Harry Tancredi

National Labor Relations Board - Board Decisions

Dec 3, 1962

139 N.L.R.B. 1510 (N.L.R.B. 1962)

1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry Tancredi and Lionel Richman . Case No. 21-CA-4484.
December 3, 1962
SUPPLEMENTAL DECISION AND ORDER
On July 30, 1962, Trial Examiner Herman Marx issued his Supple-
mental Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Supplemental Intermediate Report. Thereafter, the Respondent filed
exceptions to the Supplemental 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 made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Supple-
mental Intermediate Report, the exceptions and brief, and the en-
tire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommendation of the Trial Examiner.'
MEMBER BROWN, dissenting :
I would dismiss the complaint herein, because I do not believe that
Respondent was motivated by discriminatory considerations in dis-
charging Marez.
I Interest at the rate of 6 percent per annum shall be added to the backpay to be com-
puted in the manner set foi th in Isis Plumbing d Heatvng Co , 138 NLRB 716.
The Appendix attached to the Supplemental Intermediate Report is hereby modified by
adding the following immediately below the signature in the notice:
NoTM.-I will notify the above -named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
The Appendix is further modified by deleting the words "60 days from the date hereof"
in the next to the last sentence of said notice and inserting in its place the words "60 con-
secutive days from the date of posting. . . .
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
139 NLRB No. 128.
HARRY TANCREDI 1511
as the Act), by discriminatorily discharging employee 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 Trial
Examiner Herman Marx at Los Angeles, California. The General Counsel and the
Respondent appeared through; and were represented by, respective counsel; par-
ticipated 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 question, 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 recommendations that follow below.
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, multi-tenanted 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, in-
cluding 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, pro-
mulgated 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, etc., 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
construction industry, as the Respondent indisputably is, with that of a "retail enter-
prise," but putting that aside, there is a basic impediment to acceptance of the Gen-
eral 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, insti-
tutional, professional or governmental use are, as the Board has held, nonretail in
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
2 Carolina Supplies and Cement Co., 122 NLRB 88, 89.
8 The 'United Roofers decision does not explicitly say that the houses involved were pur-
chased for occupancy by the buyers , but the houses were tract dwellings , and it is obvious
that they were subdivision homes bought for the residential use of the purchaser More-
over , the very fact that the Board applied the retail criteria implies a conclusion that
the homes were purchased by the buyers for such use.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature? 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 mean-
ing it lacks.5 Moreover, in the posture of the record, it would be speculative to say
that 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
structures, 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
percentage 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 residential 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 "gen-
eral contractor." One may bear in mind, too, in that connection, that there are
clear indications 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
portrait of the Respondent's business drawn by the record is not that of a "retail
enterprise," 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 Respondent'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, 89, 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
evidence 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 outisde . California"
is not enough; for the Siemons case defines "indirect inflow" as "the purchase of
4 Treasure State Equipment Company , 114 NLRB 529 ; J. S. Latta & Son , 114 NLRB
1248, 1249.
5 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
purchasers of "office buildings" has manifest vagueness . Does the word refer to those
who 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 pur-
chased 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)bile the Board is applying existing (jurisdictional ) standards to the home build-
ing 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 standards in future
cases in this area."
THE SANTA FE TRAIL TRANSPORTATION COMPANY 1513
goods or services which originated outside the employer's statebut 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
Respondent 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 jurisdiction on the basis of the Siemons criteria.?
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' discharges
Upon the basis of the foregoing findings of fact, and upon the entire relevant record
in this proceeding, I make the following:
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.
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.
' See also Better Electric Co ., Inc., and Michael Gordon, as President of Local 199;
Industrial Workers of Allied Trades , affiliated with Confederated Unions of America,
129 NLRB 1012, 1013.
8 In view of my conclusion that the record, for the reasons stated, is insufficient to meet
either the Board's retail or nonretall 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.
The Santa Fe Trail Transportation Company and Teamsters
Union Local 795, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica, Petitioner . Case No. 17-RC-3775. December 3, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harold L.
Hudson, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the.Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations I involved claim to represent certain em-
ployees of the Employer.
' The Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and
Station Employees was permitted to intervene on the basis of Its current contract.
139 NLRB No. 131.