Pollack Electric Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1974

214 N.L.R.B. 970 (N.L.R.B. 1974)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pollack Electric Co., Inc. and Local Union No. 3, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO, Petitioner . Case 29-RC-2533
November 14, 1974
RULING ON ADMINISTRATIVE ACTION
On January 16, 1974, the Regional Director for
Region 29 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he as-
serted jurisdiction on the basis of his finding that the
Employer, an electrical contractor located in Brook-
lyn, New York, purchased over $50,000 worth of
products which originated outside the State of New
York, and he found the Petitioner's requested unit of
all electricians, electrical maintenance mechanics,
and helpers of the Employer to be appropriate. The
Employer filed no request for review of the P.egional
Director's decision. The tally of ballots for the elec-
tion held therein on February 8 showed that all seven
of the ballots cast were challenged. After investiga-
tion of unfair labor practice charges filed by the Peti-
tioner, the Regional Director, on May 15, issued a
complaint in Case 29-CA-3788, alleging, inter aba,
that the Employer violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, in
laying off six of the challenged voters.' On May 21
the Regional Director issued a Supplemental Deci-
sion herein consolidating this case with Case 29-
CA-3788 for hearing.
Thereafter, on July 10, the Regional Director is-
sued an order severing cases and dismissing the com-
plaint in Case 29-CA-3788,2 and an order dismissing
petition, in which he ordered that the results of the
election be set aside and the petition herein be dis-
missed administratively, upon consideration of his
findings, inter alia, that the Employer came forward
with its books and records and that an examination
thereof indicated it did not meet the Board's jurisdic-
i The other challenged voter was alleged in the complaint to be a supervi-
sor acting as agent of the Employer in the commission of unfair labor prac-
tices
2 The Petitioner filed an appeal therefrom which is now pending before
the General Counsel
tional standards. Thereafter, the Petitioner requested
review of the Regional Director's order dismissing
petition on the ground that he departed from prece-
dent and urging that, in the circumstances, the Board
should retain its jurisdiction in this case.3
The Board, having duly considered the matter,
found merit in the request for review and decided
that, in the circumstances of the case, it would effec-
tuate the policies of the Act to retain jurisdiction
over the Employer's operations 4
Accordingly, the Regional Director's order dis-
missing petition is hereby vacated, and he is directed
to reinstate the petition and to proceed further in
accordance with the Board's Rules and Regulations.
By direction of the Board, Robert Volger, Deputy
Executive Secretary.
3 The Petitioner had earlier filed a petition with the New York State La-
bor Relations Board (NYSLB) for an election among these employees in-
volved. The Petitioner asserts that on December 18, 1973, at a prehearing
conference in that proceeding, the Employer's counsel stated he believed the
National Labor Relations Board had jurisdiction as the Employer had an
annual volume of business of $100,000 and made purchases in excess of
$50,000 For this reason, Petitioner states, it filed the instant petition on
December 19 It states further that at the hearing hereinbefore held on
January 11, 1974, the Employer "raised no issues but did not consent to an
election" and that, based on its understanding that jurisdiction would be
asserted herein, the Petitioner, on January 15, withdrew its petition before
the NYSLB
Clearly, a question concerning the Board's legal , or statutory, jurisdic-
tion may be raised at any time However, where a party contests the Board's
assertion of jurisdiction under one of its discretionary standards , the issue
must be timely raised Here , the Regional Director, in his Decision and
Direction of Election, asserted jurisdiction over the Employer on the basis
of the Board's discretionary standard for nonretail establishments Indeed,
at the representation hearing the Employer agreed that "during the past 12
months it has purchased and received electrical supplies valued in excess of
$50,000 from firms located within the State of New York, which firms re-
ceived said profits (sic) from manufacturers outside the State of New York"
and the Employer did not seek to contest the Regional Director's assertion
of Jurisdiction by filing a request for review of his decision Nor did it at any
time prior to the election conducted pursuant thereto file a motion for re-
consideration of his decision on the basis of newly discovered evidence
relating to its indirect flow The file indicates, rather, that only after the
election, after the issuance of a complaint alleging that it had discriminatori-
ly laid off all of the employees in the appropriate unit, and during the
prehearing conference prior to the scheduled hearing in the consolidated
cases, did the Employer come forward with its books and records in an
effort to demonstrate that it does not in fact meet the Board's discretionary
standard for assertion of jurisdiction over nonretail enterprises The exis-
tence of the Board's statutory jurisdiction is clear and not contested The
Board concludes that the Employer may not at this time relitigate the ques-
tion whether it meets the nonretail standard See Prestige Hotels, Inc, d/b/a
Marie Antoinette Hotel, 125 NLRB 207, 208-209 (1959)
214 NLRB No. 150