Tampa Sand & Material Co.

National Labor Relations Board - Board Decisions

Feb 28, 1950

88 N.L.R.B. 861 (N.L.R.B. 1950)

In the Matter of TAMPA SAND & MATERIAL CO)NIPANY , EMPLOYER and
UNITED STONE & ALLIED PRODUCTS WORKERS OF AMERICA, CIO,
PETITIONER
Case No. 10-CA-074.-Decided February 28,1950
DECISION
AND
ORDER REMANDING CASE TO TRIAL EXAMINER
At the original hearing in this matter on June 28, 1949, and before
the introduction of evidence on the unfair labor practices alleged in
the complaint, Trial Examiner J. J. Fitzpatrick orally stated on the
record his decision to dismiss the complaint, on motion of the Respond-
ent, upon the ground that the Respondent's operations are essentially
local in character.
On July 27. 1949, the General Counsel requested a review of the
Trial Examiner's decision, and filed a brief in support of his request.
On August 12, 1949, the Respondent filed its brief in opposition thereto.
The charging Union also requested a review of the Trial Examiner's
ruling. Pursuant to an order of the Board, dated October 19, 1949,
a further hearing on the Respondent's business operations was held
on December 2 and 5, 1949.
The Board has considered the request of the General Counsel and
the Union for review, the briefs of the respective parties, and the entire
record in the case, and makes the following findings :
TIIE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation, is engaged in Tampa,
Florida, in the manufacture and sale of concrete products, house piers,
bases, joists, tile, drain tile, concrete blocks, stepping stones, concrete
bricks, ready-mix cement, rock, sand, shell, and slag. The Respond-
ent employs approximately 150 employees. The Respondent's facili-
ties consist of a yard where its ready-mix plant is located, a block
plant and an asphalt plant located on the outskirts of the city. With
the exception of the block plant which is owned by Municipal Bond
Mortgage Corporation, the Respondent owns all property which it
uses in connection with its operations.
88 NLRB No. 199.
861
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During 1948 and the first 5 months of 1949, the Respondent pur-
chased materials and supplies valued at approximately $1,911,000. Of
this amount, cement and gravel l valued at approximately $58,450
(this figure includes purchases of pozolith amounting to $21,414) and
machinery and equipment valued at $9,000 were purchased and shipped
to the Respondent from sources outside the State of Florida. Pur-
chases of materials during this period from local dealers or concerns
Within the State of Florida, but originating outside the State, included
$56,500 for gasoline and oil, $26,000 for tires and tubes, and $24,000
for automotive parts. During 1948 and the first 5 months of 1949 the
Respondent sold materials valued in excess of $3,000,000. All sales
and deliveries Were made to purchasers within the State of Florida for
use in local projects within an area not more than 50 miles from Tampa,
Florida.2 The Respondent supplied approximately 60 percent of the
concrete blocks and other concrete products used for construction pur-
poses in the Tampa area.
In addition to its sand and gravel business, the Respondent also
handles the sale of asphalt for the Mexican Petroleum Corporation
and the Texas Company on a brokerage. basis.3 Under this brokerage
arrangement, the Respondent's sale of asphalt is limited to the county
of Hillsborough. Asphalt sold in this manner during the above-
mentioned period amounted to approximately $193,826, for which the
Respondent received approximately $10,000 in brokerage fees.
The record also shows that Cone Brothers Contracting Company,
also a Florida corporation, and the Respondent occupy the same offices
together with Municipal Bond Mortgage Corporation. The Respond-
ent and Cone Brothers pay rent on an equal basis to Municipal Bond
which owns the office building. Cone Brothers has its own manage-
ment officials and personnel, maintains its own payroll and book-
keeping system (although the paymaster employed by Cone Brothers
also has authority to sign payroll checks for the Respondent), pur-
chases its own supplies, uses its own equipment and materials, employs
' According to the Respondent, purchase of cement and gravel from sources outside the
State of Florida represented emergency purchases made when local supplies were not
adequate or available.
2 Approximately 5 percent of such sales was made to contractors and industrial concerns
engaged in interstate commerce or in activities affecting interstate commerce such as
American Cyanamid Company, Peninsular Telephone Company, Stone and Webster, Con-
tractors, Paul Smith Construction Company, Seaboard Railroad, Kraft Cheese Company,
and California Packing Corporation.
2 The asphalt is invoiced to the Respondent from the Mexican Petroleum Corporation and
the Texas Company, and paid for by the Respondent , who in turn bills the purchasers.
The asphalt originates outside the State of Florida ; it is received by the purchasers within
the State directly from the facilities of the Mexican Petroleum Corporation and the Texas
Company . No deliveries or handling arrangements are made by the Respondent after the
asphalt arrives in Tampa, and no employees of the Respondent have any connection with
such transactions other than clerical employees who make record entries and compute
commissions.
TA^IPA SAND & MATERIAL COMPANY 863
its own cashier, and does not commingle its funds with those of the
Respondent. The facilities of Cone Brothers consist of a shop and
warehouse, and, in addition, a distribution and storage warehouse
where it does a small amount of commercial storage business. Title to
these facilities is held by Municipal Bond.
J. L. Cone is the majority stockholder of the Respondent, of Cone
