Texarkana Construction Co.

National Labor Relations Board - Board Decisions

Jul 21, 1964

148 N.L.R.B. 1 (N.L.R.B. 1964)

Texarkana Construction Company and International Hod Build-
ing and Common Laborers Union, Local 772. Case No. A0-77.
July 21, 1964
ADVISORY OPINION
This is a petition filed on June 22,1964, by International Hod Build-
ing and Common Laborers Union, Local 772, herein called the Peti-
tioner, for an Advisory Opinion in conformity with Sections 102.98
and 102.99 of the National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended.
In pertinent part, the petition alleges as follows :
1. The Petitioner and Texarkana Construction Company, herein
called the Company, are parties to a pending lawsuit (Cause No.
019539) in the Fifth Judicial District Court of Bowie County, Texas,
herein called the State Court, in which the Company is seeking a
permanent injunction against the Petitioner's picketing.
2. The Company is a Texas corporation engaged as a general con-
tractor in the construction industry business.
3. To the best of the Petitioner's knowledge, the Company is en-
gaged in interstate commerce, having completed within recent weeks
a half-million dollar job in the State of Arkansas. The Company
denies that it is engaged in interstate commerce.
4. The State Court has made no findings as to whether or not the
Company is engaged in interstate commerce.
5. The Petitioner contends that the State Court does not have juris-
diction 'because under the National Labor Relations Act the Board
has preempted "jurisdiction over picketing problems."
6. There is no unfair labor practice proceeding involving the same
labor dispute pending before the Board.
7. Although served with the copy of the petition for Advisory
Opinion, no response as provided by the Board's Rules and Regula-
tions has been filed by the Company.
On the basis of the above, the Board is of the opinion that :
1. The Employer apparently is a nonretail enterprise engaged as a
general contractor in the construction business at Texarkana, Texas.
2. The current standard for the assertion of jurisdiction over non-
retail 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 85, 88.
3. Except for the general allegation that the Company had recently
completed a half-million dollar job in Arkansas, and that the Com-
148 NLRB No. 1. 1
760-577-65-vol. 148-2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany is engaged in interstate commerce, which we assume arguendo,
the Petitioner has not submitted any specific commerce data to estab-
lish that the Employer's inflow or outflow, direct or indirect, satisfies
the test for invoking the Board's discretionary standard for the asser-
tion of jurisdiction over nonretail enterprises. In these circumstances,
the Board is unable to make a meaningful jurisdictional determination
herein.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, on the
allegations here present, the Board is unable to conclude whether or
not it would assert jurisdiction herein with respect to labor disputes
cognizable under Sections 8, 9, and 10 of the Act.
D'Armigene , Inc. and Local 107, International Ladies' Garment
Workers' Union , AFL-CIO. Case No. 2-CA-9396. July 23,
1964
DECISION AND ORDER
On April 1, 1964, Trial Examiner Stanley N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel and the Respondent filed ex-
ceptions to the Trial Examiner's Decision and supporting briefs, and
the Charging Party filed a brief in reply to the Respondent's brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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 Trial Ex-
aminer's Decision, the exceptions, the briefs, and the entire record in
this proceeding, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following exceptions.'
The Trial Examiner found, and we agree, that some of the Respond-
ent's employees had engaged in an unfair labor practice strike. We
1 The Respondent has excepted to the credibility findings made by the Trial Examiner.
It Is the Board ' s established policy, however , not to overrule a Trial Examiner's resolutions
with respect to credibility unless, as is not the case here , the clear preponderance of all the
relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3).
The Respondent 's request for oral argument before the Board is hereby denied as the
record, the exceptions , and the briefs adequately present the issues and positions of the
parties.
148 NLRB No. 2.