De Marco Concrete Block Co.

National Labor Relations Board - Board Decisions

Nov 5, 1975

221 N.L.R.B. 341 (N.L.R.B. 1975)

DE MARCO CONCRETE BLOCK COMPANY
De Marco Concrete Block Company and Local # 675,
International Union of Operating Engineers. Case
12-CA-6571
November 5, 1975
DECISION AND ORDER REMANDING
THE CASE TO THE ADMINISTRATIVE
LAW JUDGE
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On July 28, 1975, Administrative Law Judge John
P. von Rohr issued the attached Decision in this
proceeding recommending that the complaint be
dismissed for the reason that the operations of the
Respondent do not meet the Board's standards for
the assertion ofjurisdiction.1 Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Decision and supporting briefs and Respondent
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and finds merit in the exceptions of the
General Counsel and the Charging Party. According-
ly, it affirms the rulings, findings, and conclusions of
the Administrative Law Judge only to the extent
consistent with the following.
Respondent is a Florida' corporation engaged in the
manufacture and sale of concrete block at a plant
located in Pompano Beach, Florida. During the 12-
month period preceding the filing of the unfair labor
practice charges herein, Respondent had within-state
sales of $995,367.58, of which $15,353.69 represented
retail sales, and out-of-state purchases of $20,595.35.
During the same period, it made sales valued at
$22,386.67 to Lee A. Walker Co., a Florida firm
engaged in the construction of condominiums,
municipal, and church buildings; sales valued at
$1,870:90 to Deerfield Builder Supplies, a Florida
firm engaged in the retail sale of building materials;
sales valued at $19,551.18 to Newmar Building
1 The Administrative Law Judge's Decision contains no findings with
respect to the unfair labor practices alleged to have been violative of Sec
8(a)(1) and (3) of the Act
2 Carolina Supplies and Cement Co., 122 NLRB 88 (1958).
3 Siemons Mailing Service, 122 NLRB 81 (1958)
4 Respondent's sales to Walker, Deerfield, and Newmar amounted to
only $43,809.38. Respondent contends that the Administrative Law Judge
improperly permitted hearsay testimony to establish that Newmar made
purchases from sources outside the State of Florida and therefore that the
Board had no jurisdiction of Newmar. We find no merit in this contention
Testimony as to the business of Newmar was elicited from Edward Kaplan
who stated that he was the brother-in-law of Mr. Berman, the owner of
221 NLRB No. 61
341
Corp., a Florida company engaged in the construc-
tion and sale of family homes and apartments; sales
valued at $6,696.28 to Meyer Construction Corp., a
Florida company engaged in the construction of
condominiums, houses, and shopping centers; and
sales of $23,187.15 to New Orleans Homes, Inc., a
Florida firm engaged in the construction and sale of
residential homes.
The Administrative Law Judge dismissed the
complaint on the ground that Respondent did not
meet the Board's discretionary standards for the
assertion of jurisdiction. He concluded that the retail
standard of $500,000 gross volume of business2 was
not applicable to Respondent because its retail sales
only amounted to $15,353.69 or approximately 1-1/2
percent of its total sales and that the indirect outflow
standard of $50,0003 was not met because Meyer
Construction Corp. and New Orleans Homes, Inc.,
do not meet the Board's jurisdictional standards and
therefore Respondent's sales to those companies are
not to be counted in determining whether Respon-
dent meets the $50,000 indirect outflow standard.4
We disagree with both these fmdings of the
Administrative Law Judge. The Board has deter-
mined that where a single-integrated enterprise is
engaged in both retail and nonretail operations, it
will assert jurisdiction where the employer's opera-
tions meet either the retail or nonretail standard,
provided that either aspect is not de minimis.5
Respondent's retail sales amounted to approximately
$15,000, which is more than de minimis under any
standard.6 As Respondent does a gross volume of
business exceeding $500,000, we find that it meets the
Board's retail jurisdictional standard.
Moreover, we also find that Respondent meets the
$50,000 indirect outflow standard. The Administra-
tive Law Judge concluded that this standard was not
met because sales to Meyer Construction Corp. and
New Orleans Homes could not be counted in
deciding whether the $50,000 indirect outflow stand-
ard was complied with upon the ground that these
two companies do not meet the Board's jurisdictional
requirements. We do not agree, at least as to the
former. Meyer Construction is engaged in building
condominiums, homes, and shopping centers. We
take official notice of the fact that condominiums
Newmar, who was out of the country at the time of the hearing. According
to Kaplan, he and Berman have associated real estate interests, their offices
are located in the same building, and they customarily care for the other's
business interests in his absence. It was in this way that Newmar's records
came under Kaplan's custody and control and Kaplan was able to testify 'as
to Newmar's business Kaplan's testimony as to Newmar's business was
sufficiently probative to justify the Administrative Law Judge's findings as
to the business of Newmar.
