Hoisting and Portable Engineers Local 101, Etc.

National Labor Relations Board - Board Decisions

Jul 31, 1962

137 N.L.R.B. 1788 (N.L.R.B. 1962)

1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
berg, and serve upon the parties a revised tally of ballots, and issue
certification.
[The Board set aside the election conducted on September 22, 1961,
among the employees of Dal-Tex Optical Company, Inc., at its Dallas,
Texas, plant.
[Text of Direction of Third Election omitted from publication.]
MEMBER LEEDOM, concurring :
I agree with the majority that the election should be set aside and
a third election directed. I deem it sufficient that the Employer in
effect told his employees that he would not bargain in good faith,
regardless of the outcome of any court proceedings designed to test
the validity of the Board's certification, should the Union win the
election.14 I therefore find it unnecessary to consider other aspects
of the Employer's conduct.
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision, Direction, Order, and Direction of Third
Election.
14 Such statements are markedly different from the mere statement that an employer
would refuse to bargain in order to test the validity of a Board certification in the courts,
or a statement that it would engage in "hard" bargaining.
Hoisting and Portable Engineers Local 101 , affiliated with the
International Union of Operating Engineers , AFL-CIO and
Don Anderson , Rex Forbes, Steve Straten and Marvin Creech,
employees of Warren Weibel , an individual d/b/a Weibel
Excavating Company. Case No. A0-38. July 31, 1963
ADVISORY OPINION
This is a petition filed by Hoisting and Portable Engineers, Local
101, affiliated with the International Union of Operating Engineers,
AFL-CIO, herein called Local 101, or Union, for an Advisory Opinion
in conformity with Sections 102.98 and 102.99 of the Board's Rules
and Regulations, Series 8, as amended. Thereafter, on June 11, 1962,
Don Anderson, Rex Forbes, Steve Straten, and Marvin Creech, herein
called Plaintiffs, filed an answer to the petition for Advisory Opinion.
On June 27, 1962, Local 101 filed a supplement to its petition and on
July 16, the Plaintiffs filed an answer to the supplement.
A. In pertinent part, Local 101's petition and supplement allege as
follows :
137 NLRB No. 192.
HOISTING AND PORTABLE ENGINEERS LOCAL 101 , ETC. 1789
1. There is presently pending before Judge Beryl Johnson in the
First Division of the District Court of Shawnee County , Topeka,
Kansas, a petition for an injunction in Case No . 91692 filed by the
Plaintiffs against defendants , Local 101 and certain agents and rep-
resentatives of Local 101. The Plaintiffs are employees of Warren
Weibel, an individual doing business as Weibel Excavating Company,
herein called Weibel or the primary Employer , who is engaged in per-
forming excavation work in the homebuilding construction industry
in and around Topeka, Kansas.
2. Weibel had a contract with plumbing subcontractor Robert Carl-
son Plumbing Company, herein called Carlson, to perform plumbing
excavation work on 12 houses being constructed by a general con-
tractor in a subdivision in Topeka , Kansas. Although none of Weibel's
employees were members of or represented by Local 101 , that Union
sought but did not secure an agreement under which Weibel agreed to
employ only its members . Thereafter , Local 101 "asserted an inten-
tion of placing a picket on the job before the picketing commenced."
Because of the labor dispute between Weibel and Local 101, Carlson
ceased doing business with Weibel who, with his employees, left the
jobsite. "Because of that fact , picketing was not commenced." The
employees of other subcontractors were working at the jobsite at the
time in question.
3. Local 101 contends that the injunction petition alleges conduct
which, if true , would constitute violations of Section 8(b) (1) and (2)
and 8 ( b) (4) (i) and ( ii) (B) of the National Labor Relations Act and
that, based upon the commerce data of certain contractors at the con-
struction site where the dispute occurred , this Board has and would
assert jurisdiction.
4. During the past year , Weibel performed wholly within the State
of Kansas services valued at approximately $75,000 and made pur-
chases of gas, oil, and tires valued at $5,000 of which approximately
$1,900 originated or came directly from outside the State of Kansas.
5. Carlson had a subcontract to perform $12,531 worth of plumbing
work on 12 houses being constructed by the general contractor of which
$5,696.68 represented materials and plumbing supplies almost all of
which came directly from or originated outside the State of Kansas.
6. For use in the construction of the 12 houses in the subdivision,
