Madison Bldg. & Construction Trades Council, Etc.

MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 517 ness, the selfishness or unselfishness of the end for which particular union activi- ties represent means . United States v. Hutcheson , supra. Thus, regardless of the judgments implicit in my comments above , with respect to the conduct of the respondent labor organizations, their unfair listing of the complainant Employer cannot be considered violative of the statute. CONCLUSIONS OF LAW , 1. Northwestern Construction of Washington , Inc., is an employer engaged in commerce and business activities which affect commerce within the meaning of Section 2 (6) and (7) of the Act, as amended. 2. Electrical Workers Local Union No. 73, and Northeastern Washington- Northern Idaho Building and Construction Trades Council are labor organizations within the meaning of Section 2(5) of the Act, as amended. 3.1 It has not been established by a preponderance of the evidence that Respondent Union or Respondent Council threatened, coerced , or restrained any person engaged in commerce or in an industry affecting commerce, for an objective statutorily proscribed. [Recommendations omitted from publication.] Madison Building & Construction Trades Council , William Arnold ; Local 204, Operative Plasterers & Cement Finishers International Assn., Robert Cleveland ; Local 111, Wood, Wire & Metal Lathers International Union , Jacob Puccio and Wallace Hildebrandt & John Kiefer, d/b/a H & K Lathing Co.; and Warren H. Tetzlaff. Case No. 13-CC-350. Novem- ber 00, 1961 DECISION AND ORDER REMANDING CASE TO THE TRIAL EXAMINER On August 31, 1961, Trial Examiner William Seagle issued his Intermediate Report in the above-entitled proceeding, recommend- ing that the complaint herein be dismissed because the operations of the secondary employers involved did not meet the Board's standards for assertion of jurisdiction, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondents filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Brown]. 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the General Counsel's exceptions. The complaint alleges that the Respondents engaged in secondary activities in violation of Section 8 (b) (4) (ii) (A) and (B) of the Act. The violations allegedly involve four homebuilders located in Madi- 134 NLRB No. 43. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son, Wisconsin, as the secondary, employers. At the times,material to the alleged violations, the primary employer, H & K Lathing Co., was performing lathing work at 5039 Marathon Drive, Madison, Wis- consin, for Warren H. Tetzlaff ; in the 500 block of Meadow Lane, Madison, Wisconsin, for Byron Jevne ; 1 and at 2214 Branch Street, Middleton, Wisconsin, for Paul Montalto, subcontractor for Dean and Donald Rischmueller, general contractors. During 1960, materials originating out-of-State and used at these three construction sites amounted in value to $13,226.23 at the Marathon Drive site; $23,598.12 at the Meadow Lane site ; and $16,242.58 at the Branch Street Site .2 The Trial Examiner recommended dismissal of the complaint on jurisdictional grounds, because he found that no violation had oc- curred affecting the Montalto job at the Branch Street site, and he therefore excluded the inflow to this job from, consideration. As the combined indirect inflow figures for the Marathon Drive and Meadow Lane sites were found not to meet the Board's indirect inflow standard- of $50,000 for nonretail enterprises, the Trial Examiner found an in- sufficient basis for assertion of jurisdiction with respect to the opera- tions of Tetzlaff and Jevne at these sites. Consequently, the Trial Examiner did not make findings as to the alleged violations involving them. In reaching these results, the Trial Examiner apparently concluded -that he must, in each instance, find a violation before he could con- sider, for jurisdictional purposes, the commerce figures of the sec- ondary employers. We do not agree. Under the rules of Jamestown 3 and McAllister 4 cases, where, as here, the primary employer does not meet the Board's jurisdictional standard, the Board will take into consideration for jurisdictional purposes not only the operations of the primary employer, but also the entire operations of the secondary employers at the locations affected by the alleged conduct involved.' The requirement that secondary employers be affected by the conduct, involved does not mean that a violation must first be found. It is, sufficient that conduct occurred that involved the secondary employer, which conduct must be considered and ruled upon as alleged viola- tions. Moreover, the conduct involving one secondary employer may not, as an isolated incident, be ruled upon as to whether it constitutes. 