Harry Tancredi

National Labor Relations Board - Board Decisions

Jun 22, 1962

137 N.L.R.B. 743 (N.L.R.B. 1962)

HARRY TANCREDI 743..
The foregoing is the sum total of the evidence received in this pro-
ceeding which has a bearing upon the merits of the dispute, or the
question of an affirmative assignment by this Board. As the skills
required to perform the disputed work were not affirmatively shown to:
be such as to fall exclusively within the jurisdictional claims of the
Respondent Local 862, as the evidence relating to custom and practice
locally or industrywide points with equal persuasion to a work as-
signment in favor of either of the competing groups, and upon con-
sideration of the record as a whole, we shall resolve the work dispute
by assigning the work to the ticket, sellers presently employed by the
Company. We also find, therefore, that Local 862 was not and is not
entitled to coerce Allied or to picket the Pittsburgh arena for the pur-
pose of compelling the Company to change work assignments in favor-
of members of Local 862.
DETERMINATION OF DISPUTE
On the basis of the foregoing, and upon the entire record in the,
case , the Board makes the following Determination of Dispute pur-
suant to Section 10 (k) of the Act:
Employees engaged as ticket sellers presently employed by the Em-
ployer are entitled to the assignment of selling tickets at the Pitts-
burgh arena. Accordingly, Local 862, I.A.T.S.E., is not and has not.
been lawfully entitled to force and require Allied to assign such work.
to its members.
Within 10 days of the date of this Decision and Determination of
Dispute, International Alliance of Theatrical Stage Employees and.
Moving Picture Machine Operators of the United States and Canada,.
Treasurers and Ticket Sellers Local No. 862, AFL-CIO, shall notify,
the Regional Director for the Sixth Region, in writing, whether or not
it will refrain from forcing or requiring Allied Maintenance Company-
of Pennsylvania, Inc., by means proscribed by Section 8(b) (4) (D),.
to assign the work in dispute to its members rather than to employees-
presently engaged as ticket sellers.
MEMBER RODGERS, concurring :
I concur in the result.
Harry Tancredi and Lionel Richman. Case No. 21-CA-4484..
June 22, 1962
DECISION AND ORDER REMANDING THE CASE
TO THE TRIAL EXAMINER
On April 30, 1962, Trial Examiner Herman Marx issued his Inter--
mediate Report in the above-entitled proceeding, recommending that.
137 NLRB No. 92.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint be dismissed for the reason that the operations of the
Employer involved herein, Harry Tancredi (doing business under the
name and style of Harry Tancredi Co. and herein called Tancredi or
the Respondent), do not meet the Board' s standards for the assertion
.of jurisdiction.' Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a brief in support thereof.
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 [Chairman McCulloch and Members Fanning and
Brown].
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and finds merit in the General Counsel's exceptions.
The General Counsel and the Respondent entered into a written
stipulation of the following facts relevant to the issue of commerce.
Tancredi is a general contractor engaged in the business of construct-
ing (with the aid of subcontractors) residential houses, apartments,
and office buildings in California and selling such houses, apartments,
and office buildings to users. In the course and conduct of his business
operations, the Respondent, in the calendar year 1961, made sales in
excess of $500,000 of such houses, apartments, and office buildings.
The houses, apartments, and office buildings sold by Respondent dur-
ing the calendar year 1961 contained lumber, plumbing fixtures, re-
frigerators, stoves, furnaces , electrical fixtures, hardware, tile, and
other fixtures and materials having a total value in excess of $250,000,
.of which in excess of $50,000 originated outside the State of
California.
The Respondent introduced at the hearing certain exhibits which
list various construction projects on which the Respondent engaged
the services of the alleged discriminatee. In addition to certain
commercial and governmental buildings, the list contains items desig-
nated "Argos Homes" and "4 Duplexes."
On these facts the Trial Examiner found that the record does not
contain a sufficient basis for the application of either the Board's
retail or nonretail standards. In his discussion of the applicability
of the Board's retail standards, the Trial Examiner found, in effect,
that that portion of Respondent's commerce stipulation which re-
ferred to "selling such houses, apartments, and office buildings to
users" lacked sufficient specificity to characterize any of these sales as
retail. Moreover, in light of the fact that the stipulation charac-
terized Tancredi as a "general contractor," the Trial Examiner found
1 The Intermediate Report contains no findings with respect to the unfair labor practices
alleged to have been violative of Section 18(a) (1) and ( 3) of the Act
HARRY TANCREDI 745
difficulty in applying the term "retail enterprise" to Tancredi's
operations.
