Int'l Brotherhood of Electrical Workers, Etc.

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT engage in, or induce or encourage the employees of Texla Stevedoring, Inc., or of Southern Pacific Railroad Com- pany, or any other employer, to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require any employer or other person to cease doing business with Superior Derrick Cor- poration or to force or require Superior Derrick Coporation to recognize or bargain with Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, as the collective bargaining rep- resentative of any of Superior's employees, unless we are certified as such representative under the provisions of Section 9 of the Act. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC AND GULF DISTRICT, HARBOR AND INLAND WATERWAYS DIVISION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. International Brotherhood of Electrical Workers, Local No. 349 and Frank Schafer, Inc. Case No. AO-8. April 14, 1960 ADVISORY OPINION This is a petition filed by Frank Schafer, Inc., herein called the Employer, pursuant to Section 102.98 of the Board's Rules and Regu- lations, praying for an advisory opinion by the Board as to whether it would assert jurisdiction over "the labor controversy" described therein. A. It appears from said petition that: 1. The Employer, a Florida corporation, is an electrical contractor with its principal place of business in Miami, Dade County, Florida. It is engaged in different areas in Dade County, Florida, on several electrical contracting jobs. One of said jobs is "the new 7-Up bottling plant." "Commerce data based on [the Employer's] 1959 Federal income tax return" discloses the following : 127 NLRB No. 34. INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 211 Total materials purchased in 1959 ---------------- $49, 721.00 Total of gas, oil and repairs on car and truck in 1959 ------------------------------------- ---- 3,046.00 52, 767.00 Less 10%*-------------------------------------- 5,276.70 Total inflow in commerce**---------------------- 47, 490. 30 *Direct Inflow-0 percent. Indirect Inflow-90 percent. ** Not included in above-used truck purchased locally in 1959-$1,400. 2. On March 2, 1960, the Employer brought an action in the Circuit Court, 11th Judicial Circuit, Dade County, Florida, which has been docketed as Chancery Cause No. 60C-2028, against International Brotherhood of Electrical Workers, AFL-CIO, Local 349, herein called the Union, and R. T. Callahan and George Bowes, respectively, president and financial secretary of the Union. Said action prays, inter alia, for damages and injunctive relief against picketing of the Employer or its customers, or at, any job at which the Employer may be working. Said suit "states, in effect, a complaint . . . under Section 8(b) (7), subsection (A) and (C) of the National Labor Rela- tions Act, as amended . . . if there is a finding of jurisdiction" by the Board. 3. Although the "commerce data" recited in paragraph numbered 1, supra, "has not been denied" in the court action by the Union, the court has not "taken any testimony or made any findings thereon." 4. The Union has filed a charge with the Board, Case No. 12-CA- 1371, against the Employer, alleging violations of Section 8(a) (1) and (2) of the Act. B. The Union's answer in substance alleges that : 1. It denies that the "commerce data" given in the petition is correct or that it is "a complete and true picture of the activities [of the Employer] in interstate commerce." 2. The Employer is engaged in the subcontracting of electrical work on construction projects and presently holds subcontracts requir- ing "large amounts of purchases of electrical materials which have come in interstate commerce and will continue in the future, which are not reflected in his 1959 income tax return." In addition, the 1959 income tax r.;turn "is ambiguous and inconclusive" in making an unex- plained 10 percent "general deduction." 3. The Employer's 1960 "activities in interstate commerce," not reflected in his 1959 income tax return, have substantially increased over its 1959 activities. The Employer has performed and is presently performing services for persons engaged in interstate commerce. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Board has been administratively advised that the Regional Director for the Twelfth Region is investigating the jurisdictional aspects of the charge in Case No. 12-CA-1371. On the basis of the above, the Board is of the opinion that : 1. The Employer is engaged in the electrical contracting business. 2. The Board's standard for exercising jurisdiction over a nonretail enterprise is a minimum of $50,000 outflow or inflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81, 85; Eau Clair Building and Construction Trades Council and Robert Bauer, 122 NLRB 134111343. Accordingly, the parties are advised, pursuant to Section 102.103 of the Board's Rules and Regulations, that: 1. Although the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, the Board would not assert jurisdiction over the Employer herein on the facts submitted because they fail to show direct or indirect outflow or inflow of at least $50,000 in any given year.' On the facts before it the Board is unable to conclude that the Employer has any outflow, whether direct or indirect. Mere allegations that the Employer has performed and is presently performing services for persons engaged in commerce, while perhaps offering a basis for legal or statutory jurisdiction, are inadequate to establish outflow. Hence, the only basis for asserting jurisdiction} is an inflow of $47,490.30, which falls short of the Board's minimum standard of $50,000. Even if the value of the used truck purchased in 1959 is added to this figure, the total inflow would amount to but $48,890.30. 2. The Board expresses no opinion as to whether it would take jurisdiction over or render a decision on the merits of the controversy which is the subject of the State court action. 1 We interpret the Employer's data to mean that 10 percent of its purchases are purely local in nature, and that the figure $5,276.70 does not represent a discount on the Employer 's total purchases. Rapid Bindery, Inc., and Frontier Bindery Corporation and Local Union No. 685, Printing Specialties and Paper Products Union, International Printing Pressmen and Assistants' Union of North America, AFL-CIO. Case No. 3-CA-1253. April 15, 1960 DECISION AND ORDER On September 18, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in unfair labor practices in violation of Section 8(a) (1), (3), and (5) of the Act and recommending that they cease and desist therefrom and take certain 127 NLRB No. 33.