1 While H & K at the time of the alleged violations were working at 514 Meadow Lane, Jevne planned to have them do the lathing at the other houses under construction in this, block, located respectively at 510, 506, and 502 Meadow Lane , and II & K understood that they were to do this work 2 We accept and rely on the General Counsel's figures with respect to the indirect inflow of materials from out-of-State for use at the construction sites herein involved sTruck Drivels Local Union No 649, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, AFL (Jamestown Builders Exchange, Inc ), 93 NLRB 386 * International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Drivers and Helpers Local No. 554 , and Chauffeurs, Teamsters antr Helpers Local No 608, AFL (McAllister Transfer, Inc ), 110 NLRB 1769 5 Id•, pp. 1769-1772. MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 519 a violation, as the Trial Examiner did, unless jurisdiction is first as- serted in the proceeding under the Board's applicable standards. In these circumstances, as the combined indirect inflow of the four secondary employers at the locations affected is $53,067.63, an amount exceeding the required $50,000, we find that such combined indirect inflow meets the Board's jurisdictional standard.' Accordingly, we find that, for the purpose of this proceeding, the four secondary em- ployers herein involved are engaging in commerce, or in operations affecting commerce, within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceed- ing and to resolve the substantive issues raised by the complaint. We shall therefore remand this proceeding to the Trial Examiner. [The Board remanded the above-entitled proceeding to the Trial Examiner for the preparation and issuance of a Supplemental Inter- mediate Report setting forth his findings of fact, conclusions of law, and recommendations with respect to the unfair labor practices al- leged in the complaint.] 0 United Slate, Tile and Coin position Roofers, Damp and Waterproof Workers Assocw- tson, AFL-CIO, Local Union No 57 (Atlas Roofing Go, Inc ), 131 NLRB 1267, footnote 2. INTERMEDIATE REPORT STATEMENT OF THE CASE The complaint charged the Respondents with violation of Section 8(b) (4) (ii) (A) and (B ) of the Act. In their answer, the Respondents denied not only the allegations of the complaint charging the commission of unfair labor practices by them but also the jurisdictional allegations of the complaint. I held a hearing on the issues at Madison , Wisconsin, on June 20, 21, 22, and 23, 1961, at which all parties were represented by counsel. At the close of the taking of testimony, counsel for the Respondents presented oral argument and, subsequent to the hearing , counsel for the Respondents , the General Counsel, and the Charging Party, filed briefs which I have duly considered. Upon the record so made, and based upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE CHARGING PARTIES AND THE EMPLOYERS The Charging Parties are Wallace Hildebrandt and John Kiefer,' who, as self- employed persons , are engaged in the installation of lathing in buildings under the firm name and style of H & K Lathing Co. H & K have formed an informal part- nership but they have no employees . They do not, morever, purchase any materials, and their only capital assets are their own personal tools, an automobile that has been converted into a truck , and a scaffolding. A lather's tools consist of a hatchet, nail sack, a belt, a string, and possibly a level or a plumb line. The precise value of the tools, truck, and scaffolding is not shown by the record but it is, obviously, slight . On February 15, 1961 , H & K filed an affidavit of partnership identity in the office of the Register of Deeds for Dane County, Wisconsin, but this affidavit was filed after the date of the alleged unfair labor practices. The employers involved in the proceeding are as follows: Warren H. Tetzlaff is a building contractor in Madison, Wisconsin . In 1960, the gross volume of his business was approximately $ 180,000, and he spent approxi- mately $70,000 on materials. 1 When both of them are mentioned hereafter, whether individually or as partners, they will be referred to as H & K 5520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Byron Jevne is also a builder in Madison, Wisconsin. In 1960, the gross volume of his business was about $250,000, and he spent approximately $125,000 for materials. Dean Rischmueller and Donald Rischmueller, who are partners, operate as build- ing contractors in the area of Madison, Wisconsin, under the name of "Better Builders." In 1960, the gross volume of the business of the partnership was over $200,000, and about $100,000 was expended on materials. Paul Montalto is a lathing and plastering contractor in Madison, Wisconsin. The gross volume of his business is from $60,000 to $70,000 annually. He expends annually about $20,000 on materials originating outside the State of Wisconsin. Tetzlaff, Jevne, and the Rischmuellers purchase almost all of their materials locally but most of these materials originate outside the State of Wisconsin. Tetzlaff did not specifically testify with respect to the origin of all of his materials but Jevne estimated that approximately 90 percent of his materials originated outside of the State of Wisconsin, and Dean Rischmueller testified that a con- servative estimate would be that 75 percent of the materials purchased by the part- nership originated outside of the State of Wisconsin. As Tetzlaff's business is similar to that of Jevne's and the Rischmuellers', it may be assumed that approxi- mately 75 percent of his materials originated outside of the State of Wisconsin. II. THE LABOR ORGANIZATIONS AND THEIR AGENTS Local 111, Wood, Wire & Metal Lathers International Union; Local 204, Opera- tive Plasterers & Cement Finishers International Assn.; and Madison Building & Construction Trades Council are labor organizations that operate in or in the vicinity of Madison, Wisconsin. Jacob Puccio is a part-time business agent of Local 