Local 719, Int'l Brotherhood Electrical Workers

National Labor Relations Board - Board Decisions

May 27, 1964

147 N.L.R.B. 166 (N.L.R.B. 1964)

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All bakery production employees located at the main store of the
Employer in Atlanta, Georgia, excluding supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
Local 719, International Brotherhood of Electrical Workers,
AFL-CIO and Robert J. Pokigo, d/b/a Amoskeag Construc-
tion Company and Arthur T. Costigan d/b/a Arthur T.
Costigan Electrical Contractor . Case No. A0-74. May 27,1964
ADVISORY OPINION
This is a petition filed on March 27, 1964, by Local 719, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, herein called
the Petitioner, for an Advisory Opinion in conformity with Section
102.98 and 102.99 of the National Labor Relations Board's Rules and
Regulations, Series 8, as amended. An amendment to this petition
was filed subsequently by the Petitioner.
Thereafter, Bernard L. Alpert, Regional Director for the First Re-
gion of the National Labor Relations Board, herein called the Re-
gional Director, filed a motion to intervene, setting forth jurisdictional
facts developed in the course of his investigation of unfair labor prac-
tice charges filed against the Petitioner in Case No. 1-CC-408 by
Arthur T. Costigan d/b/a Arthur T. Costigan Electrical Contrac-
tor herein called Costigan or primary employer. By letters dated
March 30 and April 2, 1964, Robert J. Pokigo d/b/a Amoskeag or
secondary employer, filed replies to the petition for Advisory Opinion.
Subsequently, on April 16, 1964, Amoskeag also submitted an affi-
davit setting forth corrective information. On April 29, 1964, the
Regional Director filed an amendment to motion to intervene setting
forth additional jurisdictional facts developed from a further investi-
gation. The motions of the Regional Director to intervene and to
amend his intervention are hereby granted.
On May 8, Amoskeag filed an answering affidavit to the Regional
Director's amendment to motion to intervene as well as an answering
letter to the Petitioner's amendment to the petition herein.
In pertinent part, the petition, the intervention and their amend-
ments, the letters, and affidavits, allege as follows :
1. On or about March 17, 1964, the Petitioner started picketing the
construction site of Mount St. Marys Seminary High School in
Nashua, New Hampshire, with placards bearing the legend : "Costi-
gan Electric does not conform to fringe benefits and other conditions
147 NLRB No. 26.
LOCAL 719, INT'L BROTHERHOOD ELECTRICAL WORKERS 167
of Local #719." Costigan, the primary employer, is the electrical
subcontractor on the construction project where Amoskeag, the sec-
ondary employer, is the general contractor. Neither Amoskeag nor
his other subcontractors have a labor dispute with the Petitioner.
2. On March 17, 1964, Costigan filed an unfair labor practice charge
against the Petitioner in-Case No. 1-CC-408 which is presently under
investigation by the Regional Director.
3. On March 20, 1964, Amoskeag filed a petition for injunction,
docketed as Equity No. 5638 in the Superior Court of the State of
New Hampshire, Hillsboro SS, seeking to enjoin the Petitioner from
picketing the school construction site with an object of forcing Amos-
keag and his subcontractors to cease doing business with Costigan.
On March 20, 1964, the court granted a temporary order enjoining the
picketing.
4. Amoskeag, the secondary employer, is a sole proprietorship en-
gaged in the general construction business and in the erection of all
types of buildings, with principal office at R.F.D. 2, Goffstown, New
Hampshire. Since October 1, 1963, Amoskeag has been engaged as
the general contractor for the Mount St. Marys school project. His
construction contract is in the gross sum of $662,000. Amoskeag ob-
tains raw materials, including reinforcing steel, lumber, concrete,
sand, and cement, directly from outside the State of New Hampshire.
During the calendar year 1963, Amoskeag purchased in connection
with all jobs, including the school construction project, $27,757 worth
of materials which came directly and indirectly from out of New
Hampshire. For the period January 1 to February 29, 1964, Amos-
keag has made, in addition, $17,337 direct and indirect out-of-State
purchases of materials for use in connection with all jobs, including
the school project.
5. Costigan, the primary employer, is engaged in the business of
performing electrical work at Nashua, New Hampshire. He has no
electrical business or work outside the State of New Hampshire and
he is Amoskeag's electrical subcontractor at the school construction
project. During the past 12'months, Costigan contracted to perform
$164,000 worth, of electrical work at three construction sites in New
Hampshire; but the actual amount of his direct out-of-State pur-
chases of raw. materials for these three projects is not known although
it is not $50,000 or more. However, during 1963, Costigan purchased
in New Hampshire $42,604.73. worth of materials which originated