5 Joseph Crowder, et al, d/b/a Indiana Bottled Gas Company, 128 NLRB
1441 (1960), Man Products, Inc., 128 NLRB 546 (1960).
6 Cf. Man Products, Inc, supra
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and homes are ordinarily constructed for sale and
use as residences. For jurisdictional purposes, an
employer engaged in the construction and sale of
residential homes to users is considered as being
engaged in a retail enterprise.7 Although the con-
struction of shopping centers is nonretail, the Board's
practice as pointed out above in cases involving
integrated enterprises having both retail and nonre-
tail aspects is to assert jurisdiction if the operations
meet either the retail or nonretail jurisdictional
standards.8 Meyer Construction Corp.'s gross vol-
ume of sales during the relevant period exceeded
$50,000 and its purchases outside the State of Florida
exceeded $15,000. Meyer Construction Corp. there-
fore is engaged in interstate commerce and its gross
volume of sales meets the Board's retail jurisdictional
standard. Accordingly, Respondent's sales to Meyer
are to be counted in determining whether Respon-
dent meets the $50,000 outflow standard.
As found by the Administrative Law Judge,
Respondent's sales to Walker, Deerfield, and New-
mar amounted to a total of $43,809.38. Adding
Respondent's sales to Meyer in the amount of
$6,696.28 to this sum gives a total of $50,505.66,
which is sufficient to justify asserting jurisdiction
under the indirect outflow standard.9
Accordingly, we find, contrary to the Administra-
tive Law Judge, that the Respondent is engaged in
commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction herein. We shall therefore remand the
case to the Administrative Law Judge for the
preparation and issuance of a Supplemental Decision
on the merits.
ORDER
It is hereby ordered that the case be, and it hereby
is, remanded to the Administrative Law Judge for the
preparation and issuance of a Supplemental Decision
on the merits.
T Harry Tancred, and Lionel Richman, 137 NLRB 743 (1962); United
Slate, Tile, etc., Local 57 (Atlas Roofing Co Inc), 131 NLRB 1267 (1961).
8 Indiana Bottled Gas Company, supra Man Products, Inc, supra
9 In view of our finding that the sales to Meyer Construction Corp when
added to those of walker, Deerfield, and Newmar are sufficient to justify
asserting jurisdiction, we find it unnecessary to decide whether Respon-
dent's sales to New Orleans Homes should also be counted in deterrmmng
whether the indirect outflow standard is met.
DECISION
STATEMENT OF THE CASE
JOHN P. voN ROHR, Administrative Law Judge: Upon a
charge filed on November 8, 1974, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 12 (Tampa, Florida), issued a
complaint on February, 13, 1975, against De Marco
Concrete Block Co., herein called the Respondent or the
Company, alleging that it had engaged in certain unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended,
herein called the Act. The Respondent filed an answer
denying the commerce allegations in the complaint and
also denying the unlawful conduct alleged therein.
Pursuant to notice, a hearing was- held in Fort Lauder-
dale, Florida, on April 14-18 and 21, 1975.Al1 parties were
represented by counsel and were afforded full opportunity
to participate in the hearing. Briefs were received from the
General Counsel and the Respondent on June 9, 1975, and
they have been carefully considered. Upon the entire
record in this case, and from my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE JURISDICTIONAL ISSUE
De Marco Concrete Block Co., herein called the
Respondent or the Company, is a Florida corporation with
its plant and place of business located in Pompano Beach,
Florida, where it is engaged in the manufacture and sale of
concrete block. Respondent contests the jurisdiction of the
Board and the matter was fully litigated.
Preliminarily, it is to be noted that the General Counsel
presented commerce data for two periods; namely, (a)
from November 1, 1,973, through October 31, 1974, this
period being approximately the last 12 months prior to the
filing of the charge herein (which was filed on November 8,
1974), and (b) the calendar year 1974. The Respondent
having been in business for approximately 20 years, I
believe the so-called precharge period to be representative
of the Company's business. Accordingly, I deem it
unnecessary to set forth the commerce data for both
periods and shall set forth below the data applicable to the
precharge period only.'
