Local 229, Int'l Brotherhood Electrical Workers

National Labor Relations Board - Board Decisions

Aug 23, 1963

144 N.L.R.B. 202 (N.L.R.B. 1963)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 229, International Brotherhood of Electrical Workers,
AFL-CIO and Northeastern School District and Northeastern
York County School Building Authority and A. B. Seifert &
Son, Inc. and John E . Fullerton , Inc. Case No. A 0-60. August
23, 1963
ADVISORY OPINION
This is a petition filed by Local 229 of the International Brotherhood
of Electrical Workers, AFL-CIO, herein called the Petitioner, for an
Advisory Opinion in conformity with Section 102.98 and 102.99 of the
Board's Rules and Regulations, Series 8, as amended. Thereafter, on
August 1, 1963, John E. Fullerton, Inc., herein called the Employer or
primary employer, filed an answer and new matter in which it re-
quested a hearing. For the reasons herein set forth, the request for a
hearing is denied.
In pertinent part, the petition and answer allege as follows :
1. The Petitioner is the defendant in an injunction proceeding in
the Court of Common Pleas of York County, Pennsylvania, docket
No. 7 of the August term, 1963, filed by Northeastern School District
and Northeastern York County School Building Authority, in which
after hearing the court has ruled, on July 18, 1963, that a preliminary
injunction is proper, restraining the Petitioner from picketing the
site of construction of a schoolbuilding.
2. The complaint in the injunction proceeding alleges that the pur-
pose of the picketing, which began June 17,1963, is to force the primary
employer, Fullerton, party to an electrical contract for the construc-
tion, to compel its employees to join the Petitioner, knowing that the
employees of the general contractor, A. B. Seifert & Son, Inc., a second-
ary employer, would refuse to cross the picket line, resulting in a
secondary boycott.
3. The Employer is an electrical contractor, located in Elizabeth-
town, Lancaster County, Pennsylvania. The picketed construction
site is in the Borough of Manchester, York County, Pennsylvania.
The general contract for the school construction, awarded to Seifert,
is for $569,835, and the Employer received an electrical contract
amounting to $68,300.
4. During its last fiscal year ending May 31, 1963, the Employer
admits that it had purchases totaling about $128,000, all made locally
within the Commonwealth of Pennsylvania. The Petitioner alleges
that the goods and materials purchased were "manufactured by such
concerns as General Electric Company, Westinghouse Electric Corpo-
ration, and other similar manufacturers"; but the Employer denies this
because it "is unaware of the exact manufacturer of all the items
procured by it." The Petitioner alleges, and the Employer denies,
144 NLRB No. 27.
LOCAL 229, INT'L BROTHERHOOD ELECTRICAL WORKERS 203
that it is inconceivable that of these purchases less than $50,000 worth
of supplies were shipped to the Employer, directly or indirectly, from
outside the Commonwealth of Pennsylvania.
5. The Petitioner alleges, and the Employer on information and
belief denies, that Seifert, the general contractor, has current contracts
for construction in excess of $1,500,000, and that during the calendar
year 1962, Seifert had total purchases of goods valued at slightly more
than $335,000, and let subcontracts totaling slightly more than
$832,000. The Petitioner alleges, but the Employer denies, that it is
inconceivable that during 1962 Seifert's total purchases consisted of
less than $50,000 worth of goods or supplies shipped to it, directly or
indirectly, from outside the Commonwealth of Pennsylvania.
6. Although no allegation is made that would form the basis of
apportioning purchases of secondary employers as direct or indirect
inflow to the school construction project in question, the court of
common pleas found that less than $25,000 of Seifert's purchases were
shown to be purchases made directly or indirectly from suppliers out-
side of Pennsylvania. In addition, the court concluded that work of
the contractors on the construction here involved does not affect inter-
state commerce.
7. There is no representation or unfair labor practice proceeding
concerning this labor dispute pending before the Board.
On the basis of the above, the Board is of the opinion that :
1. The Employer is an electrical contractor, engaged in electrical
construction work in York and Lancaster Counties, Pennsylvania, and
specifically in the construction of a schoolbuilding in York County.
2. The current Board standard for the assertion of jurisdiction over
nonretail 1 enterprises within its statutory jurisdiction requires an an-
nual minimum of $50,000 inflow or outflow across State lines, direct or
indirect. Siemons Mailing Service, 122 NLRB 81, 85.
3. As all the Employer's purchases during its last fiscal year were
made locally within Pennsylvania, it had no direct inflow. Nor on
the basis of total purchases of $128,000, and the type of materials
purchased taken together, may it be inferred whether the Employer
had an indirect inflow greater or less than $50,000. As there is no
showing that the Employer had a sufficient amount of out-of-State
inflow, its operations would not appear to meet the Siemons standards
for the assertion of jurisdiction over nonretail enterprises.
4. Since it has not been established that the operations of Fullerton,
the primary employer, meet the Board's jurisdictional standards and
since secondary activity is alleged, the entire operation of secondary
'Harry Tancredi, 137 NLRB 743 , cited by Petitioner , applied the retail standard to a
construction contractor whose business also included sale of residential homes to users.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers at the location affected by the alleged conduct are taken
into consideration for jurisdictional purposes, along with the opera-
tions of the primary employer.2 However, there is no indication in
this case of any effect upon the secondary employers' construction site
activities from Petitioner's picketing. Even as to secondary employer
Seifert, the general contractor, not more than $25,000 of its purchases
which constituted direct and indirect inflow to the site would have been
affected by the Petitioner's picketing. Thus, as to the primary em-
ployer there is no direct inflow and no showing as to the quantity of
indirect inflow; further, there is no indication as to the extent of the
effects, if any at all, from the Petitioner's picketing upon the con-
struction site operations of the secondary employers. Under these
circumstances, the Board is unable to make a meaningful jurisdictional
determination herein.
Accordingly, considering that the Board's Rules and Regulations,
Series 8, as amended, provide in Section 102.13 for a determination
based upon the petition, responses, and submission of briefs, and that
they do not provide for a hearing, as requested by Petitioner, to
develop further information, the parties are advised that, on the alle-
gations here present, the Board is unable to conclude whether or not
it would assert jurisdiction herein.
2 Matthews Construction Company, 142 NLRB 435; Weibel Dacavatang Company, 137
NLRB 1788 ; al. Golding and Jones, Inc, et al., and B B & C Developers , 139 NLRB 1370.
S. D. Warren Company and International Association of Machin-
ists, AFL-CIO; International Brotherhood of Electrical Work-
ers, AFL-CIO; United Brotherhood of Carpenters and Joiners
of America, AFL-CIO; International Brotherhood of Firemen
and Oilers , AFL-CIO, Joint-Petitioners . Case No. 1-RC-7215.
August 23, 1963
DECISION ON REVIEW
On April 4, 1963, the Regional Director for the First Region issued
a Decision and Direction of Election in the above-entitled proceeding.
Thereafter, the Employer, in accordance with Section 102.67 of the
Board's Rules and Regulations, Series 8, as amended, filed with the
Board a timely request for review of such Decision and Direction of
Election with a supporting brief on the ground that the unit found ap-
propriate by the Regional Director raised substantial questions of
law and policy. The Joint-Petitioners filed a brief in support of the
Regional Director's findings. The Board, by telegraphic Order dated
May 1, 1963, granted the request for review and stayed the election.
144 NLRB No. 25.