111, and Robert Cleveland is a full-time business agent of Local 204. William Arnold is executive secretary of the Madison Building & Construction' Trades Coun- cil, which is composed of delegates from the building trades unions in the Madison, Wisconsin, area, including Locals 111 and 204. The delegates to the Council are normally the business agents of the locals affiliated with the Council, and the presi- dent of the Council is the business agent of the Sheet Metal Workers Union in Madison, Wisconsin. As executive secretary of the Council, Arnold advises the business agents but they are not required to accept his advice. Decisions of the Council are made by its executive board. III. THE ALLEGED UNFAIR LABOR PRACTICES Before they decided to seek lathing work in the area of Madison, Wisconsin, H & K were both members of Local 111. The dues of Kiefer were then, however, considerably in arrears, and his suspension was being considered by the union. Early in February 1961, Puccio was approached by H & K who asked the business agent what procedure they would have to follow to become contractors. Under the provisions of the union's constitution, it was necessary for them to get solicitors' cards but these were issued only after application in writing. H & K never filed written applications but, in order to get the necessary permission, contacted Puccio a number of times-at his home and in a parking lot of a supermarket. On these occasions,_Puccio told H & K that he had no authority to issue the solicitors' cards. Becoming impatient, they warned him in one of their conversations that they had consulted their lawyer, and that if he attempted to interfere with them they would get an injunction against him. Their impatience was due to the fact that, having already contacted some builders and lined up some lathing jobs, they were anxious to get started. One of these builders was Warren H. Tetzlaff who, at the beginning of January 1961, had begun the construction of a house at 5039 Marathon Drive in Madison. Tetzlaff had agreed, on or about February 3, to have H & K do the lathing on the house and they had set up their scaffolding on or about February 9. H & K had agreed to do the work at the price of $1.25 a bundle of laths, with a maximum price of $600. About 9 a. m. on February 10, Tetzlaff was in his office when he was visited by Puccio, who was accompaniel by Arnold. Puccio told Tetzlaff that he had heard that he "was going to be using H & K lathing Company on the Marathon Drive job." According to the testimony of Tetzlaff, when he admitted this, Puccio informed Tetzlaff that H & K were "on the outs with the union, and behind in their dues, one of them being farther behind than the other," and warned Tetzlaff that if he used H & K, he would have to put a picket on the job? Puccio also 9 In testifying about the conversation, Tetzlaff referred to what "they" ( meaning Puccio and Arnold) told him but, when specifically asked who made a particular statement, he explained that he meant Puccio. Actually, Arnold did not participate in the conversation. MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 521 told Tetzlaff that he ought to take into consideration the fact that although H & K had agreed to do the lathing work at $1.25 a bundle, they might hide bundles of laths in the walls. Puccio also suggested that Tetzlaff have the work done by Bolig & Steel, a union lathing company. Tetzlaff finally told Puccio that he would like to have an opportunity to talk to H & K, in order to get their side of the story, but promised to have "an answer for them by noon that day." How- ever, Tatzlaff appears to have been in a hurry to have the house lathed before the plasterers arrived on Monday,3 and, when Bolig came to see him later that morning, he gave him the lathing job, although he had not yet spoken to H & K. When H & K arrived about 3 o'clock in the afternoon, they asked Tetzlaff whether they still had the job. According to his own testimony, Tetzlaff replied: "Well, no, I was forced by the union to take these other contractors" (meaning Bolig & Steel). Another building contractor who had agreed to give lathing work to H & K was Byron Jevne. He was constructing four houses on the 500 block of Meadow Lane in Madison, namely, at 514, 510, 506, and 502 Meadow Lane.4 No. 506 was a contract job but the other three houses were being built for sale. The foundations on the four houses had been put in in the fall of 1960, so that continuous work would be available the following January, February, March, and April. However, on February 9, 1961; only the house at 514 Meadow Lane was actually ready for lathing; the house next to it was only being framed; no more than the basements of the other two houses had been put in, and the basements themselves were covered with snow. In the winter of 1960, H & K had done the lathing work on a house being built by Jevne near Regent Street and Whitney Way in Madison, and Jevne had told them that lathing jobs would be coming up on the Meadow Lane houses, and acquainted them with his construction schedule. When the house at 514 Meadow Lane was ready for lathing, which was on February 9, H & K commenced the lathing work. About 10 a. m. on February 10, 1961, Jevne, like Tetzlaff, had a visit from Puccio and Arnold. Puccio himself lived on Meadow Lane in a house built by Jevne, and the two men appear to have been friendly, for