Michael Pipitone

National Labor Relations Board - Board Decisions

Mar 13, 1970

181 N.L.R.B. 678 (N.L.R.B. 1970)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael Pipitone and Local 1072 , International
Brotherhood of Electrical Workers , AFL-CIO, and
the Building and Construction Trades Council of
Monterey County. Case AO-120
March 13, 1970
ADVISORY OPINION
This is a petition filed on January 12, 1970, by
Michael Pipitone, herein called the Petitioner, for an
Advisory Opinion in conformity with Sections
102.98 and 102.99 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended.
On January 14, 1970, Local 1072, International
Brotherhood of Electrical Workers, AFL-CIO, and
the Building and Construction Trades Council of
Monterey County, herein called the Union and
Council respectively, filed a response to petition for
an Advisory Opinion. Thereafter, by letter dated
January 15, 1970, the Board requested the Petitioner
for commerce data with respect to any other
subcontractors involved in construction projects
where he worked, as well as for the commerce
information furnished in the complaint for
injunction and damages in the State Court action
referred to hereinafter. In answer to this request, the
Petitioner filed an amended petition for an Advisory
Opinion. Although served with a copy of this
amended petition, the Union and Council filed no
additional response.
In pertinent part, the petition, response and
amended petition allege as follows:
1. There is pending in the Superior Court of the
State of California, for the County of Monterey,
herein called the State Court, an injunction and
damage action (Docket No. 67492) filed by the
Petitioner against the Union, other labor
organizations, and their agents and employees,
seeking, inter alia, to enjoin the picketing by the
defendants of various construction jobsites where the
Petitioner is performing electrical work and where,
as alleged in the complaint, "third parties and other
tradesmen refused to cross picket lines . . . to make
deliveries and to perform work." The complaint also
alleges that the purpose of the picketing is to
compel the Petitioner to recognize the Union as the
bargaining representative of his employees rather
than another labor organization which he is
currently recognizing.
2. The Petitioner is an electrical contractor
engaged in making electrical installations in the
construction of residences and small commercial
buildings in the vicinity of Salinas and Monterey,
California. During the 12 months prior to
November 5, 1969, the date the Petitioner filed a
charge with the Board in Case 20-CC-945, discussed
hereinafter, the Petitioner's gross income was only
$24,000. During this period, he purchased all his
supplies locally from two suppliers. From the first,
he purchased $6,000 worth of supplies of which no
more than $1,000 originated from outside of
California; while the amount of the purchases from
the second supplier is not revealed, in any event, a
majority of such supplies purchased did not
originate from outside of California. With respect to
the construction jobs in which the Petitioner was
involved, the inflow of materials thereto from
outside of California was substantially less than
$50,000.
3. On November 25, 1969, the Petitioner
withdrew the charge in Case 20-CC-945 as a result
of a letter from the Board's Region 20 advising that
if the charge was not withdrawn, a recommendation
would be made to the Regional Director to dismiss
the proceeding for lack of jurisdiction. In the State
Court proceeding, he alleges that "the Board has
refused to assert jurisdiction on the grounds that the
[Petitioner's] business does not affect commerce."
The Petitioner further alleges that the charge in
Case 20-CC-945 embraced the same issues as those
involved in the State Court action.
4. The Union and the Council contend that the
factual allegations contained in the State Court
action and in the charge in Case 20-CC-945 might
subject the Petitioner to the Board's jurisdiction
based upon commerce data of the secondary
employers at the common jobsites. However, neither
submitted commerce data pertaining to these
secondary employers. Further, the Union and
Council contend that the information alleged in the
petition for Advisory Opinion is insufficient to
render an opinion on the jurisdictional issue herein.
We disagree with this latter contention.
5. The State Court has made no findings of fact
concerning the aforementioned commerce data.
6. No unfair labor practice proceeding is presently
pending before the Board involving the labor dispute
herein.
7. Although served with copies of the petition and
amended petition, no response as provided by the
Board's Rules and Regulations has been filed by any
of the parties except as herein above set forth.
On the basis of the above, the Board is of the
opinion that:
1. The Petitioner is a nonretail enterprise engaged
in making electrical installations in the construction
of residences and small commercial buildings in the
vicinity of Salinas and Monterey, California.
2. The current standard for the assertion of
jurisdiction over nonretail 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 81, 85.) During the 12-month period prior to
November 5, 1969, when the charge in Case
20-CC-945 was filed, the Petitioner's gross volume
of business was approximately $24,000. All his
purchases were made locally from two local
181 NLRB No. 102
MICHAEL PIPITONE 679
suppliers.' A relatively small amount of supplies
originated from outside of California and this
constituted indirect inflow to him. However, in view
of the Petitioner's small gross volume of business, it
would clearly appear that his operations would not
meet the Board's monetary standard for the exercise
of jurisdiction over nonretail enterprises.
3. In cases involving secondary activity by a union
which may be a violation of Section 8(b)(4) of the
Act, where, as here, the operations of the Petitioner,
the primary employer, may not meet the Board's
jurisdictional standards, the Board, in making a
jurisdictional determination, will take into
consideration not only the operations of the primary
employer but also the entire operations of the
secondary employers at the location affected by the
alleged conduct involved. (See Osage Neon Plastics
176 NLRB No. 56; Rogers Lumber Company 157
NLRB 377 ) However, the Petitioner alleges that
the inflow of materials from outside of California to
the jobsites where the Petitioner was involved was
substantially less than $50,000. Further, the Union
and the Council failed to supply any specific
commerce information pertaining to the operations
of the secondary employers. On the basis of the
foregoing, particularly since the Petitioner appears
to be a small enterprise, it is apparent that the
annual purchases of goods originating out-of-State
by the Petitioner and the secondary employers at the
jobsites affected by the Union picketing are less
than $50,000. Accordingly, there is no warrant for
the assertion of jurisdiction herein. (See Siemons
Mailing Service, supra, Osage Neon Plastics, supra,
Rogers Lumber Company, supra.)
Accordingly, the parties are advised, under
Section 102.103 of the Board's Rules and
Regulations, Series 8, as amended, that on the
allegations made, the Board would not assert
jurisdiction herein.