Makins Sand & Gravel Co., Inc.

In the Matter of MAXINS SAND & GRAVEL CO., INC., EMPLOYER and GENERAL DRIVERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , LOCAL No. 886, AFL,, PETITIONER Case No. 16-RC-345.-Decided July 15, 1949 DECISION AND ORDER Upon a petition duly filed, a hearing in this case was held at Okla- homa City, Oklahoma, on March 15, 1949,. before Evert P. Rhea,,hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer appeared specially at the hearing for the limited purpose of contesting jurisdiction and moved to dismiss the petition on that ground. For the reasons hereinafter stated, the motion is granted. Upon the entire record in this case, the Board finds: 1. The Employer, an Arkansas corporation, is engaged at a plant in Oklahoma City, Oklahoma, in the processing, manufacture, and sale of ready-mix concrete, sand, and gravel. During 1948 the Employer purchased equipment and raw materials valued at $367,000, 20 percent or approximately $72,000 worth of which represents purchases mad'a"inn Kansas of cement, a component part of the ready-mix concrete manu- factured by the Employer. In 1948 the Employer's sales amounted to $750,000, including concrete sales totaling $550,000-$600,000, the re- mainder being sales of sand and gravel. All sales were made locally to construction contractors engaged chiefly in city paving and build- ing-construction work. Negligible amounts of ready-mix concrete were sold to a railroad, and also to a construction company which used. it to repair an airstrip at the municipal airport. 85 N. L. R. B., No. 37. 213 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Matter of Blue Diamond Corporation,' et al, the Board refused to assert jurisdiction over John D. Gregg Company, which received 50 percent of its purchases valued at $50,000 from across State lines, as well as over other employers receiving substantial amounts of raw materials from outside the State and engaged in the sand and gravel business. Consistent with our action there, although we do not find that the Employer's operations here are wholly unrelated to commerce, we believe that the relationship is remote and that the operations are essentially local in character. The assertion of jurisdiction would not, therefore, effectuate the policies of the Act. Accordingly, we shall dismiss the petition. ORDER Upon the foregoing findings of fact and the entire record in this case, the National Labor Relations Board hereby orders that the petition filed in the instant matter be, and it hereby is, dismissed. MEMBERS HOUSTON and MURDOCK, dissenting : We do not share the view of the majority that the assertion of juris- diction in this case would not effectuate the policies of the Act. It is true that the Board has in a number of cases refused to assert juris- diction over employers engaged locally in businesses which, like that of the Employer, were closely related to the building and construction industry. The Board's decisions in those cases, however, were predi- cated upon one of two premises : either that the volume of goods that crossed State lines was too insignificant to change the essentially local character of the business operations involved; 2 or the premise that even a substantial dollar volume of out-of-State inflow does not trans- form an otherwise essentially local business into an interstate one where such inflow is largely confined to purchases of capital egwdpment 3 1 81 N. L. It. B. 484 . See also Matter of Texas Construction Material Co., 80 N. L. It. B. 1248; Matter of Harvey M. Hanawalt , d/b/a Hanawalt Bros., 80 N. L . It. B. 1302 ; Matter of Knoxville Sangravl Material Company, Inc., 80 N. L. It . B. 1461 ; Matter of Hartman Concrete Materials Company, 82 N. L. It. B . 1223; Matter of The Southern Company, 82 N. L. R . B. 1388. 2 Thus, in approximate figures , in Matter of Texas Construction Material Co., 80 N. L. It. B. 1248, the direct inflow across State lines constituted only 3 percent of the total purchases or $13 ,565 in value ; in Matter of Harvey M. Hanawalt, d/b/a Hanawalt Bros ., 80 N. La. R. B. 1302, the direct inflow amounted to 5 percent or $15 ,7501; in Matter of Knoxville Sangravl Material Company, Inc., 80 N. L. It . B. 1461, the direct inflow was only 2 percent or $7,780; whereas in Matter of Hartman Concrete Materials Company, 82 N. L. R. B . 1223, there was no direct inflow at all ; and in Matter of The Southern Company, 82 N. L. It . B. 1388, the direct inflow of purchases constituted as little as $3,255 .46 in value. ' See e . g., Richter Transfer Company , 80 N. L. It . B. 1246, where the Board said : "We do not believe that the essentially local character of work such as excavation assumes a sufficiently interstate aspect merely because capital equipment purchased to engage in such work may have come from outside the State . This case is distinguishable from .Matter of J. H. Patterson Co., 79 N. L. It. B. 355, which involved a building material supply ibusiness with a regular and continuous Inflow of materials from without the State for xesale." (Emphasis supplied.) MAKINS SAND & GRAVEL Co., INC. 215 The refusal of the Board to assert jurisdiction over the John D. Gregg Company in the Blue Diamond case, in our opinion, was predicated on the premise last mentioned, and hence that decision, which is relied upon by the majority, is not controlling in the instant case 4 -Here, a substantial amount of raw materials-cement used in the Employer's ready-mix concrete sales-valued at $72,000 and representing 20 per- cent of total purchases, was shipped from outside the State of Okla- homa. This case, accordingly, falls within the category of cases like J. H. Patterson Co. (79 N. L. R. B. 355) involving building material supply businesses with a continuous and substantial inflow of mate- rials from without the State for resale, where we take jurisdiction.5 4 Although the stipulation of facts in that case failed to differentiate between purchases of equipment and materials, we recognized that out-of-State purchases by a sand and gravel company will of necessity be largely confined to equipment , as sand and gravel are customarily produced locally, transportation costs precluding importations from out-of- State sources. 6 See also Matter of Akron Brick & Block Co ., 79 N. L . R. B. 1253 ; Matter or Ernest Spickelmier, Edith P. Spickelmier, Carl F. Spickelmier, Fred J. Spickelmier, Betty P. Spickel- mier, and Edith Greer, Partners d/b/a Spickelmier Company and / or Builders Sand & Gravel Company, 83 N. L. R. B. 452.