Merrill Construction Co., Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1950

92 N.L.R.B. 93 (N.L.R.B. 1950)

In the Matter of MERRILL CONSTRUCTION Co., INC., and IGNATIUS
KRZYWINSKI, AN INDIVIDUAL
In the Matter Of INTERNATIONAL HOD CARRIERS' BUILDING &. COMMON
LABORERS' UNION OF AMERICA, LOCAL 210, AFL and JGNATIUS
11RZYWINSKI, AN INDIVIDUAL
Cases Nos. 3-CA-191 and 3-CB-53. Decided November 15, 1950
DECISION AND ORDER DISMISSING COMPLAINT
On July, 12, 1950, Trial Examiner Albert P. Wheatley issued an
order granting the Respondents' motions to dismiss the complaints
in the above-entitled proceedings on the ground that the assertion of
jurisdiction would not effectuate the policies of the National Labor
Relations Act. Thereafter, the General 'Counsel filed a request for
review of the Trial Examiner's order.
To the extent here material, the Board 1 has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby affirmed. The
Board has considered the order issued by the Trial Examiner, a copy
of which is attached hereto, the General Counsel's request for review,
and the applicable portion of the record in the case.. We agree with
the Trial Examiner that although the operations of the Respondent'
Company are not wholly unrelated to interstate commerce, the asser-
tion of jurisdiction would not effectuate the policies of the Act 2
Accordingly, we shall affirm the Trial Examiner's order dismissing
the complaints herein.
ORDER
IT IS HEREBY ORDERED that the complaints issued. herein against the
Respondents, Merrill Construction Co., Inc., and International Hod
' Pursuant , to the provisions of Section 3 (b) of the Act , the Board das delegated its
powers in connection with these cases to a three -member panel [ Members Houston, Murdock,
and Styles].
2 The extent of the Respondent Company ' s operations are fully set forth in the Trial
Examiner ' s Order Dismissing Complaint . These operations , considered individually or
in combination , do not meet the minimum requirements for assertion of jurisdiction as
established by the Board's recently announced standards . Cf. The Rutledge Paper Products,
Inc., 91 NLRB 625 ; Dora's House of Miracles, Inc., 91 NLRB 632 ; Federal Dairy Co.,
Inc., 91 NLRB 638.
92 Nj^RB No. 26.
93
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carriers' Building & Common Laborers' Union of America, Local
210, AFL, be, and they hereby are, dismissed.
ORDER DISMISSING, COMPLAINT
Upon charges duly filed by Ignatius Krzywinski, an individual, the General
Counsel of the National Labor Relations Board by the Regional Director for the
Third Region (Buffalo, New York) duly issued complaints dated May 5, 1950,
against Merrill Construction Co., Inc., hereinafter called the Respondent Com-
pany, and against International Hod Carriers' Building and Common Laborers'
Union of America, Local 210, AFL, herein called Respondent Union (Respondents
are collectively referred to as Respondents) alleging that Respondents had en-
gaged in and were engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2),
respectively, and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. By order dated May 5, 1950,
said Regional Director duly consolidated these cases.
Thereafter Respondents filed separate answers denying the commission of
any unfair labor practice.
Pursuant to notice a hearing was held on May 22 and 23, 1950, at Buffalo,
New York, before the undersigned Trial Examiner. The General Counsel,
Respondent Company, and Respondent Union were represented by counsel and
participated in the hearing.' All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues. At' the conclusion of the General Counsel's case-in-chief; counsel
for each of the Respondents moved to dismiss the complaint and did not offer
any evidence on Respondent's behalf. After oral argument on the record by
counsel for the respective parties, the undersigned took the motions under con-
sideration. After the close of the hearing a brief was received from the General
Counsel. The undersigned has considered the applicable portions of the record
in the case and the brief filed by the General Counsel and now disposes the
motion to dismiss in accordance with the following findings and conclusions.
Respondent Company, a New York corporation having its office and place
of business in Buffalo, New York, engages, as a general contractor, in the con-
struction of buildings and "projects and in connection therewith acts as, a broker
in real estate and insurance.
