Row Construction Co.

National Labor Relations Board - Board Decisions

Feb 9, 1950

88 N.L.R.B. 580 (N.L.R.B. 1950)

In the Matter Of CLARENCE Row, AN INDIVIDUAL DOING BUSINESS AS Row
CONSTRUCTION COMPANY and LUTHER STAGNER
In the Matter of Los ANGELES COUNTY DISTRICT COUNCIL OF CARPEN-
TERS, AFL, AND LOCAL 1052, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL 1 and LUTHER STAGNER
Cases No. 21-CA-304 and 21-CB-106.-Decided February 9,1950
DECISION
AND
ORDER
On November 28, 1949, Trial Examiner A. Bruce Hunt issued his
order granting the Respondents' motion to dismiss the complaint in
the above-entitled proceedings upon the ground that the operations of
the Respondent, Row, while not wholly unrelated to commerce, are
essentially local in character and that the assertion of jurisdiction in
these cases would not effectuate the policies of the National Labor
Relations Act. Thereafter, the General Counsel filed a statement of
exceptions, a brief, and a, motion that the Board issue an order direct-
ing the Trial Examiner to prepare and issue a Supplemental Inter-
mediate Report setting forth his findings of fact, conclusions of law,
and recommendations with respect to legal jurisdiction and the unfair
labor practices alleged in the complaint herein. In connection with
the foregoing motion to remand, the General Counsel does not challenge
the Trial Examiner's authority to dismiss complaints pursuant to Sec-
tion 203.35 (h) of the Board's Rules and Regulations, as amended.
However, he seemingly argues that this case presents an exception to
the above provision because a matter of policy is involved, i. e., whether
or not it would effectuate the purposes of the Act to exercise jurisdic-
tion here. We do not find this argument persuasive. This section of
the Rules grants to Trial Examiners, with respect to cases assigned to
them, the unqualified authority "to dismiss complaints or portions
thereof." We see no reason at this time to create an exception to our
Rules and Regulations and depart from our established procedure 2
I As amended at the hearing.
2 Haleston Drug Stores, Inc., 86 NLRB 1166 ; Lewis Brothers Bakeries , Inc., A Corpo-
ration, 86 NLRB 1326; George W. Looby, 85 NLRB 412 ; Central Tower, Inc., 84
NLRB 357.
88 NLRB No. 132.
580
ROW CONSTRUCTION COMPANY 581
by imposing upon the authority delegated to Trial Examiners to dis-
miss complaints the limitation suggested by the General Counsel.
Accordingly, we hereby deny the General Counsel's motion to remand
these cases to the Trial Examiner for the issuance of an Intermediate
Report. In view of the fact that the General Counsel's statement of
exceptions and brief were filed within 10 days from the date of the
order of dismissal, we shall treat these papers as a request to review
the order of the Trial Examiner dismissing the entire complaint, pur-
suant to Section 20327 of the Board's Rules and Regulations.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the order
issued by the Trial Examiner, the statement of exceptions filed by the
General Counsel, the briefs of the parties, and the entire record in the
case.
The Respondent Employer, Clarence Row, is a licensed general con-
tractor whose principal place of business is his residence in Pasadena,
California. During the entire year 1948 and early 1949, the period
covered by the testimony in the record, Row's business activities were
limited to construction of small municipal buildings for the city of
Los Angeles at the total contract price of $176,107. The value of all
the materials and finished products used on the aforesaid construction
projects by both the Respondent, Row, and his subcontractors was
$50.000. Although $16,000 worth of the supplies and materials origi-
nated from points outside the State of California, all such materials
used by Row and his subcontractors were purchased from local dealers.
For the reasons stated in the order issued by the Trial Examiner herein,
we find that the assertion of jurisdiction in these proceedings would
not effectuate the policies of the National Labor Relations Act.3 Ac-
cordingly, we shall affirm the Trial Examiner's order dismissing the
complaint herein.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the consolidated complaint against Clar-
ence Row, an individual doing business as Row Construction Company,
and Los Angeles District Council of Carpenters, AFL, and Local
1.052, United Brotherhood of Carpenters and Joiners of America,
AFL, be, and it hereby is, dismissed.
8 Petredis and Fryer, 85 NLRB 241 ; Walter J. Mentzer, 82 NLRB 389.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon charges duly filed, the General Counsel issued his consolidated complaint
dated June 17, 1949, in the above-entitled cases. Answers were filed by the
three Respondents, namely, Clarence Row ; Los Angeles County District Council
of. Carpenters, AFL; and Local 1052, United Brotherhood of Carpenters and
Joiners of America, AFL;' denying the jurisdiction of the Board and the
commission of unfair labor practices.
A hearing was held at Los Angeles, California, before the undersigned Trial
Examiner on August 9 to 1.2, 1949. All parties were represented by counsel,
participated in the hearing, and were afforded full opportunity to examine and
cross-examine witnesses, to introduce relevant evidence, and to file briefs and/or