During the representative period Respondent had gross
revenues of $995, 367.58, of which $15,353.69 were in retail
sales. During the same period, Respondent purchased
goods and materials directly from points located outside
the State of Florida in the amount of $20,595.35.2
Since Respondent's retail sales thus constitute only 1-1/2
percent of its total business, it is clear, and I find, that
Respondent is not a retail enterprise and that hence it does
not fall within the Board's $500,000 rule applicable to retail
establishments.3 Neither does Respondent meet the
$50,000 direct outflow or inflow test applicable to nonretail
1 In any event , the commerce data for the calendar year 1974 is
substantially the same as that in the precharge period utilized herein.
2 Included in this amount is $10,164 43 which went toward nonrecurring
purchases of capital goods, viz, parts for installation of an automated
concrete block machine.
3 Carolina Supplies and Cement Co, 122 NLRB 88 (1958)
DE MARCO CONCRETE BLOCK COMPANY 343
enterprises. It therefore must be determined whether
Respondent meets the Board's indirect outflow standard,
namely, whether Respondent's sales were in excess of
$50,000 to employers shown to have been engaged in
interstate commerce under the Board's jurisdictional
requirements.4 I turn to, this evidence now.
Lee A. Walker Co., located in Palm Beach County,
Florida, is engaged in the, nonretail construction of
condominiums, municipality buildings, and church build-
ings . During the representative period Walker, purchased
goods and materials from outside- the State of Florida
valued in excess of $50,000. By virtue of this fact, I find
that Walker is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. During this period,
Respondent sold products to Walker valued at $22,386.67.
Deerfield Builder Supplies, located in Deerfield Beach,
Florida,-is engaged in the retail sales of building materials.
During the representative period it had gross revenues in
excess of $500,000 and purchased products,- shipped
directly to it, from points outside the State of Florida,
valued at $5,378.05. I find that Respondent meets the
Board's jurisdictional requirements for retail establish-
ments and that it is engaged in commerce within the
meaning of the Act. During this period Respondent sold
products to Deerfield valued at $1,870.90.
Newmar Building Corp. is a Florida employers engaged
in the construction and retail sales of family homes and
apartments . Edward Kaplan, the brother-in-law of a Mr.
Berman , the latter the owner of Newmar, testified that
Berman was out of the country at the time of the hearing
and that he was appearing in response to a General
Counsel subpena served on Berman. Although not an
officer of Newman, Kaplan testified that he and his
brother jointly own certain real estate investment proper-
ties, that he is "with the real estate business which has
allied interests with Newmar," that his and his brother's
offices are located in the same building, and that "in the
absence of one or the other we try to cover the other's
responsibilities." Concerning the commerce data as to
Newmar, Kaplan testified, without objection, that during
the representative period Newmar 's gross revenues were in
excess of $500,000. Turning to the evidence with respect to
Newmar's out-of-state direct inflow, John Arnold, New-
mar's general field superintendent, produced bills of lading
which he personally procured out of sealed piggyback
trailers when they arrived at a Newmar jobsite known as
Royal Park Gardens Apartment. Kaplan, on the other
hand, produced from company record files, to which he
indisputably had access, invoices showing payments made
for the goods represented on the corresponding bills of
lading produced by Arnold.5 These documents, which I
received in evidence, reflect that various appliances,
principally refrigerators, dishwashers, and ranges, were
shipped to the jobsite from General Electric in Atlanta,
Georgia. The total value of the shipments thus made to
Newmar during the representative period was in the sum of
4 Siemons Mailing Service, 122 NLRB 81 (1958).
5 The record does not reflect the name of the city where this employer is
located. However, it is undisputed that Newmar's headquarters and
facilities are located in the State of Florida
5 1 find no merit to Respondent 's contention that the bills of lading and
corresponding invoices constitute hearsay . On the basis of the above
$28,687.36. Upon the 'basis of the foregoing, I find that
Newmar is engaged in commerce within the meaning of the
Act. During the representative period Respondent sold
products to Newmar valued at-$19,551.18.