the general contractor made purchases valued at $86 ,018.39 of which
little more than $51,000 represented purchases of building materials
to be delivered to the jobsite by the local lumber company which itself
had received the materials directly from outside the State of Kansas.
In addition, an electrical subcontractor on the jobsite had purchased
and used in construction materials valued at approximately $25,000,
all of which originated from points outside the State of Kansas.
1790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. There is no representation or unfair labor practice proceeding
involving the labor dispute herein pending before the Board.
B. In pertinent part, the Plaintiffs' answers allege as follows :
1. The commerce operations of Weibel, the Plaintiffs' Employer,
and of Carlson at the construction site are insufficient to meet this
Board's jurisdictional standards.
2. Although Carlson ceased doing business with Weibel, "no other
secondary persons, including the general contractor and the electrical
subcontractor . . . were in any way affected by the labor dispute."
On the basis of the above, the Board is of the opinion that:
1. Weibel, the primary employer, is engaged in the business of
performing excavation work in the homebuilding construction indus-
try in and around Topeka, Kansas.
2. Carlson is a plumbing subcontractor, performing plumbing work
at the general contractor's construction site in Topeka, Kansas.
3. The current Board standard for the assertion of jurisdiction
over nonretail enterprises within its statutory jurisdiction requires
an annual minimum of $50,000 out-of-State inflow or outflow, direct
or indirect. Siemons Mailing Serviee, 122 NLRB 81, 85. During the
past year, Weibel, the primary employer, performed locally services
valued at $75,000, and made purchases valued at $5,000 of which only
$1,900 originated or came directly from outside the State. Carlson,
the secondary employer, performed $12,531 worth of plumbing work
at the construction site of which $5,696.68 represented materials and
plumbing supplies which originated or came directly from outside of
Kansas. As Weibel and Carlson do not have sufficient inflow or out-
flow, their operations, singly or together, do not meet the Siemons
standards for nonretail enterprises.
4. In cases involving secondary activity by a union which may be
violative of Section 8(b) (4) of the Act where, as here, the primary
employer's operations do not meet the Board's jurisdictional stand-
ards, the Board will take into consideration for jurisdictional purposes
not only the operations of the primary employer, but also the entire
operations of the secondary employers at the locations affected by
alleged conduct involved.' As Local 101's threat to picket the project
resulted in Carlson's ceasing to do business with Weibel, Carlson's
operations at the jobsite were thereby affected and must be considered
with those of Weibel, the primary employer. However, as indicated
above, neither the operations of Weibel in their entirety, nor those of
Carlson at the project, either singly or together, meet the Board's
standard for assertion of jurisdiction over them considered apart from
the entire project. With respect to the operations of the other second-
1 Madisda Building & Construction Trades Council, et at. (Wallace Hildebrand , et at.,
d/b/a H & K Lathing Company ), 134 NLRB 517; Jemeon Broadcasting Company, 135
NLRB 362, and cases cited in footnote 2.
HOISTING AND PORTABLE ENGINEERS LOCAL 101, ETC. 1791
ary employers at the jobsite, such as the general contractor and the
electrical subcontractor, the Board would not consider them unless
they too were affected by Local 101's conduct at the project. The
Plaintiffs assert "that no other secondary persons . . . were in any
way affected by the dispute." On the other hand, Local 101 adverts
to the fact that it had threatened to picket the jobsite and that the
threat had resulted in the cessation of business between Weibel and
Carlson and in the departure of Weibel's employees from the jobsite,
at a time when employees of other subcontractors were working at
the jobsite. Under these circumstances, the Board is unable to deter-
mine whether or not Local 101's conduct at the jobsite affected other
secondary employers so as to require consideration of their project
operations in resolving the jurisdictional issue herein.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, on the
facts submitted, the Board is unable to conclude whether or not it
would assert jurisdiction herein.
MEMBER BROWN took no part in the consideration of the above
Advisory Opinion.
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