IBEW, Local 257

National Labor Relations Board - Board Decisions

Jun 5, 1969

176 N.L.R.B. 424 (N.L.R.B. 1969)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No . 257 and Glenn L.
Whitman and Robert R. Jolley, d/b/a Osage Neon
Plastics . Case AO- 114
June 5, 1969
ADVISORY OPINION
This is a petition filed on November 5, 1968, by
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 257, herein called the
Union , for an Advisory Opinion pursuant to
Sections 102 . 98 and 102.99 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended . On November 14, 1968 , Glenn L.
Whitman and Robert R. Jolley , d/b/a Osage Neon
Plastics , herein called the Employer , filed a response
to the petition . On December 2. 1968 , the Union
filed a brief in support of the petition.
In pertinent part , the petition, the response and
the brief allege as follows:
1. There is presently pending in the Circuit Court
of Cole County, Missouri , herein called the State
Court, an injunction proceeding (Cause No . 24029)
filed by the Employer seeking to enjoin the Union
and certain named representatives from picketing
and causing work stoppages at the construction site
at South 10 Mile Drive and U. S. Highway 50
West , Cole County, Missouri , where Mr. and Mrs.
Eugene J. Knipp had contracted for the construction
of a building on which the Employer and other
contractors were working . The new building was
leased by the Knipps to Knipp Motors Inc.,' herein
called Knipp Motors , an Oldsmobile and Cadillac
dealer . The injunction petition alleged that the intent
and purpose of the Union ' s picketing of the
construction site was to "establish a secondary
boycott."
2. The Employer was engaged in erecting and
installing on the building at the construction site
some panel signs which belonged to Knipp Motors.
The signs had been removed from the auto dealer's
old premises , located at 611 West Dunklin, Cole
County , Missouri . In furtherance of its dispute with
the Employer , the Union picketed for a few hours
while the signs were being removed . Also picketing
occured whenever the Employer's vehicles and/or
employees approached or attempted to enter upon
the construction site in order to install and erect the
signs of Knipp Motors . The picketing continued
until October 11, 1968, when the State Court
entered an ex parte order enjoining the picketing.
Subsequently , it denied the Union ' s October 18,
1968, motion to dismiss the temporary restraining
order . Thereafter, on November I, 1968, the Kansas
City State Court of Appeals, State of Missouri,
denied the Union's petition for a Writ of
Prohibition.
3. The Employer, a partnership with its principal
place of business at 1405 Indiana Street , Columbia,
Missouri , is generally engaged in the sign business in
central Missouri , and employs 37 employees.
4. Knipp Motors is a corporation engaged in the
retail sale , servicing and leasing of new Oldsmobiles
and Cadillacs and used automobiles . Its old place of
business was located at 611 West Dunklin Street,
Cole County, Missouri , and its current place of
business is in the new building constructed for the
Knipps and leased by them to the Knipp Motors,
located at South 10 Mile Drive and U. S. Highway
50 West, Cole County, State of Missouri . During
the fiscal year ending July 31, 1968, the gross sales
of Knipp Motors , exceeded $ 1,000,000.
5. On October 4, 1968 , the Employer filed a
charge in Case 17-CC-353 with the Board's Region
17 Office, alleging , inter alia, that the Union's
picketing induced and encouraged individuals
employed by Knipp Motors and other persons= to
strike with the object of causing such persons to
cease business with the Employer , thereby violating
Section 8 ( b)(4)(B) of the Act. Pursuant to the
Employer ' s request to withdraw the charge, the
Regional Director of Region 17 on October 10,
approved the withdrawal . Subsequently , on October
15, he advised the Union that, in approving the
withdrawal , he had made no determination as to the
Board's jurisdiction over the Employer or the
subject matter of the charge.
6. No representation or unfair labor practice
proceedings concerning this labor dispute are now
pending before the Board.
7. The State Court has made no findings
concerning commerce data relevant to the Board's
jurisdiction.
8. In urging that the Board issue an Advisory
Opinion that it would assert jurisdiction herein, the
Union argues that : ( 1) its picketing activity arguably
constituted conduct either protected by the Act or
prohibited by Section 8(b)(4) of the Act; (2) the
commerce data of Knipp Motors, a secondary
employer , whose two premises were picketed by the