proposed findings and conclusions. Briefs were received from the parties.
At the close of the hearing, the Respondents moved to dismiss the complaint.
on jurisdictional and other grounds. This motion was taken under advisement
and is now granted for the following reasons.
The Respondent Employer, Clarence Row, is a licensed general contractor
whose principal place of business is his residence in Pasadena, California. He
has no office employees, but is assisted in business matters by his wife. Row
owns the following equipment for use in his business : a table saw ; 2 electric
"skill" saws which are hand-maneuvered ; a surveyor's level ; a drill ; 2 wheel-
barrows ; a typewriter ; and an adding machine. Row rents, on occasions when,
needed, certain heavier equipment, such as a trench digger, a "jeep" digger, a
truck, and a "skip" loader.
During the entire year 1948 and early 1949, the period covered by the evidence„
Row's business consisted of the construction of several small municipal buildings
for the City of Los Angeles. The total contract prices for this construction was.
$176,107, of which the principal projects were a fire station at $102,951 and 2
high, school music buildings or rooms at $45,637. The number of Row's em-
ployees at any time depends Upon the size and number of projects. The highest
number of employees on any project at the peak period of construction was-
approximately 20, and was considerably less in all other instances.
In erecting all projects, Row made purchases of materials, such as lumber,.
sand, tile, cement, and steel, from suppliers in the City and County of Los.
Angeles. He also entered into various contracts with subcontractors within
the same geographical area, for the installation of finished products, such as.
gas heaters and electrical and plumbing supplies. The total value of materials.
and finished products used on all construction projects, covering the 14-month
period of January 1948 through February 1949, was $50,000, of which $34,000,
represented purely local materials and finished products, and $16,000 represented:
both materials and finished products received from points outside the State of
California by the individuals and concerns within the City and County of Los
Angeles with whom Row did business.
I am of the opinion, having considered the jurisdictional allegations of the.
pleadings, the evidence thereon, and the positions of the parties as stated in
the record, that the operations of the Respondent Row, while not wholly unrelated
to commerce, are essentially local in character and that the assertion of juris-
diction in these cases would not effectuate the policies of the National Labor-
Relations Act. The General Counsel in fact concedes that the business of Row,.
1 As amended at the hearing.
ROW CONSTRUCTION COMPANY 583
standing alone, is so small that the Board, should it follow certain precedents,
would not exercise jurisdiction herein.' But, according to the General Counsel,
there are reasons why jurisdiction should be asserted here. First, that the gen-
eral contracting industry is a multimillion dollar industry, conducted primarily
by small units which constitute, in the aggregate, a vast volume of interstate
-commerce; that nearly 50 percent of all general contracting within Southern
California is performed by contractors with three or less employees and that the
fact that Row's "own contribution to the demand for construction products may
be small in volume is not enough to remove him from the scope of Federal
regulation. . . ."' A similar argument was advanced before the Board in the
Mentzer case, and disposed of adversely to the General Counsel' Second, that
if jurisdiction exists in this proceeding, the Board must exercise it, that dis-
cretion does not lie within the Board to dismiss a complaint solely because it
believes that to assert jurisdiction would not effectuate the policies of the
Act, and that the question whether jurisdiction should be asserted in any
case is for determination exclusively by the General Counsel. This proposition
too has been considered by the Board, and decided adversely to the General
Counsel.`
For the reasons stated, the motion to dismiss the complaint upon jurisdictional
grounds is hereby granted ; and it is hereby
ORDERED, that said complaint be dismissed in its entirety.
Any party may obtain a review of the foregoing order, pursuant to Section
203.27 of the Rules and Regulations of the Board, Series 5 as amended August
18, 1948, 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 case shall be closed.
A. BRUCE HUNT,
Trial Evaoniner.
Dated November 28, .1949.
See Petredis & Fryer, 85 NLRB 241, and cases cited therein.
The record contains a stipulation concerning the general contracting industry in Cali-
fornia, which was agreed to by the attorney for the Respondents after noting his objection
upon grounds of immateriality and irrelevancy.
4 'Walter J. Mentzer, 82 NLRB 389. Nor do I believe that the nature of Row's business,
as an individual , lost its character as "local " because be was a member of an association
of general contractors , one of the functions of which was to bargain collectively with
various unions in the industry . This association is not a party to the instant proceeding
and the record does not disclose the volume of business done by the individual members
thereof.
Haieston Drug Stores, Inc ., 86 NLRB 1166.