Westside Pattern Works

National Labor Relations Board - Board Decisions

Feb 12, 1965

150 N.L.R.B. 1730 (N.L.R.B. 1965)

1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, 450
Golden Gate Avenue, Room 13050, San Francisco, California, Telephone No. 556-
3197, if they have any question concerning this notice or compliance with its
provisions. -
Ben Patrick d/b/a Westside Pattern Works and Pattern Makers
Association of Los Angeles and Vicinity. Case No. 01-CA-5711.
February 12, 1965
DECISION ,AND ORDER
On September 8, 1964,, Trial Examiner James R. Hemingway,
issued his Decision in the above-entitled proceeding, finding that
it would not effectuate the purposes of the National Labor Relations
Act to assert jurisdiction over Ben Patrick d/b/a Westside Pattern
Works and recommending that the complaint herein be dismissed,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief and the Respondent filed an answering brief
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins]. -
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 Trial Examiner's Decision,
the exceptions, and briefs, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations with the modification
noted below.'
ORDER -
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts,
as its Order the Order recommended by the Trial Examiner, and
orders that the complaint herein be, and it hereby is, dismissed.
1 We agree with the Trial Examiner that the Board should not , under all the circum-
stances, exercise its discretion to assert jurisdiction herein. We do so, however , without
adopting all the views of the Trial Examiner as to the governing principles in applying
the national defense standard Cf. Ready Mixed Concrete & Materials , Inc., 122 NLRB
318. In view of our determination that the complaint should be dismissed on jurisdic-
tional grounds , we find it unnecessary to consider the findings of fact and conclusions of
law based on the merits of the case , which the Trial Examiner made in order to obviate
a remand in the event that the Board were to assert jurisdiction herein.
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On December 12, 1963, Pattern Makers Association of Los Angeles and Vicinity
(affiliated with Pattern Makers League of North America), herein called the Union,
150 NLRB No. 168.
WESTSIDE PATTERN WORKS 1731
filed a charge against Westside Pattern Works, a trade name for Ben Patrick, herein
called Respondent, alleging violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act;
on February 27, 1964, the Union filed an amended charge against Respondent,
alleging violations of 8(a)(1), (3), and (5) of the Act; and on May 21, 1964, the
Union filed a second amended charge against Respondent alleging violations of
Section 8(a) (1) and (5) of the Act. Upon the latter charge, a complaint duly issued
on May 22, 1964, against Respondent, Ben Patrick d/b/a Westside Pattern Works.
In substance, the complaint alleged that on or about July 10, 1963, and at all times
thereafter, the Union represented a majority of Respondent's employees in an alleged
appropriate unit; that on July 10, 1963, and continuing to the date of the complaint,
the Union had requested, and was requesting, Respondent to bargain collectively with
the Union; and that Respondent had, since July 10, 1963, failed and refused to bar-
gain collectively with the Union. Following a couple of extensions of time therefor,
Respondent, on June 26, 1964, filed an answer, specifically denying the substantive
allegations of the complaint and denying that he was engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Pursuant to notice, a hearing was held in Los Angeles, California, before Trial
Examiner James R. Hemingway. The General Counsel and Respondent were rep-
resented by legal counsel, and the Union was represented by its business agent. At
the close of the hearing, Respondent, alone, argued orally on the record, but after
the close of the hearing, the General Counsel, alone, filed a brief with me.
From my consideration of the evidence in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Based upon the undenied portion of the allegations of the complaint, I find that
Respondent is, and has been at all times material herein, an individual proprietor-
ship doing business as Westside Pattern Works at its principal office and place of
business located at 42011/2 South Sepulveda Avenue, Culver City, California, herein
referred to as the plant, and has been at all times material herein engaged at said
plant in patternmaking. Based on a stipulation entered into at the hearing, I find as
follows:
During the calendar year 1963, Respondent, in the course and conduct of its busi-
ness operations, purchased and received at its plant mahogany wood valued at
$342.07, the place of origin of which was outside the United States of America. Of
said mahogany wood purchased, $171.67 worth was purchased from suppliers
located in the State of California, which suppliers had received the same from a firm
located in the State of Louisiana. Said firm had cut and a kiln-dried said mahogany
wood prior to shipment and the same was transported by said suppliers to Respond-
ent's plant in the same form in which it was received by said suppliers. The balance
of said mahogany wood, in the amount of $170.40, was purchased from other firms
located in the State of California which were engaged, as is Respondent, in the
patternmaking business. Said mahogany wood had not been purchased by said
patternmaking firms for resale but were sold to Respondent as part of the business
liquidation of said firms. During the calendar 1963, Respondent, in the course and
conduct of its business operations, purchased and received at its plant wax fillets
valued at $34.84. Said wax fillets were transported to said plant and received from
a supplier located in the State of California which had received the same from a firm
located in the State of Ohio. During the calendar year 1963, Respondent, in the
course and conduct of its business operations, performed services valued in the
amount of $48,363.13. Approximately $12,000 of said amount represented patterns
made by Respondent and sold to Aluminum Castings Company located in the city
of Los Angeles, State of California, from which patterns Aluminum Castings Com-
pany made sand molds, and from which sand molds Aluminum Castings Company
in turn made aluminum castings for use in connection with national defense contracts.
