Myers & Camille Painters

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent, Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Advance that it would stop Advance from conducting its opera- tions if Advance did not cease furnishing services to Fein, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(4)(ii )(B) of the Act. 4. By picketing, requests, appeals, orders, physical force , and other means, Re- spondent has induced and encouraged individuals employed by Advance to cease per- forming services for Advance with an object of forcing or requiring Advance to cease doing business with Fein, thereby engaging in unfair labor practices within the meaning of Section 8(b) (4) (i ) (B) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] John Myers, d/b/a Myers & Camille Painters, Petitioner and Painters District Council No . 22, of the Brotherhood of Paint- ers, Decorators and Paperhangers of America, AFL-CIO, and Russell Childs and Lester R. O'Bryant, individually and as officers, agents and employees of Painters District Council No. 22 of the Brotherhood of Painters, Decorators and Paper- hangers of America, AFL-CIO. Case No. AO-25. April 10, 1961 ADVISORY OPINION This is a petition for an advisory opinion filed by John Myers, d/b/a Myers & Camille Painters. In it he alleges in substance as follows : 1. Petitioner is engaged in the business of painting, contracting and subcontracting. He has done painting for general contractors and "directly for companies engaged in interstate commerce" such as Socony Mobile Oil Company, Inc., Detroit Brass and Malleable Com- pany, Chrysler Corporation, and Prudential Insurance Company. Those general contractors for whom he performed subcontract work "held contracts for large amounts with companies engaged in inter- state commerce, and we believe it may be stipulated that such general contractors were engaged in interstate commerce." 2. During 1958, Petitioner's entire sales amounted to $21,815.63, and during 1959 to $11,326.10. Cost of materials and supplies purchased by him was approximately $2,200 in 1958 and about $5,000 in 1959, nearly all of which were purchased from local paint retailers. 3. On November 28, 1958, Petitioner brought suit against Painters District Council No. 22, of the Brotherhood of Painters, Decorators and Paperhangers of America, AFI-CIO, and Russell Childs and Lester R. O'Bryant as officers, agents, and employees of said District Council No. 22 (herein collectively called Respondents), in the Cir- cuit Court for Wayne County, Michigan. The relief sought in said suit 131 NLRB No. 17. MYERS & CAMILLE PAINTERS 73 is an injunction and damages for alleged breach of a collective- bargaining agreement and alleged representations to "certain general contractors" which caused "certain contracts" which petitioner held to be canceled. The defendants in that case, respondents herein, have raised the question of "Federal preemption ," contending that the Board is vested with exclusive jurisdiction over the controversy. A response has been submitted by Respondents. In it they aver that : 1. The conduct complained of by Petitioner in his State court action, as disclosed by Petitioner's pleadings in said action, occurred in 1958, at least a year prior to the effective date of the Landrum-Griffin Act providing for the issuance of advisory opinions. 2. Petitioner is therefore seeking to obtain in 1961 an advisory opinion as to whether or not the Board "would have asserted jurisdic- tion over matters occurring in 1958, under the Board standards then in existence, had a charge been filed at the time." In addition, "the six months for filing and unfair labor practice has elapsed." 3. Accordingly, "the question is moot and an advisory opinion could serve no useful purpose." 4. In any event, since no commerce data has been given for any period after 1959, the petition offers "no basis for determining whether or not the Board would assert jurisdiction at the present time." I. We are of the opinion that the proceeding before us is not moot. Our Rules, as well as our Statements of Procedure, expressly author- ize the filing of a petition for an advisory opinion by any party to a State court proceeding whenever such party has a doubt whether we would assert jurisdiction over the labor dispute involved. (Section 102.98 of Rules; Section 101.39 of Statements of Procedure.) The word "proceeding" connotes an action pending before the State court and manifestly does not cover a closed case. We must deduce, how- ever, that Petitioner's suit in the State court has not been terminated or otherwise finally concluded in view of his uncontradicted or ad- mitted allegations that the State court suit is "pending in the Circuit Court of Wayne," and that Respondents have filed a motion to dismiss on the ground of Federal preemption. Nor do we believe that the petition is moot because the events sub judice in the State court may have occurred prior to the enactment of the so-called Landrum-Griffin Act . Regardless what standards the Board had adopted in 1958 and 1959 for asserting jurisdiction, the question is whether the Board would now assert jurisdiction over this Employer on the basis of the Board 's current standards, and not whether relief may be had in a Board proceeding. (Section 102.89 of 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's Rules and Regulations.) Hence it is immaterial what the Board's standards were in 1958 and 1959. Accordingly, even as- suming an intervening change in such standards, cases like N.L.R.B. v, Guy F.'Atkinson Company, et al., 195 F 2d 141 (C.A. 9) ; Eugen Pedersen v. N.L.R.B., 234 F. 2d 417 (C.A. 2) ; Edwin D. Wemyss, an individual, d/b/a Coca-Cola Bottling Company of Stockton, 110 NLRB 840; and Siemons Mailing Service, 122 NLRB 81, 84-85, have no bearing on the precise issue now before us. II. We do not believe that the state of the record as to commerce data is so unsatisfactory that we are precluded from rendering an advisory opinion. Although the Employer's operations for 1960 have not been stated, nevertheless the record reveals complete figures for 1958 and 1959. In such instances "the Board, in applying its jurisdictional standards, has ... uniformly relied on the experience of an employer during the most recent calendar or fiscal year, or the 12-month period immediately preceding the hearing before the Board, where such ex- perience was available." Aroostook Federation of Farmers, Inc., 114 NLRB 538, 539; Jos. McSweeny & Sons, Inc., 119 NLRB 1399, 1401. This has been true even though the data for the most recent period have not been available or the Employer's future operations may be uncertain. John Bischof, an individual d/b/a Bischof Die and En- graving, 114 NLRB 1346, 1347; Hobbs-Parsons Co., a corporation, 128 NLRB 1031; Grant-Billingsley Fruit Company, Inc., 127 NLRB 50; Samuel H. Burton, et al., d/b/a Burton Beverage, 116 NLRB 634, 635. III. Petitioner operates as a painting contractor. Our nonretail criteria apply to him. The Board's standard for exercising jurisdiction over a nonretail enterprise is an annual minimum of $50,000 outflow or inflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81, 85; Midwest Piping Co., Inc., et al., 127 NLRB 408; Frank Schafer, Inc.,127 NLRB 210. IV. Patently, Petitioner's annual volume of business for 1958 and 1959 failed to meet the Board's minimum standards relating to nonretail business. Accordingly, the parties are advised that the Board would not exercise jurisdiction over the operations of Myers on the basis of the commerce information alleged in the petition with respect to labor disputes under Sections 8, 9, or 10 of our Act. CHAIRMAN MCCULLOCH took no part in the consideration of the above Advisory Opinion.