R.I. Incinerator, Inc.

National Labor Relations Board - Board Decisions

May 22, 1962

137 N.L.R.B. 213 (N.L.R.B. 1962)

R.I. INCINERATOR, INC. 213
R.I. Incinerator , Inc. and United Steelworkers of America, AFL-
CIO. Case No. A0-33. May 22, 1962
ADVISORY OPINION
This is a petition filed on February 8, 1962, by United Steelworkers
of America, AFL-CIO, herein called the Petitioner, for an advisory
opinion in conformity with Sections 102.98 and 102.99 of the Board's
Rules and Regulations, Series 8, as amended. Subsequently, on Febru-
ary 13, 1962, R.I. Incinerator, Inc., also known as R.I. Incinerator
Service, Inc., herein called the Employer, moved to dismiss, and filed
a reply to, the petition herein. On March 8 and 9, 1962, respectively,
the Employer and Petitioner submitted briefs in support of their posi-
tions. On March 9, 1962, Bernard L. Alpert, Regional Director for
the First Region of the National Labor Relations Board, herein called
the Regional Director, filed a motion to intervene, setting forth juris-
dictional facts developed in his investigation of unfair labor practice
charges filed by the Employer against the Petitioner in Case No.
1-CB-738. Thereafter, the Petitioner and Employer filed answers
and responses to the motion to intervene, as well as additional briefs
in support of their positions. On April 11, 1962, the Regional Director
submitted an amendment to his motion to intervene. The Regional
Director's motion to intervene, as amended, is hereby granted.
In pertinent part, the petition herein, the answers, responses, and
briefs of the parties, and the intervention of the Regional Director as
amended, show as follows :
1. There are presently pending before the Rhode Island State Labor
Relations Board, herein called the State Board, charges of unfair labor
practices against the Employer (Docket No. 811) and a petition
(Docket No. 1435) for an election among the Employer's employees,
both proceedings having been instituted by the Petitioner under the
Rhode Island Labor Relations Act.
2. There is also presently pending before the Regional Director an
unfair labor practice charge in Case No. 1-CB-738, filed by the Em-
ployer on December 8, 1961, alleging that the Petitioner violated
Section 8(b) (1) (A) of the National Labor Relations Act. On Janu-
ary 3, 1962, the Regional Director had declined to issue a complaint,
but by letter dated January 31, 1962, he advised the parties that he had
revoked his earlier action and was processing the matter further.
3. The Employer, a Rhode Island corporation with its place of
business in the city of Pawtucket, Rhode Island, has an exclusive 5-
year contract with the city to collect and dispose of the garbage and
rubbish for the city's residents but not for any business or industrial
establishment. Apart from the terms of the contract, copies of which
were submitted by the Regional Director and the Employer, there is
137 NLRB No. 32.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no special statutory regulation of the Employer, its operations, or its
charges for services. However, under the terms of the contract, the
manner and time of the Employer's performance is controlled by the
city in precise detail, and the Employer and its employees must con-
form to and obey all the rules and regulations of the city's public works
department.
4. For its services, the Employer annually receives from the city
$286,000. In addition, during the first year ending February 6, 1962,
the Employer received approximately $5,000 directly from certain
local commercial firms for disposing of their trash. During that year,
the Employer made the following indirect and direct purchases of
equipment, supplies, and services, all of which, with minor exception,
originated outside the State of Rhode Island.'
(a) Indirect purchases of approximately $78,000, except for item 4,
originated outside the State and were made from interstate companies
within the State :
(1) Gasoline, oil and parts to 12/1/61------------ $24, 847.00
Projected to 2/6/62--------------------- 5,000.00
29, 847.00
(2) Insurance premium------------------------- 17,063.79
(3 Cans and miscellaneous hardware------------ 1, 000.00
4 Telephone charges to 12/1/61---------------
(
634.75
5 Truck tire expense-------------------------- 3,525.54
(6) Reo trucks (5) (life-5 years) -------------- 26, 500.00
Total-------------------------------- 78,571.08
(b) Direct purchases of approximately $83,000 originated outside
the State and were made directly from companies outside the State :
(7) Bulldozers (2nd hand ; life-2 years) $22,000.00
(8) International trucks (4) (life-5 years) ------ 25,436.00
(9) Refuse truck bodies (8) (life-5 years) ------ 34,400.00
(10) Lining for incinerator (annual) ------------- 1, 500.00
Total-------------------------------- 83,336.00
5. The Petitioner contends, contrary to the Employer, that the
Board should determine not to assert jurisdiction over the Employer's
operations because (a) they are essentially local in character and do
not affect interstate commerce; (b) the Employer's operations do not
meet the Board's nonretail enterprise standard enunciated in Siemons
Mailing Service, 122 NLRB 81; (c) a substantial portion of the Em-
ployer's total direct and indirect purchases of heavy equipment, such
as bulldozers, trucks, and truck bodies, are nonrecurring capital
1 For purposes of the advisory opinion herein , the Board has utilized the figures sub-