Although a portion of the buildings which he constructs and sells
are governmental or commercial, and thus falls into the classification
of "nonretail" operations,2 Tancredi, by his stipulation and by his
evidence, admits that a portion of his business involves the construc-
tion and sale of residential homes to users. This latter aspect of hip
operations comes within the characterization of a retail enterprise.
The totality of Tancredi's operations evidence to us that the business
is a single integrated enterprise, encompassing both retail and non-
retail operations. The Board has determined that it will assert juris-
diction over this type of enterprise if the employer's total operations
meet either the Board's retail or nonretail jurisdictional standards.'
As the Respondent's annual gross volume of business herein exceeds
$500,000 annually, it falls within the retail jurisdictional standard."
We therefore find that the Respondent is engaged in commerce or an
industry affecting commerce within the meaning of the Act,6 and that
it will effectuate the policies of the Act to assert jurisdiction in this
proceeding and to resolve the substantive issues raised by the
complaint.
Accordingly, this case shall be, and it hereby is, remanded to the
Trial Examiner for the preparation and issuance of a Supplemental
Intermediate Report.
2 J. S. Latta & Son, 114 NLRB 1248.
s United Slate , Tale and Composition Roofers, Damp and Waterproof Workers Associa-
tion, AFL-CIO, Local Union No. 57 ( Atlas Roofing Co, Inc ), 131 NLRB 1267.
s Indiana Bottled Gas Company, 128 NLRB 1441 ; Man Products , Inc., 128 NLRB 546.
5 Carolina Supplies and Cement Co., 122 NLRB 88.
.As the Respondent or his subcontractors purchased , during the calendar year 1961,
materials and fixtures , used at these sites, originating out of the State of California, and
valued in excess of $ 50,000, we find that the Board also has legal jurisdiction in this
matter. See United Slate, Tile and Composition Roofers , Damp and Waterproof Workers
Association, AFL-CIO, Local Union No 57 ( Atlas Roofing Co., Inc. ), 131 NLRB 1267,
1269, footnote 9.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding , issued by the General Counsel of the National
Labor Relations Board ( also termed the Board herein ), alleges that the Respondent,
an employer named Harry Tancredi, has violated Section 8(a)(3) of the National
Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.; also referred to herein
as the Act), by discriminatorily discharging an employee named Cipriano Marez
because of his membership in a labor organization ; and has by such discharge
abridged rights guaranteed employees by Section 7 of the Act, thereby violating
Section 8(a)(1) of the statute . The Respondent has filed an answer which, in
material substance , denies that he is engaged in commerce within the purview of the
Act, and that he committed the unfair labor practices imputed to him.'
Pursuant to notice duly served by the General Counsel upon all parties entitled
thereto, a hearing upon the issues in this proceeding has been held before Herman
Marx, the duly designated Trial Examiner, at Los Angeles, California . The General
Counsel and the Respondent appeared through, and were represented by, respective
1 The complaint is based on a charge filed with the Board on August 2, 1961 . Copies of
the complaint and charge have been duly served upon the Respondent.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel ; participated in the hearing; and were afforded a full opportunity to be heard,
.examine and cross-examine witnesses , adduce evidence , file briefs , and submit oral
argument. I have read and considered the respective briefs of the General Counsel
.and the Respondent filed with me since the close of the hearing.
At the threshold of decision in this proceeding, one meets the question whether the
commerce evidence is sufficient to warrant the assertion of jurisdiction by the Board.
As I am constrained by the state of the record to give a negative reply to that ques-
tion, it would be an idle task to determine whether Marez was discharged because of
union membership, as the General Counsel contends. Thus I pass only on the
-jurisdictional issue posed above. As regards that matter, upon the entire relevant
record in this proceeding, I make the findings of fact, conclusions of law, and recom-
mendations that follow below.
1. FINDINGS OF FACT
Harry Tancredi is engaged, as a general contractor, under the firm name and style
-of Harry Tancredi Co., in the business of constructing "residential houses, apart-
ments [not otherwise described, but meaning, perhaps, multitenanted apartment
buildings] and office buildings in California"; and maintains his principal office and
,place of business in Santa Ana, California. Apart from,a miscellany of tasks, includ-
mg the making of concrete and cleaning work, performed by labor in Tancredi's
-employ, all of the construction work at his projects is performed by subcontractors.
As a written stipulation in evidence (General Counsel's Exhibit No. 2) states,
Tancredi sells the "residential houses, apartments, and office buildings" he constructs
"to users," and in the course and conduct of his business in 1961, the volume of his
sales of such structures, in the aggregate, exceeded the sum of $500,000. The evi-
dence does not establish what proportion were office buildings, nor what percentage
-consisted of either of the other types of structures.
