Brewer & Brewer Sons, Inc.

In the Matter of BREWER & BREWER SONS , INC., EMPLOYER and LAWRENCE STRATTON, VIRGIL DAVIS, JOE STANLEY, PETITIONERS and LOCAL UNION 143, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,. CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, UNION Case No. 9-RD-36.-Decided July 27,1919 DECISION AND ORDER Upon a petition duly filed, a hearing was held before William A. McGowan, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed.' 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 Reynolds, Murdock, and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer, an Ohio corporation, with offices at Chillicothe, Ohio, is engaged in the processing and sale of sand, gravel, asphalt, and ready-mixed concrete; it also sells building supplies, and main- tains a road construction department,2 the activities of which are con- fined to asphalt surfacing. The Employer uses some of the materials 'which it processes in its own road building operations. In 1948, the Employer derived a gross income of approximately $1,000,000 (including interdepartmental transfers amounting to about $200,000) from its sales of processed materials and building supplies and from its road construction operations. The Employer processed 1 United Construction Workers, affiliated with the United Mineworkers of America, moved to intervene at the hearing . As this labor organization is not in compliance with the filing requirements of Section 9 of the Act and has no contractual relationship with the Employer , the hearing officer correctly denied the motion. Matter of Schutte A Keening Company, 79 N. L. R. B. 599. 2 The Employer operates three separate processing plants, all near Chillicothe : one for processing sand and gravel , another for processing asphalt, and a third for processing ready-mixed concrete. These, with its building supply department, which is located at Chillicothe, and its road construction department , which operates within a radius of approximately 30 miles from Chillicothe, constitute the five separate internal divisions of the Employer's business. 85 N. L. R. B., No. 09. 387 857829-50-vol. 85-26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no materials, made no sales, and carried on no road construction oper- ations outside Ohio. In 1948, the Employer made purchases of approximately $500,000, of which approximately $50,000 represents the purchase price of liquid asphalt shipped to the Employer from out-of-State points, and of which. about $100,000 represents the purchase price of trucks and ve- hicles bought from dealers in Ohio but manufactured outside that State. In 1948, the Employer also conducted road building operations, con- sisting of asphalt surfacing, on main highways in Ohio, connecting Ohio with other States. These highways include U. S. 23, U. S. 35, and U. S. 50, part of the Federal-aid system of highways. This work was paid for by the State and by its political subdivisions 3 The Petitioners contend, and the Employer and the Union deny, that the Employer is engaged in commerce within the meaning of the Act. Although we do not find that the Employer's operations are wholly unrelated to commerce, we believe that the assertion of jurisdiction in this case would not effectuate the policies of the Act. We shall there- fore dismiss the petition .4 ORDER Upon the basis of the foregoing findings of fact, and upon the en- tire record in this case, the National Labor Relations Board hereby orders that the petition for decertification of representatives of em- ployees of Brewer & Brewer Sons, Inc., filed herein by Lawrence Strat- ton, Virgil Davis, and Joe Stanley, be, and it hereby is, dismissed. 3 The record does not disclose the proportion which such activities bear to the Employer's total business. 4 Matter of Makins Sand & Gravel Co., Inc ., 85 N. L. R. B. 21.3, and cases therein cited. In view of the substantial out-of-State in-flow of liquid asphalt ($50,000 ) which is one of the products sold by the Employer , Member Murdock would assert jurisdiction here con- sistent with the views expressed in his dissent in the Makins Sand and Gravel case. More- over, he is not disposed wholly to disregard the work of resurfacing U. S. highways as affecting interstate commerce , although it would not be necessary to rely also on that activity to take jurisdiction. He feels bound by the decision of the majority in the Makins Sand and Gravel case ( which had an even larger inflow of materials for resale ) however, and therefore joins in this decision.