Of said $12,000, approximately $6,000 represented patterns from which Aluminum
Castings Company made castings which it in turn sold to prime contractors for use
in connection with national defense contracts held by said prime contractors. Of
said $12,000, the remaining $6,000 represented patterns from which Aluminum
Castings Company made castings which it in turn sold to subcontractors doing busi-
ness with prime contractors for use in connection with national defense contracts
held by said prime contractors.
The Respondent contests jurisdiction of the Board, contending that even legal
jurisdiction is lacking because the amount of commerce involved in Respondent's
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
imports is de minim is)- In applying a de minimis rule, the Board is not, of course,
limited to direct interstate commerce of an employer. It may also consider the
impact of the Respondent 's operations upon commerce by considering indirect imports
or exports . The Respondent argues that the purchase of mahogany from other pat-
temmakers who were going out of business should not be considered as a retail sale
and should not be considered in determining the amount of indirect purchases.
Since this purchase was an isolated and nonrepetitive type of transaction, I am
inclined to agree with this contention . Aside from the purchase mentioned, the
Respondent purchased from local sellers who had obtained goods directly from
outside the State of California $ 171.67 worth of mahogany lumber and $34 . 84 worth
of wax fillets for a total of $206.51 worth of supplies procured in indirect commerce.
Whether or not this figure is de minimis is a question the answer to which is not
supplied by any precedent . In N.L .R.B. v. Suburban Lumber Company, 121 F. 2d
829 (C .A. 3), the court said, "De minimis in the law has always been taken to mean
trifles-matters of a few dollars or less." But in that case the contention had been
raised by a respondent which had purchased a minimum of about $150 ,000 worth of
lumber which came directly or indirectly from out of State, and the court approved
of the Board's assertion of jurisdiction . Cases in which jurisdiction is found to be
lacking because the amount involved is de minimis are difficult to find. The de
minimis contention , when raised in issues of jurisdiction , is rejected in most of the
cases dealing therewith . The line below which the doctrine of de minimis applies is,
therefore , difficult to fix.
However, even if the Board has legal jurisdiction on the basis of such a small
figure of indirect interstate commerce , Respondent contends that the amount involved
does not warrant the assertion of discretionary jurisdiction . The General Counsel's
position is that the Board is not bound by any specific figure if it has legal jurisdiction
and that, under the Board 's present announced jurisdictional standards , no minimal
dollar amount has been set in cases involving the national defense. As the Board
stated in a representation case in 1958 , Ready Mixed Concrete & Materials, Inc.,
122 NLRB 318:
The Board has determined that it best effectuates the policies of the Act to
assert jurisdiction over all enterprises ; as to which the Board has statutory juris-
diction, whose operations exert a substantial impact on the' national defense,
irrespective of whether the enterprise 's operations satisfy any of the Board's
other jurisdictional standards.
In adopting this standard the Board has eliminated the requirements that an
enterprise's national defense operations must be directly related to national
defense, must be performed pursuant to contracts or subcontracts with the
Government , and must amount to at least $100 ,000, a year . 2 It has done so
because it believes that it has a special responsibility as a Federal agency to
reduce the number of labor disputes which might have an adverse effect on the
Nation 's defense effort. The Board believes that this responsibility can best be
carried out by the more flexible standard announced herein.
In the Ready Mixed case, the employer was a South Carolina business which sold
building materials wholly within the State of South Carolina. It had no out -of-State
purchases . Of its total sales, some were made to out-of-State contractors performing
work in South Carolina in the amount of $2,492. It also sold materials valued at
$154,000 to general contractors engaged in construction of an Air Force base in
South Carolina. The Board did not specifically state upon what it based its legal,
as contrasted with its discretionary , jurisdiction. In a case 3 in which the Board
based its jurisdiction upon much the same theory , this time one which based juris-
diction on architectural services rendered to the U.S. Corps of Engineers , Ladd Air
Force Base, and Eielson Air Force Base in the value of $35,482 and on services
connected with airstrips for Alaska 's International Airport and the Alaska Depart-
ment of Aviation in the value of $18,000 and $ 26,000, respectively , the Board stated
that "the Respondents ' operations exert a sufficient impact on national defense to
justify our exercising jurisdiction . .", citing the Ready Mixed decision. The
Board made no effort to distinguish legal jurisdiction from discretionary jurisdiction
1 Respondent also points to the fact that the General Counsel did not prove that
Aluminum Castings Company was engaged in interstate commerce. The General Counsel
undertook only to the Aluminum Castings Company to national defense as heretofore stated
2 Citing the case of Maytag Aircraft Corp., 110 NLRB 594 (October 26, 1954 ), where
that figure was first used.
