Sueji Kanemoto

National Labor Relations Board - Board Decisions

May 17, 1967

164 N.L.R.B. 725 (N.L.R.B. 1967)

SUEJI KANEMOTO, GENERAL CONTRACTOR 725
Sueji Kanemoto , General Contractor and
United Brotherhood of Carpenters and
Joiners of America , Local 745, AFL-CIO,
and Construction and General Laborers'
Union , Local 368, Laborers ' International
Union of North America , AFL-CIO. Case
AO-98.
May 17, 1967
ADVISORY OPINION
This is a petition filed on November 16, 1966, by
the United Brotherhood of Carpenters and Joiners of
America , Local 745, AFL-CIO, and Construction
and General Laborers ' Union , Local 368 , Laborers'
International Union of North America , AFL-CIO,
herein called the Petitioners , pursuant to Sections
102.98 and 102 .99 of the National Labor Relations
Board Rules and Regulations , Series 8, as amended.
On November 21, 1966 , the Petitioners filed an
affidavit , sworn to November 17, 1966, in support of
their petition . On January 3, 1967, Roy O. Hoffman,
Regional Director for Region 20 (which includes
Subregion 37), herein called the Regional Director,
moved to intervene on the basis of his administrative
dismissal , on jurisdictional grounds, of a
representation petition in Case 37-RM-70, filed by
Sueji Kanemoto , hereinafter called the Employer,
and involving the Petitioners .' Subsequently, on
January 9 , 1967 , the Petitioners filed an answer to
the Regional Director 's motion to intervene in which,
among other things , they again requested an
evidentiary hearing. On April 14, 1967, the Regional
Director filed a supplement to his motion to
intervene . No party filed an answer to the
supplement to intervene . The Regional Director's
motion to intervene as supplemented is hereby
granted . The Petitioners ' request for an evidentiary
hearing is hereby denied as the Board 's Advisory
Opinion procedures do not provide for or
contemplate such a hearing.2
In pertinent part , the petition , supplement
thereto, affidavit in support of the petition,
intervention and answer thereto, and supplement to
the intervention allege as follows:
1. Presently before the Hawaii Employment
Relations Board , State of Hawaii , herein called the
State Board, is a representation proceeding (Docket
66-22) initiated by the Employer on November 4,
1966 , and involving the Petitioners.
2. The Employer is a contractor engaged in the
building and construction industry in Maui , Hawaii.
It is alleged in the petition herein on information and
belief that "during the past year" the Employer
"purchased and received materials valued in excess
of $50,000 directly and indirectly from places located
outside the State of Hawaii." In the affidavit
submitted in support of the petition, the affiant, an
official of one of the Petitioners, avers generally that
the materials used by the Employer in his
construction working "during the past year" were
purchased by the Employer from local suppliers
"who had purchased and received them from
outside the State of Hawaii," and that "the total
value of these materials was in excess of $50,000."
The affiant, in addition, asserts broadly that "on the
basis of his personal investigation, and on
information received from other sources which he
believes to be true and correct," the Employer,
during the year preceding the filing of the petition
with the State Board, "did over $150,000 business as
a general and specialty contractor in the County of
Maui, Hawaii." Also, in their answer to the motion to
intervene, the Petitioners not only deny certain
specific statements made in the motion, but allege,
among other things, that during the 12 months
preceding November 14, 1966, construction permits
were issued to the Employer as a general contractor
for work at the original estimated cost of $94,732.20,
and that additional work was performed by him as a
subcontractor. They claim in said answer "on the
basis of their experience in the construction
industry, that between 50 percent and 60 percent of
total construction costs are material cost, and that at
least 90 percent of all building materials used in
Hawaii originate outside the State." Hence, they
conclude, the Employer purchased and received
building materials from outside Hawaii in the
amount of approximately $50,000 even for the year
1965, when, as indicated below, the Employer
according to his figures, made sales totaling
$93,020.46.
3. On November 14, 1966, the Employer filed a
representation petition with the Board, Case
37-RM-70, seeking an election among his
employees. On December 16, 1966, the Regional
Director dismissed the petition because "it would
not effectuate the purposes of the Act to assert
jurisdiction herein." No appeal was taken by the
Employer from this administrative dismissal.
4. In his intervention, the Regional Director sets
forth information furnished by the Employer and
authenticated by a public accountant in all affidavits
sworn to December 28, 1966, and April 4, 1967, and
made part of the intervention. The public accountant
states in his affidavits that the Employer did not
receive "from any source materials valued at
$50,000 or in excess thereof in any recent 12-month
period," and that the Employer's total sales for the
I On December 28, 1966, counsel for the Petitioners filed a
"Petition for Review " The Board regards that petition as a
supplement to the petition for an advisory opinion, and has
considered the information contained therein and the request for
an evidentiary hearing The request is disposed of below
' See Sections 102 98 apd 102 104, Board Rules and
Regulations, and Section 101 39, Statements of Procedure. Arena
Lounge, Inc, 145 NLRB 315. Midwest News Reel Theaters, Inc,
149 NLRB 424
164 NLRB No. 106
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year 1965 amounted to $93,020.46, of which only
$44,645.09 was made to customers engaged in
business ; the remainder reflects sales to individuals.
The public accountant also avers in his affidavits
that, during calendar year 1966, the Employer's
purchases of materials and supplies totaled
$43,604.64, while his total sales amounted to
$123,440.52 of which only $43,941.06 were
commercial while the remainder were individual
personal accounts.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is engaged in a nonretail
business as a contractor in the building and
construction industry in Maui, Hawaii, where he
deals with commercial enterprises and with
individuals.
2. The Board's current standard for the assertion
of jurisdiction over nonretail enterprises within the
Board's statutory jurisdiction requires an annual
minimum of $50,000 out-of-State inflow or outflow,
direct or indirect. Siemons Mailing Service, 122
NLRB 81.
3. The Employer and a public accountant, the
primary and most immediate sources of information,
insofar as the Employer's books and records and
financial transactions are concerned , have supplied
from their personal knowledge dollar and cent
commerce data which in material respects is not
impeached or placed in serious doubt by any specific
and direct evidence submitted by the Petitioners.
On the basis of the information furnished by the
Employer and his accountant , it does not appear that
either the Employer's annual out-of-State outflow,
direct or indirect, or his annual out-of-State inflow,
direct or indirect, amounts to $50,000.
Consequently, the Board's discretionary standards
for the assertion of jurisdiction over his nonretail
operations have not been met.
Accordingly, the parties are advised, under
Section 102.103 of the Board Rules and Regulations,
Series 8, as amended, that the Board will not
exercise jurisdiction over theEmployer 's operations.