Labor Relations Commision

National Labor Relations Board - Board DecisionsAug 29, 1962

138 N.L.R.B. 381 (N.L.R.B. 1962)

LABOR RELATIONS COMMISSION OF MASSACHUSETTS 381 Labor Relations Commission , Commonwealth- of Massachusetts and New England Forestry Service Inc. and International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, Local 841. Case No. AO-40. August 29, 1962 ADVISORY OPINION This is a Petition filed by the Labor Relations Commission, Com- monwealth of Massachusetts, herein called State Commission, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. On July 19, 1962, the New England Forestry Service Inc., herein called the Em- ployer, filed a "Motion for Leave To File Response to Petition for Advisory Opinion," together with the response. Thereafter, on July 23, 1962, Bernard L. Alpert, Regional Director of the First Region of the National Labor Relations Board, herein called the Regional Di- rector, filed a "Motion To Intervene" setting forth jurisdictional facts developed in his investigation of unfair labor practice charges filed against the Employer by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 841, herein called the Teamsters, in Case No. 1-CA-3559. The motions of the Em- ployer and of the Regional Director are hereby granted. In pertinent part, the petition, the response, and intervention show as follows: 1. There has been pending before the State Commission since Sep- tember 21, 1961, the "Employer's Motion To Vacate Decision and Certification of Representatives" issued after proceedings were held upon the Teamsters' petition for certification as bargaining representa- tive of certain employees of the Employer in Case No. CR-2736. 2. At the hearings in Case No. CR-2736, held in October and Decem- ber 1960, the Employer moved to dismiss the Teamsters' petition for certification on the ground that this Board, under its current standard, would assert jurisdiction over the Employer and that, therefore, the State Commission was without jurisdiction in the proceedings. In support of its motion, the Employer introduced testimony showing that during the calender year 1959, its gross annual revenue was $202,000 of which approximately $145,000 was derived from services performed for utility companies. 3. However, according to the State Commission, "no evidence was introduced that the public utility companies were engaged in or did any business which would affect commerce. In fact, the public utility companies were local in character. The services provided by [the Employer] were also local in character." Under these circumstances and because the gross annual volume of business the Employer derived from the public utilities was less than $250,000, the State Commission 138 NLRB No. 49. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asserted jurisdiction over the Employer and directed an election which, after the hearings on objections and challenges, resulted in the certi- fication of the Teamsters as bargaining representative on April 24, 1961. 4. When the Employer, upon request by the certified Teamsters, refused to bargain on the ground that the State Commission was with- out jurisdiction to issue the certification, the Teamsters, in order to clarify the jurisdictional issue involved, filed with this Board on Au- gust 23, 1961, an unfair labor practice charge in Case No. 1-CA-3559, alleging an illegal refusal to bargain by the Employer. 5. By letter dated September 26, 1961, the Regional Director, after investigation, advised the Teamsters that he was refusing to issue a complaint in Case No. 1-CA-3559 because there was insufficient evi- dence of violation to warrant such issuance. 6. The Regional Director's investigation in Case No. 1-CA-3559 showed that the Employer is engaged in tree surgery and landscaping in Reading, Massachusetts, and employs approximately 17 employees. During the calender year 1959, the Employer performed $170,000 worth of services, in and outside of Massachusetts, for the following public utilities, each of which had annual gross receipts in excess of $250,000 and each of which was itself engaged in interstate commerce : Suburban Electric Co------------------------------- $45,000 Lowell Electric Light Co. (presently Merrimac-Essex Electric Co.)------------------------------------- 40,000 Lawrence Electric Light Co. (presently Merrimac-Essex Electric Co.)------------------------------------- 30,000 Worcester County Electric Co. (presently Massachusetts Electric Co.).------------------------------------ 20,000 Exeter & Hampton Electric Co----------------------- 15,000 Boston Edison Company---------------------------- 20,000 In addition, during 1959, the Employer did an undisclosed amount of business with a New England Telephone and Telegraph Company. All of the above public utilities are located in Massachusetts except Exeter & Hampton Electric Co., which is located in New Hampshire, and all, except Exeter & Hampton and Boston Edison Company, are part of the New England Electric System which covers the six New England States. The Board has previously asserted jurisdic- tion over the Boston Edison Company. 7. Attached to the Employer's response is a chart showing that the Employer rendered services to the aforementioned public utilities in the amount of $181,495.86 for calender year 1959; $173,500.36 for calender year 1960, and $181,811.60 for calender year 1961. Such amounts included services rendered by the Employer to New England Telephone and Telegraph Company in the amounts of $10,037.29 for 1959, $6,175.56 for 1960, and $7,354.11 for 1961. UNITED STORES OF AMERICA AND COLLINS MART, INC. 383 8. The Employer contends that the State Commission is without jurisdiction over the Employer because this Board has jurisdiction and will exercise jurisdiction over the Employer. On the basis of the above, the Board is of the opinion that: 1. The Employer is engaged in a nonretail business of tree surgery and landscaping in Reading, Massachusetts. 2. During each of the calender years 1959, 1960, and 1961, the Em- ployer has rendered services in excess of $50,000 to the public utilities hereinabove named, each of which does an annual gross business in excess of $250,000. 3. The current Board standard for the assertion of jurisdiction over nonretail enterprises within its statutory jurisdiction requires an an- nual minimum of $50,000 out-of-State inflow or outflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81, 85. "Indirect out- flow refers to ... services to users meeting any of the Board's juris- dictional standards except the indirect outflow or indirect inflow standard." i The current standard for the assertion of jurisdiction over public utilities requires an annual minimum gross volume of busi- ness of at least $250,000 2 and each of the public utilities involved here- in meet this Board's standard. As the Employer's services to these public utilities constitute "indirect outflow" as the term is defined by the Board in Siemons and as such services are in excess of $50,000 an- nually, the Employer's operations meet the current Siemons standard for the assertion of jurisdiction over nonretail enterprises. Accordingly, the parties are therefore advised, under' Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the facts here present, this Board would assert jurisdiction over the Employer's operations with respect to labor disputes cognizable under Sections 8, 9, and 10 of the Act. 1 Siemons Mailing Service, supra 2 Sioux Valley Empire Electric Association, 122 NLRB 92. United Stores of America and Collins Mart, Inc.' and Local 534, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case No. 14-RC--4210. August 29, 1962 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Victor I. Smedstad, hearing 1 At the hearing, the petition, which named United Stores of America as the Employer, was amended at the Petitioner's request to substitute Collins Mart, Inc , as the Employer Both named Employers appeared at and participated in the hearing On the basis of the findings made below, we have amended the caption to show the names of both as the, Joint Employers of the employees here involved. 138 NLRB No. 45.