3 Gray, Rogers, Graham & Osborne , 129 NLRB 450.
WESTSIDE PATTERN WORKS 1733
in this case either. The Court of Appeals for the Ninth Circuit denied enforcement,
stating that it found no sufficient jurisdictional basis for enforcement and was unable
to find that enforcement would effectuate the statutory purposes.4
As applied to the case at hand, the Board's only yardstick is that of "substantial
impact on the national defense." In this respect, the state of the Board's policy is
similar to that which prevailed before 1954,° when the $100,000 limitation was
adopted (in the Maytag Aircraft case, supra). But even before 1954, examples of
what the Board considered substantial effect upon national defense (in terms of dol-
lar amounts) were no more numerous than since 1958 when the Ready Mixed case
was decided. In the Westport case, supra, the Company's total business was $21,000.
It is not clear whether or not this sum came entirely from making crates under con-
tract for the 5th Army Headquarters. If not, the amount of business done with that
branch of the armed services is not shown at all. Other cases where the operations
of the employer affected national defense involved at least as great a sum or greater.
In the only case which I have found where the effect on national defense amounted
to less-$600 for parking automobiles for the Army Recruiting Service and to other
Government agencies-the Board declined to assert jurisdiction.6
Although it is not a required element, I note that the Respondent here has had no
direct dealings with any defense agency. Its total services, all performed within the
State of California, amounted to $48,363.13 in 1963. Of this amount, $12,000 rep-
resents the value of patterns made and sold by Respondent within the State of Cali-
fornia to a casting company which used 50 percent, or $6,000 worth, thereof to
make castings which the casting company in turn sold to prime contractors for use
"in connection with" national defense contracts. The nature of this connection was
not further explained. The other 50 percent of the value of patterns sold to the
casting company was used by the latter to make castings which it sold to subcon-
tractors doing business with primte contractors for use "in connection with" national
defense contracts held by said prime contractors. The General Counsel argues that
Respondent's work "is vital to the manufacture of parts that are used directly in
defense projects or may even be used in the manufacture of parts in a weapon system
assembly." The latter part of this argument-that Respondent's work may result
in use In the manufacture of weapons-is pure speculation. No attempt was made
to prove this.
The first part of the General Counsel's argument-that the Respondent''s work is
vital to the manufacture of parts that are used directly in defense projects-is based
on an assumption that may or may not be well founded. It is not necessarily estab-
lished that the Respondent's patterns are "vital" to the manufacture of "parts" that
are used directly in defense projects merely because they are "used by" contractors
"in connection with" national defense contracts. That connection might be either
proximate or remote. Even if I could infer that the castings made by Aluminum
Castings Company resulted in the manufacture of "parts" (for which there is no
evidence), I could not infer that these parts actually became merged in a mechanism
used by prime contractors "in connection with national defense." This presents no
concept of "substantial impact" upon national defense at all. For all that appears,
the parts might go into candy vending machines to be used at post exchanges.
Because the Respondent's business is small, failing to meet any other jurisdictional,
standard of the Board, because it is essentially local in character, and because the
extent of impact on national defense is vague and indefinite, I find that it would not
effectuate the policies of the Act to assert jurisdiction.?
4 Robert P. Gray, et al., d/b/a Gray, Rogers, Graham and Osborne Y. N.L.R.B., 295
F 2d38 (CA.9).
s At that time, the Board was using a test of "substantially affecting national defense."
I find no essential difference between this language and "having a substantial impact on
national defense." Westport Moving and Storage Company, Crate Making Division, 91
NLRB 902. Without fixing any minimum amount, as it did later in the Maytag case,
supra, the Board on January 20, 1954, in Louis Rubino, et al., d/b/a Alpine Mill and
Lumber Company, 107 NLRB 915, departed from the Westport rule and held that sales of
approximately $20,000 to the United States Army did not have a sufficient effect upon
national defense to warrant its asserting jurisdiction See dissenting opinion in that case.
9 Toledo Service Parking Company, 96 NLRB 263
7 Since the Board has furnished no clear guide line and may disagree with my con-
clusions as to jurisdiction, I have made findings of fact and conclusions of law based
upon the merits of the case and have attached them hereto as an appendix so as to
obviate the necessity of a remand in the event that the Board should decide to assert
jurisdiction.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
I recommend that the complaint be dismissed.
