is observed that the
evidence fails to show that any of Respondent's purchases
over the years were actually made for the replacement of
trash collection equipment.
Even the 1968 and 1969 trucks which Respondent traded
in were established to have been smaller trucks not having
the volume or capacity to accommodate the amount of
refuse the two large compactors were purchased to
accommodate. Thus, the evidence appears to support the
Respondent's explanation that the purchases were made to
keep pace with its expanding business and were not an
annual recurring expense. This fact is further confirmed by
the evidence which shows that many of the Respondent's
trucks purchased in prior years have not been replaced. I
therefore conclude and find that the Respondent's pur-
chase of the 2 packers and probably the 13 containers in
1975 were nonrecurring capital expenditures, since such
expenditures were not made annually. International Union
of Operating Engineers, Local 428, AFL-CIO, et al.,
(William A. Ralston), 169 NLRB 184 (1968). Certainly it
has not been shown that such purchases will be made in the
near future (1976).
Moreover, it is clearly established by the credited
evidence that Respondent's business does not require the
purchase or replacement of two compactor trucks each
year; that further expansion of business at this time is not
foreseeable; that business is on the decline with one
collection truck standing idle 3 days a week; and that the
record of Respondent's past truck (capital equipment)
purchases for a value of more than $50,000 in a given year
was not a consistent pattern of purchases. I therefore find
the evidence insufficient to conclude and find that
Respondent's capital expenditures in 1975 or in other years
(retrospectively, or apparently prospectively) constituted a
636
EAST SIDE SANITATION SERVICE, INC.
representative period of Respondent's annual purchases.
Since Respondent's annual inflow purchases do not total
$50,000 or more, I further find that it will not effectuate the
policies of the Act to assert jurisdiction at this time.
Accordingly, I find that Respondent is not engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and I shall recommend that the complaint herein be
dismissed in its entirety.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the record relating to
jurisdictional facts in this case, I make the following
recommended:
ORDER
The complaint in this matter is dismissed in its entirety.
637