In the course and conduct of its construction enterprise Respondent Company
purchases and uses various building supplies including lumber, steel, hardware,
and bathroom and kitchen equipment. Its expenditures for such materials
and supplies during the period October 1948 to October 1949 approximated
$140,000.
Respondent Company purchases substantial quantities of lumber and other
.building supplies from Sloan Lumber Company, Inc., herein called Sloan, a New
York corporation doing business in Sloan, New York 2 Respondent Company's
purchases from Sloan during 1949 approximated $92,000 and about $30,000
represents lumber purchased by and shipped to Sloan from outside New York
and resold by Sloan from its regular stock-in-trade to Respondent Company. The
balance of the supplies and equipment, including manufactured and mill work
items, sold by Sloan to Respondent Company were secured by Sloan from
' The General Counsel 's representative is herein called the General Counsel.
2 Suburb of Buffalo.
MERRILL CONSTRUCTION CO., INC. 95
within New York. The origin of these supplies and equipment is not revealed
except that some of them were milled within the State of New York.
During 1949 Sloan's total purchases approximated $238,000 and from $ 50,000
to 460,00.0 represents materials and supplies received by Sloan from outside
New York. During this same period Sloan's sales approximated $305,000,
practically all of which were made within the State of New York.
With respect to the relationship between Respondent Company and Sloan
there is no evidence indicating joint management , accounts, personnel, or
records, including payroll lists, no evidence of commingling of personnel between
the two companies, and no evidence that either company exerts any control over
the labor policies of the other. There is no evidence that Respondent Company
owns stock in Sloan or that the latter company owns stock in Respondent Com-
pany. Also, none of the officers of the Respondent Company are officers of Sloan
and, except for William H. Merrill, Sr., the directors of each corporation are
separate individuals. Nevertheless, William H. Merrill, Sr., president, chairman
of the board of directors, and majority stockholder of Respondent Company
is also chairman of the board of directors and majority stockholder of Sloan.
James Howard Merrill, son of William H. Merrill, Sr., is secretary and treasurer
of Sloan and a minority stockholder of Respondent Company and of Sloan.
Raymond Leary, president of Sloan and Nelson Borchert, vice president of Sloan,
are also minority stockholders of Respondent Company. William H. Merrill,
Sr., testified that he has his "own auditor" audit the books of Sloan and that
there are instances where he calls the officials of Sloan "in during conferenrn-1
or meetings" held by Respondent Company.
There is no evidence that Respondent Company is a member of General Con-
tracting Employers A.5sociation, (see Carpenter & Slcaer Inc. and General
Contracting Employers Association, 90 NLRB 417).
During the year 1949 Respondent Company constructed a residential apart-
ment project, known as Richmond Courts, in Buffalo, New York. The total
cost of this project approximated $243,000 including approximately $148,000 to
subcontractors. Approximately $55,000 represents Respondent Company's ex-
penditure for supplies and material for this project and subcontractors expended,
for supplies and materials, approximately $52,000. There is no showing that
any of the supplies and materials used on this project came directly to the
project from outside New York. However, it was stipulated that from 10 to
15 percent of all supplies and equipment used on this project originated outside
New York, but were purchased by Respondent Company and the subcontractor
from jobbers or suppliers located within New York. The record establishes
that some, if not all, of said supplies and materials were received by the jobber'
or suppliers from points and places outside New York.
Between October 1948 and October 1949, Respondent Company constructed
a residential apartment project, known as Harlem Court Extension, in Buffalo,
New York. The total cost of this project approximated $190,000 including
$120,000 to subcontractor and $40,000 worth of supplies and equipment pur-
chased by Respondent Company. Subcontractor's purchases of supplies and
equipment for this project approximated $42,000. There is no showing that
any of the supplies and equipment used on this project came directly to the
project from outside New York. It was stipulated that 10 to 15 percent thereof
had their origin outside New York but were received by the Respondent Com-
pany and the subcontractors in New York from local jobbers and suppliers.