The sole evidence of interstate commerce in the record is embraced in the stipula-
tion mentioned above, and amounts, in sum, to the fact that in 1961, products in-
stalled in Tancredi's projects, exceeding $50,000 in value, "originated outside the State
of California."
On the basis of the quoted commerce fact and the Respondent's gross sales
volume, the General Counsel would apply to the Respondent jurisdictional criteria,
promulgated by the Board, under which it asserts jurisdiction over retail enterprises
-which fall within its statutory jurisdiction and which do a gross volume of business
of at least $500,000 per annum." 2 As support for his position, the General Counsel
invokes United Slate, Tile and Composition Roofers, Damp and Waterproof Workers
-Association, AFL-CIO, Local Union No. 57 (Atlas Roofing Co., Inc.), 131 NLRB
1267, where the Board applied the retail criteria to an employer engaged in the
business of building "residential houses," and selling them to persons who bought
them for their own residential use .3
I have some difficulty in identifying the image of a "general contractor" in the con-
struction industry, as the Respondent indisputably is, with that of a "retail enterprise,"
but putting that aside, there is a basic impediment to acceptance of the General
Counsel's thesis, and that is that sales of the "office buildings," at least, were not
"retail" transactions. A retail sale is one to a purchaser who buys the product for
his own use or some other noncommercial disposition (such as, for example, use
by his family or a friend). Sales of commodities for industrial, commercial, institu-
tional, professional, or governmental use are, as the Board has held, nonretail in
nature.4 The very term "office buildings" connotes use and occupancy for business
-purposes, and, as in the case of sales of services or products for commercial uses,
to treat the sale of such office structures as "retail" is to invest language with meaning
it lacks.5 Moreover, in the posture of the record, it would be speculative to say that
2 Carolina Supplies and Cement Co , 122 NLRB 88, 89.
8 The United Roofers decision does not explicitly say that the houses involved were
purchased for occupancy by the buyers, but the houses were tract dwellings, and it is
obvious that they were subdivision homes bought for the residental use of the purchaser.
-Moreover, the very fact that the Board applied the retail criteria implies a conclusion
that the homes were purchased by the buyers for such use.
4 Treasure State Equipment Company, 114 NLRB 529; J S. Latta & Son. 114 NLRB
1248, 1249.
8 The fact that the stipulation states that the "office buildings" were sold to "users"
does not advance the General Counsel's position One may reasonably believe that the
"users" purchased the "office buildings" for commercial or professional uses I note, also,
in passing, that, the word "users," as employed in the stipulation, to characterize pur-
.chasers of "office buildings" has manifest vagueness. Does the word refer to those who
HARRY TANCREDI 747
the sales of "apartments" to "users" were retail in character, for one cannot tell
whether they were multitenanted apartment buildings, nor, if they were such struc-
tures, whether the "users" used them for their own occupancy or for rental income (in
which event the purchases would be of the nature of business investments and thus
nonretail) or for both purposes.
The mere fact that the Respondent's gross sales volume in 1961 exceeded $500,000,
and that his transactions included sales of "residential houses," does not bring this
case within the reach of the Board's holding in United Roofers, for that case involved
only tract dwellings purchased for residential use by the buyers, whereas one cannot
determine from the evidence here what proportion of the Respondent's sales volume
was derived from the sale of dwellings for the use of the purchasers, and what per-
centage from the sale of properties for business use. For all that one can tell from
the record, the percentage of revenue derived from sales of dwellings for the resi-
dential use of the purchasers was relatively small, and particularly if that were the
case, it would be a distortion of language, it seems to me, to apply the term "retail
enterprise" to the Respondent, whom the stipulation itself terms a "general con-
tractor." One may bear in mind, too, in that connection, that there are clear indi-
cations in the record (Respondent's Exhibits Nos. 2(a), 2(b), 2(c)) that a
considerable portion of the Respondent's business consists of the construction of
buildings used for business or governmental (school) purposes, and one may reason-
ably infer that a substantial portion of the Respondent's gross revenue, to say the
least, is derived from construction work on governmental facilities such as schools,
and from the construction and sale of business properties such as office buildings.
The sum of the matter, as regards the General Counsel's position, is that the
United Roofers case is distinguishable and thus not controlling here; 6 that the por-
trait of the Respondent's business drawn by the record is not that of a "retail enter-
prise," at least as that term is commonly understood; and that in the absence of more
detailed information than the record provides as to the percentage of the Respond-
ent's gross revenue derived from the sales of "residential houses" and "apartments"
for occupancy by the purchasers, and as to the proportion derived from his nonretail
construction and sales activities, I hold that the General Counsel has not carried the
burden of proving the applicability of the Board's retail criteria to the Respondent's
enterprise.