APPENDIX •
[To be used if Board should assert jurisdiction]
II. THE ORGANIZATION INVOLVED
It was stipulated at the hearing , and I find, that the Union is 'a labor organization
within the meaning of the Act. It is apparent also that the Union admits to member-
ship employees of Respondent.
HI. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain
The parties stipulated at the hearing , and I find, that all Respondent 's pattern-
makers ( if two or more in number ), excluding office clerical employees , guards, pro-
fessional employees , and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment within the meaning of
Section 9 (b) of the Act.
2. The Union's majority
Since the first amended charge, filed on February 27, 1964 , was the first charge of
refusal to bargain, we are limited by Section 10(b) of the Act, to a consideration of
refusal to bargain within 6 months prior to that date, or back to September 27, 1963.
The requests and refusals alleged in the complaint to have occurred between July 10
and September 27, 1963, will therefore not be considered.) The next request after
September 27, 1963, took place in the first week of October 1963. At that time
Respondent had two patternmakers who were members of the Union. A later writ-
ten request to bargain was made approximately on December 18, 1963, which was
rejected on December 20, 1963. On December 20, Respondent had in his employ
two patternmakers who were members of the Union. At intervals, the Respondent
had a maximum of four patternmakers and a minimum of none. Since the Union
had two members who constituted a majority of the two employed on the date of
request and refusal to bargain with the Union, I find that the Union was, by virtue
of its majority, the exclusive representative of the Respondent 's employees in the
appropriate unit on December 20, 1963, within the meaning of Section 9(a) of the
Act.
3. Refusal to bargain
During the first week in October 1963, the Union 's business agent, Edgar Wiethop,
accompanied by the Union' s president , called on Respondent and requested that he
sign a union contract . Respondent had previously been supplied by the Union with
a copy of its contract. Wiethop quoted Respondent as saying that he was not ready
to sign a contract.
Under date of December 17, 1963, the Union wrote to Respondent and requested
recognition and a meeting for the purpose of negotiating a collective -bargaining
agreement. In this letter, the Union stated that if it did not receive a reply by
January 1, 1964, it would file a petition for certification. Respondent replied by
letter of December 20, 1963, stating that he employed a maximum of four pattern-
makers, that the nature of the business resulted in fluctuations affecting employment,
that currently Respondent had considerable amount of wood pattern work but antici-
pated laying off wood patternmakers as metal work increased and metal men were
substituted for wood patternmakers . Because of this fluctuation , Respondent ques-
tioned the Union 's majority.
• Following receipt of Respondent 's reply, the Union filed a petition for certifica-
tion, but, after the filing of the first amended charge, it was withdrawn on March 5,
1964.
Because of the way counsel 's question was put to Wiethop , the evidence is not
clear as to whether Wiethop, in October, asked Respondent to sign the Union's
existing contract or to negotiate for an individual contract . If the former , Respond-
, I In any event there were no employees working on July 10, 1963, the date of the
earliest alleged request to bargain.
SOPHIA ELECTRIC SUPPLY SHOP, INC. 1735
ent's statement that he was not ready to sign the existing contract would not be the
same as a refusal to bargain for a new, individual, contract. This difficulty is avoided
in the language of the Union's letter of December 17, which does ask for recognition
and negotiation. Respondent's reply was not an outright refusal to negotiation. It
was a questioning of the Union's majority. The evidence is not clear whether
Respondent was questioning the Union's majority because he claimed not to know
which of his employees was a member of the Union or because he believed that
metal workers should be included in the appropriate unit. If either was the case, I
should say that Respondent was justified in putting the Union to proof in a repre-
sentation proceeding. That the Respondent procured its wood patternmakers by
making requests of the Union for new men does not necessarily prove that the
Respondent should have known that such men were members of the Union. If the
Union operated a nondiscriminatory hiring hall, patternmakers other than members
of Respondent might have been referred by the Union.
On the evidence presented, I find no refusal to bargain and I recommend that the
complaint be dismissed.
Sophia Electric Supply Shop , Inc. and District 50, United Mine
Workers of America. Case No. 9-CA-3117. February 12, 1965
DECISION AND ORDER
On October 28, 1964, Trial Examiner George J. Bott issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed limited exceptions to Trial Examiner's
Decision and a brief in support, and the Respondent filed an
answering brief in opposition to General Counsel's limited exceptions
to Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Brown and Jenkins].
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 Trial Examiner's Decision and the
entire record in this case, including the exceptions and briefs, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed.
150 NLRB No. 171.