outside the State.
6. The Petitioner. contends.the. Board should assert, jurisdiction,
while Amoskeag argues that the. Board should decline jurisdiction be-
cause "this matter is completely a local matter , having no effect on
interstate commerce."
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the above, the Board is of the opinion that: -
1. Costigan, the primary employer, is engaged in the electrical con-
tracting business at Nashua, New Hampshire. During the past 12
months, he contracted to.perform $164,000 worth of electrical work at
three construction sites in New Hampshire and he did not have $50,000
out-of-State purchases of materials. However, during 1963, he had
$42,604.73 indirect purchases of out-of-State materials.
2. The current Board standard for the assertion of jurisdiction over
nonretail enterprises within its statutory jurisdiction requires an an-
nual minimum of $50,000 out-of-State inflow or outflow, direct or in-
direct, Siemons Mailing Service, Inc., 122 NLRB 81, 85; while the
current retail standard requires an annual gross volume of business of
at least $500,000. Carolina Supplies and Cement Company, 122 NLRB
88, 89. On the allegations submitted herein, Costigan's $42,604.73 in-
direct purchases of out-of-State raw materials which constitute in-
direct inflow under the Siemons decision and his $164,000 volume
of business themselves do not meet the Board's standards for the
assertion of jurisdiction over Costigan either as a nonretail or retail
enterprise.
3. Secondary employer, Amoskeag, is a nonretail enterprise en-
gaged in the general construction business at Goffstown, New Hamp-
shire. During the calendar year 1963, it made $27,757 direct and in-
direct out-of-State purchases of raw materials in connection with all
jobs, including the Mount St. Marys school construction project.
These out-of-State purchases constitute direct and indirect inflow un-
der the Siemens decision, but this is not by itself sufficient to warrant
the Board asserting jurisdiction over Amoskeag under the nonretail
standard.
4. In cases involving the secondary activity by a union which may
be a violation of Section 8 (b) (4) of the Act where, as here, the opera-
tions of Costigan, the primary employer, do not meet the Board's
jurisdictional standards, the Board will take into consideration not
only the operations of the primary employer but also the entire opera-
tions of the secondary employers at the location affected by the alleged
conduct involved.' As indicated above, during calendar 1963, Costi-
gan, the primary employer, made $42,604.73 indirect out-of-State pur-
chases. Further, the Petitioner's picketing of the Mount St. Marys
Seminary High School construction project was activity that affected
that part of the $27,757 direct and indirect out-of-State purchases
that Amoskeag, the secondary employer, made in connection with that
'See D . L.W. Transportation Company, 145 NLRB 212; Tri-Cities Broadcasting Com-
pany, 138 NLRB 236; Terrizzi Beverage Company, 137 NLRB 495; H cE K Lathing Com-
pany, 134 NLRB 517.
STANLEY MANUFACTURING COMPANY 169
project during this same period 2 Such out-of-State purchases of
Amoskeag and Costigan combined constitute sufficient direct and in-
direct inflow to meet the Siemons nonretail standard and, in accord
with established Board precedent, to warrant the assertion of juris-
diction over Costigan, the primary employer, and the secondary em-
ployers, including Amoskeag, affected by the Petitioner's activity,
whether or not such activity is in fact violative of Section 8 (b) (4)
of the Act.3
Accordingly, the parties are therefore advised, under Section 102.103
of the Board's Rules and Regulations, Series 8, as amended, that, on
the allegations submitted and the assumptions made herein, the com-
merce operations of the primary employer, Costigan, and those of the
secondary employers, including Amoskeag, at the Mount St. Marys
Seminary High School project in Nashua, New Hampshire, the loca-
tion affected by the Petitioner's secondary conduct, are such that the
Board would assert jurisdiction with respect to labor disputes cog-
nizable under Section 8 or 10 of the Act.
2 Further , we note that the Petitioner 's picketing also affected that part of the $17,337
direct and indirect out-of- State purchases of materials made by Amoskeag for use in con-
nection with the school project during the period between January 1 to February 29, 1964.
For purposes of this decision we have assumed that $7,395.27 or more of Amoskeag's
direct and indirect out-of-State purchases of materials were made in connection with the
school project and were affected by the Petitioner 's picketing of that project.
3 See cases cited in footnote 1, supra.
Stanley Manufacturing Company and Upholsterers' Interna-
tional Union of North America, AFL-CIO. Cases Nos. 16-CA-
1867, 16-CA-1933, and 16-RC-3408. May 28, 1964
DECISION AND ORDER
On March 27, 1964, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Decision. Thereafter,
the General Counsel filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
147 NLRB No. 22.