Similarly, the record is insufficient to warrant the application of other criteria,
promulgated by the Board in Siemons Mailing Service, 122 NLRB 81, 85, under
which it asserts jurisdiction "over all nonretail enterprises which have an outflow
or inflow" of goods or services in interstate commerce valued at at least $50,000,
"whether such outflow or inflow be regarded as direct or indirect." There is no evi-
dence that the Respondent's enterprise has any interstate "outflow" of goods or
services, whether "direct or indirect," and none that it has any "direct [interstate]
inflow." The mere fact that products incorporated in the Respondent's 1961 build-
ing projects, of a value exceeding $50,000, "originated outside . . . California" is
not enough; for the Siemons case defines "indirect inflow" as "the purchase of goods
or services which originated 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" [emphasis supplied], and the record is barren of any evidence that the Respond-
ent has purchased anything for his business, whether or not used in his 1961 building
projects, from anyone "who received such goods or services from outside" California.
In other words, for all that appears, the products that "originated outside .
California," and were incorporated in the Respondent's structures, whether by him
or his subcontractors, were purchased from supply sources that, in turn, bought the
products within the State. Thus, the record will not support the assertion of juris-
diction on the basis of the Siemons criteria.7
use office buildings to house their own enterprises, or to those who use them to make a
profit from rentals to professional or commercial enterprises, or to those who purchased
the buildings for both purposes'' There is comparable vagueness, it seems to me, in the
application of the term "users" to purchasers of "apartments," particularly if the word
"apartments" is intended to mean multitenanted apartment buildings.
6It may be noted, too, that in United Roofers, the Board left open the question whether
it would follow the case in the future, stating, in that connection (at p 1269, footnote 7),
that "[w]hile the Board is applying existing [jurisdictional] standards to the home
building operation, it does so, in the absence of any specific standard for this type of
operation, leaving open the question of the finality of the application of existing stand-
ards in future cases in this area."
7 See, also, Better Electric Co., Inc , et at , 129 NLRB 1012, 1013
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary, as the record does not contain a sufficient basis for application of
either the retail or nonretail standards , I am constrained to recommend dismissal of
the complaint without regard to the reason for Marez' discharge.8
Upon the basis of the foregoing findings of fact, and upon the entire relevant
record in this proceeding , I make the following:
II. CONCLUSIONS OF LAW
1. The evidence does not establish that the Respondent's operations meet any of
the Board's existing criteria for the assertion of its jurisdiction.
2. The evidence relating to interstate commerce is insufficient to support a finding
that it will effectuate the policies of the Act for the Board to assert jurisdiction in
this proceeding.
III. RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law , I recom-
mend that the Board enter an order dismissing the complaint in this proceeding.
8 In view of my conclusion that the record, for the reasons stated, is insufficient to
meet either the Board 's retail or nonretail jurisdictional standards , I deem it unnecessary
to deal with the issue, in effect raised by the pleadings read in the light of the evidence,
whether the mere fact that products used in the Respondent ' s construction projects
"originated outside . . . California " is sufficient , without more , to bring the Respondent's
operations within the Board 's statutory jurisdiction.
International Ladies' Garment Workers' Union and Federation
of Union Representatives , Petitioner. Case No. 2-RC-11158.
June 22, 1962
SECOND SUPPLEMENTAL DECISION, DIRECTION,
NOTICE, AND ORDER
Pursuant to a Supplemental Decision, Direction, and Order issued
by the Board on October 3, 1961, in the above-entitled proceeding,'
a hearing was held before Murray S. Freeman, hearing officer, on
November 8, 9, 14, 15, 16, 17, 20, and 21, 1961, to resolve the issues
raised with respect to certain challenged ballots. The Employer and
the Petitioner appeared and participated at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues.
On December 22, 1961, the hearing officer issued and served upon
the parties his report in which he recommended that the challenges be
overruled and the ballots be opened and counted. The Petitioner filed
timely exceptions to the hearing officer's report.
The Board has reviewed the rulings of the hearing officer made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the hearing
officer's report and the exceptions thereto, and upon the entire
1 Not published in NLRB volumes . In accordance with the Supplemental Decision,
Direction , and Order, the Regional Director issued and served upon the parties a revised
tally of ballots which showed that of approximately 231 eligible voters, 231 ballots were
cast of which 115 were for, and 104 were against , the Petitioner , and 12 challenged ballots
remained unopened.
137 NLRB No. 86.