Brothers, and of Municipal Bond, the remaining stock in at least the
first two named concerns being held by substantially the same persons.
J. L. Cone is the president of all three corporations; the other corporate
officers are also substantially alike in each corporation.
Cone Brothers is in the construction business; its projects include
U. S. highways , sewers, bridges , and parking lots. It does not operate
outside the State of Florida and does not ship any material outside the
State. During 1948 and the first 5 months of 1949 Cone Brothers
purchased materials and supplies valued at approximately $744,687.
Of this amount approximately $86,018 represents purchases of mate-
rials (including asphalt) made from the Respondent. Purchases of
materials by Cone Brothers during this period from local dealers or
brokers within the State of Florida, but originating outside the State,
amounted to approximately $92,931. For the same period Cone Broth-
ers did a gross contract business of approximately $3,030,063, of which
$2,119,131 (69.9 percent) represents work done on Federal Aid Proj-
ects. Cone Brothers stipulated that it is engaged in interstate
commerce.
Conclusions
In an earlier representation proceeding 4 the Board found that the
Respondent's operations were essentially local in character and that it
would not effectuate the policies of the Act to assert jurisdiction in that
matter. The Trial Examiner in the present case based his dismissal
on that decision. However, the record in the representation proceed-
ings did not disclose the full extent of the Respondent's operations.
It did not, as does the present record, disclose the Respondent's broker-
age operations which, during a 17-month period, involved sales of
asphalt amounting in value to approximately $200,000, all of which
asphalt came from outside the State of Florida . Nor did the repre-
sentation proceeding disclose, as does this record, the Respondent's
close interrelationship with Cone Brothers , which purchases asphalt
and other materials from the Respondent and is engaged in interstate
commerce, including the building of U. S. highways .5 These two
added factors , in our opinion , clearly distinguish the present case from
the 111akins case relied on by our dissenting colleague.
' 78 NLRB 629.
5 Strong Company , 86 NLRB 687.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the Respondent's operations, as more fully developed
in the present record, we are now persuaded that the Respondent is
engaged in commerce within the meaning of Section 2 (6) and (7,) of
the Act, and also that it would effectuate the purposes and policies of
the Act to assert jurisdiction in the matter. We shall accordingly
remand the proceeding for a resolution of the issues raised by the
complaint.
ORDER
IT is I-ITREBY ORDERED that this proceeding be, and it hereby is, re-
manded to the Trial Examining Division to conduct a hearing and to
prepare and issue an Intermediate Report on the allegations set forth
in the complaint issued in this proceeding.
MEMBER STYLES took no part in the consideration of the above Deci-
sion and Order Remanding Case to Trial Examiner.
MEMBER MURDOCK, dissenting :
I do not believe that the elaboration of commerce data coming out
of the reopened hearing in this case provides sufficient reason for us to
reverse our earlier unanimous decision not to assert jurisdiction over
the same Respondent in a prior representation cases My colleagues
now rely upon (1) the Respondent's brokerage activities in the sale of
out-of-State asphalt, and (2) its "close interrelationship with Cone
Brothers which purchases asphalt and other materials from the re-
spondent and is engaged in interstate commerce, including the build-
ing of U. S. Highways," as reasons for asserting jurisdiction. With
respect to the first factor mentioned, I believe this case is controlled
by Makins Sand cC Gravel Co.' There the majority refused to
take jurisdiction over an employer in the sand, gravel, and concrete
business despite the importation from outside the State of substantial
amounts of cement used to manufacture ready-mix concrete for sale.
I am unable to see that the fact that the out-of-State inflow in Makins
was of cement while here it is asphalt, makes any significant difference.
I do not believe that the "interrelationship" between the Respondent
and Cone Brothers is such as to cause us to take jurisdiction of the
Respondent merely because we would take jurisdiction of Cone
Brothers on the basis of its construction work on U. S. highways.,,
Cone Brothers is a corporate entity separate and apart from the Re-
spondent and operates as an independent business with its own equip-
ment, management officials, and personnel. The mere fact that the
9 78 NLRB 629.
' 85 NLRB 37.
8 Strong Company, 86 NLRB 687.
TAMPA SAND & MATERIAL COMPANY 865
two corporations have substantially the same officers and stockholders
is not sufficient in my mind to cause us to take jurisdiction of the one
which is engaged in a type of business which the Board has recognized
to be essentially local in character. I note that the majority also refers
to the fact that Cone Brothers purchases asphalt and other materials
from the Respondent, apparently utilizing that as a further reason for
asserting jurisdiction over Respondent. Reliance on such a factor
would be contrary to Valley Concrete Comapwny, 88 NLRB 519,
footnote 4, where the Board specifically recognized that although the
business of maintaining U. S. highways is in commerce, the business
of supplying materials to contractors so engaged remains essentially
local in character.
For the foregoing °reasons I do not join my colleagues in their de-
cision to assert jurisdiction over this respondent but would adhere to
our prior determination not to do so.