mitted by the Regional Director which are smaller than those submitted by the Employer.
The difference in figures is not significant to the determination of the jurisdictional issue
herein.
R.I. INCINERATOR, INC. 215
expenditures; and (d) the Employer is not a public utility within
the meaning of the Board's jurisdictional standard set forth in Sioux
Valley Empire Electric Association, 122 NLRB 92.
6. The State Board has made no findings with respect to the Em-
ployer's business or with respect to its commerce data.
7. All the documents submitted by the Petitioner, Employer, and
Regional Director have been fully evaluated in rendering the advisory
opinion herein.
On the basis of the above, the Board is of the opinion that :
1. The Employer, a Rhode Island corporation with its place of
business at Pawtucket, Rhode Island, is engaged, under an exclusive
contract, in the collection and disposal of garbage and rubbish for the
city's residents and, in addition, is engaged in rendering similar serv-
ices to local commercial companies.
2. The Employer annually made indirect and direct purchases of
equipment, supplies, and services valued at approximately $160,000,
all of which, with minor exception, originated outside the State of
Rhode Island. Such a substantial movement of goods and services
.across State lines is not essentially local in character but establishes
that the Employer's operations affect commerce and come within the
Board's legal or statutory jurisdiction.
3. The Board's current standard for asserting jurisdiction over
nonretail enterprises within its legal or statutory jurisdiction is ap-
plicable to the Employer's operations. See Oakland Scavenger Com-
pany, 98 NLRB 1318. This standard, set forth in Siemons Mailing
Service, supra, requires an annual minimum of $50,000 inflow or out-
flow, direct or indirect. Excluding the telephone charges and the
indirect and direct purchases of heavy equipment, such as bulldozers,
trucks, and truck bodies, alleged to be nonrecurring capital expendi-
tures 2 but including the direct purchase of incinerator lining, the
Employer's annual purchases still exceeded $50,000 for the year ended
February 6, 1962. As such annual indirect and direct purchases of
equipment, supplies, and services, all of which originated outside the
State, constituted direct and indirect inflow as those terms are de-
scribed in Siemons Mailing Service, supra, the Employer's commerce
operations not only are within the Board's legal and statutory juris-
diction, but also meet its current nonretail standard for assertion of
jurisdiction. See Madison Building cQ Construction Trades Council
et al. (Wallace Hildebrandt, et al., d/b/a H cC K Lathing Co.), 134
NLRB 517; Chain Service Restaurant, Luncheonette & Soda Fountain
Employees, Local 11, AFL-CIO, 132 NLRB 960.
4. In view of the above, the Board finds it unnecessary to consider
the parties' contentions relating to the issues raised as to nonrecur-
2 Such purchases of heavy equipment totaled approximately $108,500 and included in-
,direct purchases of Reo trucks amounting to $20 , 500 and all direct purchases of bull-
dozers, trucks , and truck bodies amounting to nearly $82,000
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ring capital expenditures and as to the applicability of the public
utility standard herein.
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 presented, the commerce operations of the Em-
ployer are such that the Board would assert jurisdiction with respect
to labor disputes cognizable under Sections 8, 9, or 10 of the Act.
The Joclin Manufacturing Company and United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO. Case No.
1-CA-3656. May 23, 1962
DECISION AND ORDER
On March 5, 1962, Trial Examiner William R. Ringer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications noted
below'
1 We find no merit in the Respondent 's contention that the evidence proffered by it in
support of its position as to the eligibility of six employees ( whose challenged ballots were
ruled upon by the Board in Case No. 1-RC-6506 ) was improperly excluded . The Trial
Examiner 's ruling was based on the ground that such evidence was "neither new nor
newly discovered " This holding was in accord with well-established practice See, e.g.,
Royal McBee Corporation, 133 NLRB 1450, footnote 2; Trancoa Chemical Corporation,
133 NLRB 791 ( IR). Moreover , the record indicates that no evidence not previously
considered was offered , except that the Respondent 's offer of proof , made during the hear-
ing herein , contained additional information with respect to employee Ursini which was
not alleged in the representation proceeding . Thus, the Respondent has now offered to
prove that Ursini was the sole employee working in a separate building, whereas in the
prior proceeding , it stated merely that Ursini was the only employee engaged in his par-
ticular type of work. Assuming that the facts now asserted by the Respondent are true
and were properly raised , and that the Board were to conclude that Ursini was within
the stipulated unit and eligible to vote, his ballot could not change the results of the elec-
tion, and the validity of the certification could not be affected.
Y We do not adopt the findings of the Trial Examiner insofar as he may have implied
that challenges to a ballot must originate with the party filing exceptions to rulings
137 NLRB No. 23.