It was stipulated :
96 DECISIONS OF, NATIONAL :LABOR RELATIONS BOARD
That during the year 1949 , the Merrill Construction Company in the course
of engaging in the insurance business as brokers , placed various insur-
ance'• totalling a face value of $1,800,000 with various agents representing
approximately 30 insurers ; that; of this amount approximately 30 per cent
of.the $1,800 ,000 was placed with insurers who do business in states other
than the . State - of New .York; and that . Merrill Construction Company
received as commissions during this period approximately $1,500, and that
the premiums were about $18,000 for the policies so placed.
The facts in the instant matter reveal that a large amount of materials,
supplies, and equipment used by Respondent Company and on the projects
involved herein originated outside New York but there is no evidence that-any,
of such materials , supplies , and equipment were shipped directly to Respondent
Company or to the projects from outside the State . It is the policy of the
Board to decline to exercise jurisdiction in this industry on the ground that
such operations are essentially local in , character , except where the facts point
to a direct and substantial effect on commerce ( see Denver Building and Con-
struction Trades Council , 90 NLRB 378 ; and Carpenter & Skaer Inc ., et al., 90
NLRB 417 ; Local 596, IBEW (West Virginia Electric Corp. ), 90 NLRB 417;
and Glaziers ' Union No. 27 (Joliet Contractors Association ), 90 NLRB 542.
The General Counsel contends that in view of Respondent Company 's opera-
tions as an insurance broker and in view of the relationship between Respond-
cut Company and Sloan, the instant matter is distinguishable from cases pre.vi-
ously decided by the Board . The General Counsel contends that Respondent
Company and Sloan are so integrated that the question of commerce and of
the assertion of jurisdiction must be viewed in the light of operations of both
companies . There is more than the usual relationship of buyer and seller
between Respondent Company and Sloan. Nevertheless , the facts indicate sep-
arate enterprises rather than an integrated one 4 and it is believed that the rela-
tionship between Respondent Company and Sloan is not sufficiently close to
warrant a deviation from the policy of the Board so as to assert jurisdiction
with respect to Respondent Company.
Concerning the insurance phase of Respondent Company's operations it is
noted that Respondent Company is not an insuring enterprise but merely acts
as an insurance broker in connection with its construction and real estate
business . The undersigned does not consider this of sufficient moment to dis-
tinguish the instant matter from cases- in this industry previously decided by
the Board and believes 'that Respondent Company ' s insurance operations are
readily distinguishable from operations involved in cases where the Board has
exercised jurisdiction over insurance companies.
Accordingly, the undersigned concludes that while the operations of Respond-
ent Company are substantially and not wholly unrelated to interstate com-
merce, they are, nevertheless essentially local in character and that it would
not effectuate the policies of the Act to assert jurisdiction in these cases.
Respondents ' motions urging dismissal on jurisdictional or commerce grounds
are therefore granted and it is hereby ordered that complaints herein, and each
of them, be , and they hereby are, dismissed in their entirety.
3 Fire insurance.
4 See John F. Kaenel and George Von Kaenal, d/b/a Acme Corrugated Box Co., and John
F. Kaenel Cooperage , Co., 88 NLRB 96; and W. E. Whitfield, Jr., et al ., d/b/a Whitfield Bus
Lines, 88 NLRB 261 ; cf. Don Juan Co., Inc. and Don Juan, Inc ., 79 NLRB 154 ( enforced,
except as to an award of back pay , 178 F. 2d 625 CA 2).
MERRILL CONSTRUCTION CO., INC. 97
Any party may obtain a review of the foregoing order, pursuant to Section
203.28 of the Rules and Regulations of the Board, by filing a request therefor
with the Board , stating the grounds for review, and immediately upon such
filing serving a copy thereof on the Regional Director and the other parties.
Unless such request for review is filed within ten (10 ) days from the date of
this order of dismissal , the cases shall be closed.
929979-51-vol. 92-8