in his testimony Jevne referred to Puccio as "Jack." On February 8, Jevne had had a conversation with Puccio in which the latter, without mentioning H & K, had attempted to persuade Jevne to give his lathing work to Walter Late & Company. In the conversation on February 10, Puccio did mention the trouble that H & K were having with the union. Having been told that H & K were delinquent in their dues, Jevne offered to advance enough money to H & K to enable them to pay these dues but Puccio informed Jevne that the matter was more serious than that. According to the testimony of Jevne, Puccio told him that H & K "couldn't work on the job and if I kept them working I would be in trouble " H & K had also agreed to do the lathing for Jevne for $1.25 a bundle, and Puccio also intimated to Jevne that H & K might hide bundles in the walls. However, Jevne "pooh-poohed" this idea, since he was certain, in view of his experience, that if H & K hid even two bundles in the walls, he would be aware of it. Nevertheless, feeling, as he put it, that he could not afford to "take a chance on any picket, if that's what he had in mind," he asked Puccio what he could do to keep H & K off the job if they should come back. Puccio then suggested that Jevne remove the nails from the house, since this would prevent H & K from continuing with the lathing. When Jevne agreed to this stratagem, Arnold remarked: "Well, we can't expect anymore than this." However, Jevne did not keep his promise to Puccio to remove the nails, although. he had generally employed union help, and he, himself, testified that he would not have employed H & K if he had know that they were having trouble with the union . H & K appeared on the jobsite about an hour after Puccio and Arnold had left, and Jevne told them about their visit, and informed them that they could not finish the job. Nevertheless, H & K stayed on the job long enough to clean up, and returned a few days later to complete the lathing work. Jevne testified that he did not authorize H & K to complete the work but added: "If I would have been around, I probably wou)dn't have prevented it, I needed the job." ,When H & K had completed the work, moreover, they were paid for it. Prior to the visit of Puccio and Arnold, Jevne had expected to employ H & K to lath the other three houses that he was constructing on Meadow Lane. But, when these three houses finally came to be lathed, the work was done by the Madison Lathing Company, which employed union labor, rather than by H & K. ,'The day of Pucelo's and Arnold's visit was a Friday ' The complaint alleged only that two houses were being constructed on Meadow Lane but it was amended at the hearing to increase the number of houses to the four mentioned. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, In testifying about his conversations with Tetzlaff and Jevne, Puccio denied making any threatening statements to either of them. He explicitly denied threatening Tetzlaff with a picket line. He also denied that either he or Arnold told Jevne that if he did not get rid of H & K "that he was going to have trouble." Indeed, Puccio contended that it was Jevne who first interjected the word "trouble" into the conver- sation when he said that he would remove the nails because he did not want any trouble on the job. Puccio also testified that he asked Arnold to drive him out to the Tetzlaff and Jevne jobs because his automobile, which was a 1953 Mercury that had traveled over 90,000 miles, was not in a serviceable condition. Arnold's testimony about the visits to Tetzlaff and Jevne is to the same effect as that of Puccio. He testified that, although he was interested in the object of Puccio's mission, that he was "more or less" furnishing the transportation. He testified ex- plicitly that, although he was present during the whole of the conversation between Puccio and Tetzlaff, he did not hear the former say to the latter that, if be did not get rid of H & K, his place would be picketed. Asked whether he himself threatened Jevne with trouble, Arnold denied it. He testified that Jevne mentioned the fact that H & K had run out of nails but that he had some more in the trunk of his car, and suggested that a possible solution would be "to just not put the nails in the house." It was at this point that Arnold had remarked that this was as much as they could expect. He testified, however, that this remark was really made to Puccio. H & K were also the subjects of a discussion in connection with the construction of another house at 2214 Branch Street in Middleton, Wisconsin. This was a con- tract job, the prospective owner being one Sam Mosigin. The Rischmeullers were the general contractors for the construction of the house, and one of their sub- contractors was, apparently, Paul Montalto, who was to do the lathing .5 Montalto in turn hired H & K to do the lathing work. This arrangement was made with H & K on or about January 25, 1961. They were, as usual, to receive $1.25 a bundle for installing the lathing. H & K started their work on January 28, and worked for 2 or 3 days until they were held up by the plumbing. However, they resumed the lathing work in the first week in February and completed it. On February 11, 1961, which would be some days after H & K had completed the lathing work, there occurred a conversation between Montalto and Robert Cleve- land, the business agent of Local 204. February 