Rock Asphalt, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1950

91 N.L.R.B. 1515 (N.L.R.B. 1950)

In the Matter of ROCK ASPHALT, INC. AND GENERAL CONTRACTING
EMPLOYERS' ASSOCIATION and NAPOLEON SARGENT, AN INDIVIDUAL
In the Matter Of ROCK ASPHALT, INC. AND GENERAL CONTRACTING
EMPLOYERS' ASSOCIATION and COKER LOCKE, AN INDIVIDUAL
In the Matter Of INTERNATIONAL HOD CARRIERS', BUILDING & COMMON
LABORERS' UNION OF AMERICA, LOCAL 210, A. F. L. and NAPOLEON
SARGENT, AN INDIVIDUAL
In the Matter of INTERNATIONAL HOD CARRIERS', BUILDING & COMMON
LABORERS' UNION OF AMERICA, LOCAL 210, A. F. L. and COKER LOCKE,.
AN INDIVIDUAL
Cases Nos. 3-CA-206, 3-CA--302, 3-CB-57, and 3-CB-81.-Decided
November 6, 1950
DECISION AND ORDER
On May 24, 1950, during the course of the hearing in Cases Nos.
3-CA-206 and 3-CB-57, Trial Examiner Albert P. Wheatley granted
the Respondents ' motion to dismiss the complaints on jurisdictional
grounds, finding that the business of the Respondent Company is
not the type over which the Board asserts jurisdiction. At the same
time , the Trial Examiner ruled upon the Respondents ' further motion
to dismiss the complaints on the merits by dismissing substantially
the entire complaint against the Respondent Union and parts of the
complaint against the Respondent Company. The General Counsel
filed with the Board a request for review of the Trial Examiner's
ruling and moved to set aside such ruling. Subsequently , charges
were filed in Cases Nos. 3-CA-302 and 3-CB-81. The General Coun-
sel moved to amend the complaints in Cases Nos. 3-CA-206 and 3-
CB-57, consolidate these cases with the recently filed cases, and
reopen the record. The Respondent Company filed a brief in opposi-
tion to this motion.
The Board 1 has considered the rulings of the Trial Examiner, the
request of the General Counsel for review of the dismissal by the
Trial Examiner , the motion of the General Counsel to amend the com-
Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Murdock and Styles].
91 NLRB No. 228.
1515
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaints, consolidate the cases, and reopen the record, the briefs, and
the entire record in the case, and makes the following findings :
The record reveals the following facts bearing on the jurisdictional
issue : The Respondent Company is a New York corporation doing
business in that State, engaged primarily in the paving of streets and
roads. During the year 1949, the Respondent Company made pur-
chases of supplies. and materials amounting to $317,973 in value. . Of
these purchases, approximately $15,000 worth represented material
:shipped to the Respondent Company directly from points outside the
State of New York. Of the remaining purchases, 5 percent, though
.bought locally, originated out of the State.
During 1949 the Respondent Company had a total revenue of ap-
proximately $1,239,000, all of which was obtained for work done
within the State of New York. Approximately $287,000 of this
.amount was received for services to" two public utilities, the New
York Telephone Company and the Buffalo Niagara Electric Com-
pany. The work performed for the former consisted of excavating
and placing tile in connection with the laying or changing of tele-
phone lines. For the latter. company, the Respondent Company
placed light posts along Buffalo streets.
Buffalo Niagara Electric Company is a subsidiary of Niagara
Hudson Power Corporation, over which the Board has asserted juris-
diction? The Board has asserted jurisdiction also over the New York
Telephone Company.3
On the foregoing facts we find that the Respondent Company is
engaged in operations affecting commerce within the meaning of
the Act.
Inasmuch as the Respondent Company performs services having a
value of over $50,000 per year for public utility companies over
which we assert jurisdiction, and such services are necessary to the
operations of those companies, we find that the operations of the Re-
spondent Company affect commerce to the extent that it will effectuate
the policies of the Act to assert jurisdiction in this case.-' Accordingly,
we will remand this matter to the Trial Examiner for the purpose of
resolving the substantive issues raised by the complaints, receiving
additional evidence, if necessary, and issuing an appropriate order
with respect thereto.
As to the merits, we reverse the Trial Examiner's dismissal of sub-
stantially the entire complaint against the Respondent Union and
parts of the complaint against the Respondent Company. We do
2 79 NLRB 1115.
3 89 NLRB 383.
4 Hollow Tree Lumber Company, 91 NLRB 635.
ROCK ASPHALT, INC. 1517
this without passing in any respect on the merits of the allegations in
the complaints. We believe that, as considerable evidence was ad-
duced with regard to the paragraphs of the complaint dismissed on
the merits in the Trial Examiner's ruling, such portions should more
-appropriately be treated, in: the complete Intermediate Report to be
prepared and issued by the Trial Examiner.
We grant the motion of the General Counsel for consolidation of
the cases herein, and for a reopening of the record. We will remand
the motion for amendment of the complaints to the Trial Examiner
for his consideration and appropriate action thereon.
ORDER
IT Is HERESY ORDERED that the above-entitled proceedings, be, and
they hereby are, reopened, consolidated, and remanded to the Trial
Examiner for his ruling on the motion of the General Counsel to
amend the complaints, for the taking of further evidence and for the
preparation and issuance of an Intermediate Report, setting forth his
findings of facts, conclusions'of law, and .recommendations with re-
spect to the unfair labor practices alleged in the complaints herein.