Union must be considered in determining the
jurisdictional question ; and (3 ) since the Board
would assert jurisdiction over Knipp Motors whose
operations were affected by the picketing , the Board
should advise that it would also assert jurisdiction
herein.
9. On the other hand , the Employer contends that
it is not engaged in interstate commerce and does
not come within the Board ' s jurisdiction. It
concedes , in effect, that Knipp Motors has an
annual volume of retail sales in excess of $1 million.
It argues, however , that Knipp Motors is "a
separate entity and a complete stranger to [the
Employer] and there is no connection whatsoever,
let alone of that of employer , primary or
' Eugene J. Knipp is the President of Knipp Motors Inc.
176 NLRB No. 56
'Stokes Electric Co., Roy Sheperle Construction Co., and Case Painting
and Decorating Co.
IBEW, LOCAL 257
secondary," and that therefore Knipp Motors'
operations should not afford a basis for the
assertion of jurisdiction herein.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is a nonretail enterprise engaged
in the sign business in Columbia, Missouri. As
specific commerce data pertaining to the Employer's
operations has not been submitted, we are unable to
make a determination as to the Board's jurisdiction
over the Employer. We, therefore, shall assume for
the purpose of this Advisory Opinion that the
Employer's operations do not meet the Board's
standards for the assertion of jurisdiction over it.
2. Knipp Motors is a retail enterprise which has
been engaged in the sale, servicing and leasing of
new Oldsmobiles and Cadillacs and used
automobiles at its old premises, 611 West Dunklin
Street, Cole County, Missouri, and at its new
premises, South 10 Mile Drive and U. S. Highway
50 West, Cole County, Missouri.
3. The Board's current standard for asserting
jurisdiction over a retail enterprise falling within its
legal and statutory jurisdiction is a gross annual
volume of business of at least $500,000.' Knipp
Motors' annual gross volume of business exceeds $1
million and thus satisfies the Board's monetary
standard for retail enterprises. Although normally
some proof must be made of legal and statutory
jurisdiction, it is not unreasonable to assume, for
purposes of this Advisory Opinion, that, in view of
Knipp Motors' gross annual volume of business of
more than $1 million in sales, servicing and leasing
of automobiles, particularly new Oldsmobiles and
Cadillacs, most of which presumably were shipped
from outside of Missouri, the Board's legal and
statutory jurisdiction over Knipp Motors does in
'Carolina Supplies and Cement Co., 122 NLRB 88, 89.
425
fact exist and can be established. Accordingly, the
Board would assert jurisdiction over the operations
of Knipp Motors.
4. In cases involving secondary activity by a union
which may be violative of Section 8(b)(4) of the Act
where, as here assumed, the employer's operations
do not meet the Board's jurisdictional standards, the
Board will take into consideration for jurisdictional
purposes not only the operations of the primary
employer, but also the entire operations of the
secondary employers at the locations affected by the
alleged conduct involved.' The Union's picketing of
the Employer at Knipp Motors' old and new
premises was secondary activity which affected the
entire retail operations of secondary employer Knipp
Motors, over whose operations, the Board as
indicated above, would assert jurisdiction. In these
circumstances and in accord with established Board
precedent the Board would assert jurisdiction over
the primary Employer and Knipp Motors, the
secondary employer affected by the Union's activity
whether or not such activity is, in fact, violative of
Section 8(b)(4)of the Act.
Accordingly, the parties are therefore advised,
under Section 102.103 of the Board's Rules and
Regulations, Series 8, as amended, that on the
allegations here present, the commerce operations of
the primary employer and those of secondary
employer, Knipp Motors at its old and new
premises, the locations affected by the Union's
secondary conduct, are such that the Board would
assert jurisdiction with respect to labor disputes
cognizable under Sections 8 or 10 of the Act."
'George F Paravieini, Individually and trading as D.L.W.
Transportation Company , 145 NLRB 212.
'Ibid. See also Madison Budding do Construction Trades Council,
Wrllham Arnold. at al. (H & K Lathing Company ), 134 NLRB 517.
'ln view of our determination herein , it has been unnecessary to consider
the commerce data of the other neutral employers involved in the Union's
picketing activity at the construction site