Spears-Dehner, Inc.

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW 1. National Gypsum Company has not violated Section 8(a)(1) and (2) of the Act as alleged in amended complaint. RECOMMENDED ORDER It is ordered that the amended complaint herein be, and it is hereby, dismissed. Spears-Dehner, Inc. and Local 297, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. A0-47. November 13, 1962 ADVISORY OPINION This is a petition filed by Local 297, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Petitioner, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. Thereafter, Spears-Dehner, Inc., herein called the Employer, filed a "Response to Petition for Advisory Opinion." In pertinent part, the petition and response allege as follows : 1. There is presently pending in the Whitley Circuit Court, Whitley County, Columbia City, Indiana, herein called the State Court, an injunction proceeding docketed as Case No. 17681 filed on Septem- ber 15, 1962, by the Employer seeking a temporary and permanent in- junction to enjoin the Petitioner and other individual defendants from picketing the Employer's construction site on U.S. Highway No. 30 (U.S. 30) in Whitley County, Indiana,' and from picketing for the purposes of a secondary boycott. After hearing, the State court on September 17, 1962, issued a temporary injunction enjoining any and all picketing at or about the Employer's construction site on U.S. 30 bypass north of Columbia City, Whitley County, Indiana. 2. The Employer, a corporation doing business in Indiana, is engaged in the general road construction business, constructing not only interstate highways but also intrastate highways and performing other types of construction work. On September 17, 1962, at the time of the hearing in the State court for a temporary injunction, the Employer was engaged in highway construction work on U.S. 30 and on the United States Interstate Highway No. 69 (U.S. 69). The value of the construction work on U.S. 30, in which the Employer was 1 U.S. 30 runs from Chicago, Illinois, In and through Indiana and Ohio to the eastern part of the United States. 139 NLRB No. 76. SPEARS-DEHNER, INC. 923 involved on September 15 and 17, amounted to approximately $1,300,000; while the value of the U.S. 69 construction work amounted to approximately $1,900,000. On the U.S. 30 job, the employer used equipment valued at between $700,000 and $750,000, while there re- mained on the U.S. 69 job, equipment valued in the amount of at least $100,000. The equipment was purchased through Fort Wayne, Indiana, but none of it was manufactured there as all of it came from outside of Indiana. 3. The State court has made no findings with respect to the af ore- mentioned commerce data. 4. On September 22, 1962, the Petitioner filed an appeal to the Appellate Court of Indiana from the State court's injunction. Such appeal is in process at the present time. 5. The Employer contends that the Board should advise that it would decline jurisdiction herein because there was no legitimate labor dispute between the Employer and the Petitioner having to do with the construction of interstate or intrastate highways and because neither the material allegations of the complaint, nor the injunction granted, referred to a secondary boycott. Accordingly, the Employer further contends that the work stoppage and the resulting picketing were illegal under Indiana State law and therefore properly enjoin- able by the State court. 6. There is no proceeding pending before the Board involving the parties to the State court proceedings. On the basis of the above, the Board is of the opinion that : 1. The Employer is engaged in the general road construction busi- ness in the State of Indiana, constructing, inter alia, interstate and intrastate highways. The construction of interstate or Federal high- ways as well as intrastate or State highways affects commerce within the meaning of the Act and services rendered for the construction of such highways are considered as having been performed for an instrumentality of interstate commerce.' 2. On or about September 17, 1962, the Employer was engaged in highway construction work on U.S. 30 and U.S. 69, involving construc- tion in the amounts of approximately $1,300,000 and $1,900,000, re- spectively. In addition, the Employer used on these jobs $800,000 to $850,000 worth of equipment which was purchased through Fort Wayne, Indiana, and none of which was manufactured in Fort Wayne, Indiana, as all equipment came from outside of Indiana. 2 See Mohican Trucking Company, 131 NLRB 1174, 1175; J. W. Saltsman, doing busi- ness as Saltsman Construction Company, 123 NLRB 1176, 1179; Madison County Con- struction Co, 115 NLRB 701. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. There is no indication as to the specific amount of the services performed in the construction of the highways and/or of the purchases of equipment made during any particular yearly period. However, it is reasonable to assume that the Employer annually receives in excess of $50,000 from its construction work on Federal highways in In- diana.3 Under these circumstances, as the Employer annually re- ceives in excess of $50,000 for services performed for an instrumental- ity of commerce, we find that its operations satisfy the nonretail jurisdiction requirements of the Board as enunciated in Siemons Mail- ing Service, 122 NLRB 81.4 4. As indicated above, the Employer argues that the Board should advise that it would decline jurisdiction over the Employer's opera- tions because, in the absence of a legitimate labor dispute and of a secondary boycott, the work stoppage and picketing were illegal under Indiana law and properly enjoinable by the State court. In sub- stance, the Employer is urging that the matter in controversy, what- ever it may be, is not cognizable under Sections 8, 9, and 10 of the Labor Management Act of 1947, as amended. We do not agree with this argument. The Board does not presume to render an Advisory Opinion on the merits of any case or on the question whether the subject matter of the controversy is governed by the Act (see Section 101.40(e) of the Board's Statements of Procedure). The Board's Ad- visory Opinions are limited to the jurisdictional issue confronting it, i.e., whether the commerce operations of the Employer are such that the Board would assert jurisdiction over them, assuming, without deciding, that the matter in controversy is cognizable under Sec- tions 8, 9, and 10 of the Act. Accordingly, the parties are advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the facts submitted, including our assumption as to the amount of services rendered by this Employer, the Board would assert jurisdiction over the Employer's operations with respect to disputes cognizable under Sections 8, 9, and 10 of the Act. MEMBER RODGERS took no part in the consideration of the above Ad- visory Opinion. 8 We find It unnecessary to rely upon another Inference , which would also be reasonable to draw from the facts herein, that the Employer annually purchases In Indiana more than $50 ,000 of equipment which was manufactured and originated outside of Indiana. 4 See also cases cited In footnote 2, supra.