11 was a Saturday, and about 10 a.m., Cleveland paid a visit to Montalto's home. It seems that Montalto had discharged two of his employees who were members of Local 204, and the object of Cleveland's visit was to attempt to persuade Montalto to rehire them. Cleveland and Montalto were old friends-they had known each other for some 10 or 15 years-and Cleveland also knew Montalto's family. Montalto and Cleveland talked for about an hour, and their conversation ranged over a considerable number of topics that had no relation to the immediate object of Cleveland's visit. As Cleve- land put it: "I have known Paul a long time, I knew his family and I guess we talked of everything." The "everything" included how Montalto's children were doing at school, and the man Montalto's daughter had married. At some point in the con- versation, the names of H & K were mentioned, and Cleveland expressed himself on the subiect. According to Cleveland, he said: "Paul, maybe you'd better dispense with them because in the future it may cause a hardship between our members if my members happen to be working on the same job, it's always a habit of people, you know, these little animosities creep in, then I get complaints out of my people " Montalto's version of the conversation was that, after the discussion of the two men whom he had fired, Cleveland told him that "he had heard a rumor that I hired these two lathers, that Hildebrandt and Kiefer and that I might run into trouble if I kept them on." Then Montalto was asked: "Do you recall, Mr. Montalto, whether he used the word, `would' or `might'?", and he replied: "No, I can't recall." In an effort to refresh his recollection, Montalto was shown a sworn statement, which he had made in February with reference to his conversation with Cleveland, this being shortly after the conversation occurred. After looking at the statement, Montalto still insisted that the word "might" had been used by Cleveland It appears, more- over. that before signing the statement Montalto had insisted that the words "or I might get in trouble" be stricken therefrom, and that these words had been stricken. The record is devoid of any evidence that either Puccio or Arnold ever spoke to the Rischmuellers about the presence of H & K on the Branch Street jobsite The record is enually devoid of any evidence that Puccio or Arnold ever spoke directly to Cleveland about H & K in an effort to induce him to approach other employers, 51 add the qualifying adverb because although Dean Rischmueller testified that his lathing subc"ntractor was Montalto. Montalto himself testified that he received his con- tract from Sam Mosigin, and that he was not a subcontractor 'in the real sense " This seems rather difficult to understand MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 523 or to enlist his support. A conspiracy can hardly be said to be made out by the mere fact that two business agents have offices in the same labor temple, or are affiliated with the same trades council . If indeed there was a conspiracy , the con- spirators were extremely dilatory in attaining their immediate objective , for by the time that Cleveland came to speak to Montalto , he was much too late , the work of H & K having already been completed. What has been alleged . as a threat in violation of some of the provisions of the Act thus turns out to be no more than home gossip between two union business agents who were old friends . Cleveland appears to have been a rather garrulous character, and his garrulity manifested itself in the expression of an opinion that there "might" be trouble in the future if Montalto continued to employ H & K. But even if he said that there "would" be trouble in the same contingency , it would seem to make little difference, for neither form of locution could be regarded as a threat in the circumstances of the case . I find that Cleveland did not threaten Montalto in violation of Section 8(b) (4) (ii) (A) and (B) of the Act. These provisions of the Act , insofar as pertinent to the circumstances of the present case, prohibit labor organizations or their agents from threatening , coercing, or re- straining any person engaged in commerce or in an industry affecting commerce where the object of such conduct is to force or require any self-employed person to join any labor organization or to cease doing business with any other person. The complaint alleges that the threats made to Tetzlaff, Jevne, and Montalto had both of these prohibited objects. The case presents unusual difficulties , both with respect to the merits and the question of jurisdiction . Having' found , however, that no threats were in fact made to Montalto, it seems to me that I need not resolve the conflicts in the testimony relating to the alleged threats to Tetzlaff and Jevne, or consider any of the substan- tive questions of law in the case , for, without Montalto in it, it seems to me that it has not been proven that the Board's jurisdictional standards have been satisfied. The jurisdictional standards in secondary boycott cases appear not infrequently to be rather uncertain and complex . But I think that it would be difficult to find a case that presented more uncertainties and complexities than the present one, which involves not only construction work but the construction of homes built either for sale or under contract for individual owners. In the most recent case of