Meyer Construction Company, located in Coral Springs,
Florida, is a general contractor engaged in the construction
of condominiums, houses, and shopping centers. Inasmuch
as there is no showing that Meyer has engaged in any retail
operations, it is clear that this employer must be viewed as
a nonretail enterprise and is thus subject to the Board's
$50,000 out-of-state, direct inflow or direct outflow stand-
ard. In this regard the evidence establishes that during the
relevant period Meyer Construction Company received
goods and materials from outside the State of Florida
valued at $15,819.17, with no direct outflow. This not
meeting the Board's jurisdictional standards' for a nonretail
employer, I find that Meyer Construction Company is not
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. -
To recapitulate, during the relevant period the combined
sales of Respondent to Walker, Deerfield, and Newmar, all
of whom I have found to be engaged in commerce within
the meaning of the Act, come to a total of $43,809.38. I
now arrive at the crucial point involved in the jurisdictional
issue involved herein, namely, whether New Orleans
Homes, Inc., an employer to whom Respondent sold
products valued at $23,187.15 during the relevant period, is
an employer engaged in commerce within the meaning of
the Act; for it is a resolution of this question which
necessarily must determine whether Respondent meets the
Board's indirect outflow standard.
New Orleans Homes, located in Fort Lauderdale,
Florida, is engaged in the construction and retail sales of
single-unit residential houses valued in the range of
$75,000. During the relevant period this Employer had
gross revenues in excess of $500,000. Its direct inflow of
goods and materials during this period was in the amount
of $694.93. There is no evidence in the record of any
indirect inflow.6
Both the courts and the Board have held that an
enterprise "affects commerce" within the meaning of the
Act if the effect of its operations on commerce is more than
de minimis. The Respondent contends that New Orleans'
out-of-state purchases of $694.93 are "patently de minimis."
It is my view that this contention has merit. Thus, my
examination of the cases reveals that, at the lowest end of
the scale, the Board has held not to be de minimis out-of-
state purchases in the following amounts: N.LRB. v.
Inglewood Park Cemetery Association, 355 F.2d 448 (C.A. 9,
1966) ($3,000 not de minimis); N.L.R.B. v. Aurora City
Lines, Inc., 229 F.2d 229, 231 (C.A. 7, 1962) ($2,000 not de
minimis); Ashville-Whitney Nursing Home, 208 NLRB 341
(1974) ($1,900 not de minimis); Marty Levitt, 171 NLRB
739 (1968) ($1,500 not de minimis); and Fairview Nursing
Home, 202 NLRB 318 (1973) ($1,440 not de minimis). In
the instant case not only are New Orleans out-of-state
testimony, I find them to have been properly identified and to constitute
competent evidence.
6 Indeed, Mane Bryner, the office manager and bookkeeper of New
Orleans, testified that this Company's invoices do not reflect that any of the
items purchases from its suppliers were even shipped in from out-of-state.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases well below $1,000, but to find the amount in
question not to be de minimis I would be required to dip
somewhat more than 100 percent below the least amount
which the Board in the above-cited cases has found not to
be de minimis . While it has been stated that de minimis "is
not capable of solution by application of precise mathe-
matical formula," 7 at some point, it would seem, some
manner of a line must-be drawn. Without attempting to
define any such line, but in view of the small amount here
involved, I am of the opinion, and find, that the amount of
out-of-state purchases by New Orleans in the sum of
$694.93 is de minimis.s Accordingly, I find that New
7 N LRB.`v. Inglewood Park Cemetery Association, supra
8 I am mindful of the language of the Court in N.L R.B v. Suburban
Lumber Co, 621 F.2d 829 (C.A. 3, 1941) to the effect that de mrmm,s has
been taken to be "trifles - matters of few dollars or less." However, I would
not think the words "few dollars or less," particularly in this day of
inflation,' are to be taken literally. Otherwise, an employer meeting the retail
standard of $500,000 could meet the Board'slunsdicttonal requirement on
the showing of a single $5 item purchase from out-of-state, Indeed, in
Suburban Lumber, the amount of interstate purchases by the employer, to
Orleans Homes does not meet the Board's jurisdictional
requirements .9 It therefore follows,, and I further find, that
Respondent, under present Board standards, is not
engaged in commerce within the meaning of the Act.19
II. THE LABOR ORGANIZATION INVOLVED
Local #675, International Union of Operating Engi-
neers is a labor organization within the meaning of Section
2(5) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
which the quoted language had reference, was in excess ,of $150,000
9 In response to questioning by the -General Counsel, Bryner gave
generalized testimony to the effect that some purchasers of Respondent's
homes are o`ut-of state visitors and that on, occasion New Orleans takes
deposits and payments drawn on out-of-state banks. However, this
testimony was not sufficiently developed to warrant any meaningful finding
as to the extent of this activity.
10 I have considered, but reject as without merit, Respondent's other
arguments for not assertingjunsdiction herein