this type,6 the Board took jurisdiction over the employer engaged in the construction of homes because it considered that its business satisfied the $500,000 volume test established for retail enterprises . In a footnote, however, the Board also indicated that it could have asserted jurisdiction if the indirect inflow of the employers had met nonretail standards, and in still another footnote it declared : "While the Board is applying existing standards to the home building operation , it does so, in the absence of any specific standard for this type of operation , leaving open the question of the finality of the application of existing standards in future cases in this area." The application of the precedents in secondary boycott cases is rendered still more difficult in the present case by the uncertainty of the extent of the Jevne construction site affected by the alleged unfair labor practice. While four houses were being con- structed by Jevne on the 500 block of Meadow Lane, H & K had a firm commitment to lath only one of them , and it is wholly problematical whether they would have been involved in the lathing of the others when they were actually ready for lathing. It also does not affirmatively appear whether all of the homes would have been completed and sold during 1961. However, these facts, too, raise a question which I need not decide since , whether the retail or nonretail standard is applied, the combined operations of H & K, Tetzlaff, and Jevne that are relevant appear to be insufficient to satisfy either standard. It is clear that the operations of H & K , if they be regarded,as the primary employ- ers, are insignificant imthemselves in relation to their effect on commerce . It is neces- sary to look, therefore, entirely to the operations of Tetzlaff and Jevne . If the retail standard is applied and the total business of Tetzlaff , which in 1960 was approxi- mately $180,000, and the total business of Jevne , which in 1960 was approximately $250,000, are added the total would be only $430 ,000 which is $70,000 less than the retail standard requires . If, on the other hand, the nonretail standard is applied, the case is in no wise altered. The inflow of goods from outside of Wisconsin into the construction sites of Tetzlaff and Jevne was indirect, and the nonretail standard would require a combined indirect inflow of at least $50,000 . In the case of con- struction operations, however, the inflow is determined, apparently , in terms of that 8 United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Assooia- iion, AFL-CIO, Local Union No . 57 (Atlas Roofing Co., Inc ), 131 NLRB 1267. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portion of the secondary employers' business which is affected by the alleged boycott .7 If the figures which are most favorable to the exercise of jurisdiction are taken, they still fall short of meeting the $50,000 indirect inflow standard. The General Counsel contends that Jevne expended in the construction on Meadow Lane $23,598.12 on goods and materials originating outside the State of Wisconsin, and that Tetzlafl expended in the construction on Marathon Drive $13,226. 93 on goods and materials originating outside the State of Wisconsin . Counsel for the Respondent contends that the figure for Jevne's expenditures should be only $17,796.09. However, even if the General Counsel's figures are accepted, the total would be only $36,825.05, which is $13,274.95 less than the indirect inflow standard of $50,000 requires. The reason for this disagreement of counsel is that the figures for the material purchases by each of the builders are for the most part not exact . They reflect estimates by the builders made on the basis of general experience , supplemented by conversations which they had with suppliers of the materials. Actually, it is doubtful whether the indirect inflow into all three of the jobsites involved in the present proceeding would equal at least $50,000. Upon the basis of the above findings, and upon the entire record in the case, I hereby make the following: CONCLUSIONS OF LAW 1. Local 111, Local 204, and the Council are labor organizations within the meaning of Section 2(5) of the Act. 2. Local 204, and Robert Cleveland, its agent, have not engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act. 3. The operations of Warren H. Tetzlaff and Byron Jevne affect commerce within the meaning of Section 2(6) and (7) of the Act. The extent to which such opera- tions affect commerce is not, however, substantial enough under existing jurisdic- tional standards to warrant the assertion of jurisdiction. [Recommendations omitted from publication.] ' See, for instance , General Drivers, Chauffeurs and Helpers, Local Union No. 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (James D. O'Dell and H . H. Hulme, Jr., d/b /a Ada Transit Mix), 130 NLRB 788. Baker Hotel of Dallas, Inc. and Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. Case No. 16-CA-1382. November 21, 1961 DECISION AND ORDER On January 17, 1961, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner- at the hearing and finds that no prejudicial error was committed. The- rulings are hereby affirmed.' The Board has considered the Inter- ' In cross-examining Basden, a witness for the General Counsel, the Respondent was furnished a prehearing statement which Basden had given to General Counsel in which 134 NLRB No. 51.