Sueji Kanemoto

SUEJI KANEMOTO, GENERAL CONTRACTOR Sueji Kanemoto , General Contractor and International Association of Operative Plasterers and Cement Masons of the United States and Canada, Local No. 630, AFL-CIO, and International Union of Bricklayers, Masons and Plasterers of America, Local 1, AFL-CIO. Case AO-97. May 17, 1967 ADVISORY OPINION This is a petition filed on November 14, 1966, by International Association of Operative Plasterers and Cement Masons of the United States and Canada, Local No. 630, AFL-CIO, and International Union of Bricklayers, Masons and Plasterers of America, Local 1, AFL-CIO, herein called the Petitioners, pursuant to Sections 102.98 and 102.99 of the National Labor Relations Board Rules and Regulations, Series 8, as amended. On November 21, 1966, the Petitioners filed an affidavit sworn to November 17, 1966, in support of their petition. On January 3, 1967, Roy O. Hoffman, Regional Director for Region 20 (which includes Subregion 37), herein called the Regional Director, moved to intervene on the basis of his administrative dismissal, on jurisdictional grounds, of a representation petition in Case 37-RM-70, filed by Sueji Kanemoto, herein called the Employer, and involving the Petitioners.' Subsequently, on January 9, 1967, the Petitioners filed an answer to the Regional Director's motion to intervene in which, among other things, they again requested an evidentiary hearing. On April 14, 1967, the Regional Director filed a supplement to his motion to intervene. No party filed an answer to the supplement. The Regional Director's motion to intervene as supplemented is hereby granted. The Petitioners' request for an evidentiary hearing is hereby denied as the Board's Advisory Opinion procedures do not provide for or contemplate such a hearing. 2 In pertinent part, the petition, supplement thereto, affidavit in support of the petition, intervention, and answer thereto, and supplement to the intervention, allege as follows: 1. Presently before the Hawaii Employment Relations Board, State of Hawaii, herein called the State Board, is a representation proceeding (Docket 66-22) initiated by the Employer on November 4, 1966, and involving the Petitioners. 2. The Employer is a contractor engaged in the building and construction industry in Maui, Hawaii. It is alleged in the petition herein on information and belief that "during the past year" the Employer ' On December 28, 1966, counsel for the Petitioners filed a "Petition for Review " The Board regards that petition as a supplement to the petition for an advisory opinion, and has considered the information contained therein and the request for an evidentiary hearing The request is disposed of below 727 "purchased and received materials valued in excess of $50,000 directly and indirectly from places located outside the State of Hawaii." In the affidavit submitted in support of the petition, the affiant, an official of one of the Petitioners, avers generally that the materials used by the Employer in his construction work "during the past year" were purchased by the Employer from local suppliers "who had purchased and received them from outside the State of Hawaii," and that "the total value of these materials was in excess of $50,000." The affiant, in addition, asserts broadly that "on the basis of his personal investigation, and on information received from other sources which he believes to be true and correct," the Employer, during the year preceding the filing of the petition with the State Board, "did over $150,000 business as a general and specialty contractor in the County of Maui, Hawaii." Also, in their answer to the motion to intervene, the Petitioners not only deny certain specific statements made in the motion, but allege, among other things, that during the 12 months preceding November 14, 1966, construction permits were issued to the Employer as a general contractor for work at the original estimated cost of $94,732.20, and that additional work was performed by him as a subcontractor. They claim in said answer "on the basis of their experience in the construction industry, that between 50 percent and 60 percent of total construction costs are material costs, and that at least 90 percent of all building materials used in Hawaii originate outside the State." Hence, they conclude, the Employer purchased and received building materials from outside Hawaii in the amount of approximately $50,000 even for the year 1965, when, as indicated below, the Employer, according to his figures, made sales totaling $93,020.46. 3. On November 14, 1966, the Employer filed a representation petition with the Board, Case 37-RM-70, seeking an election among his employees. On December 16, 1966, the Regional Director dismissed the petition because "it would not effectuate the purposes of the Act to assert jurisdiction herein." No appeal was taken by the Employer from this administrative dismissal. 4. In his intervention, the Regional Director sets forth information furnished by the Employer and authenticated by a public accountant in all affidavits sworn to December 28, 1966, and April 4, 1967, and made part of the intervention. The public accountant states in his affidavits that the Employer did not receive "from any source materials valued at $50,000 or in excess thereof in any recent 12-month period," and that the Employer's total sales for the ' See Sections 102 98 and 102 104, the Board Rules and Regulations, and Section 101 39 of the Statements of Procedure. Arena Lounge, Inc , 145 NLRB 315. Midwest News Reel Theaters, Inc, 149 NLRB 424 164 NLRB No. 105 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year 1965 amounted to $93,020.46, of which only $44,645.09 was made to customers engaged in business; the remainder reflects sales to individuals. The public accountant also avers in his affidavits that during calendar year 1966, the Employer's purchases of materials and supplies totaled $43,604.64, while his total sales amounted to $123,440.52 of which only $43,941.06 were commercial while the remainder were individual personal accounts. On the basis of the above, the Board is of the opinion that: 1. The Employer is engaged in a nonretail business as a contractor in the building and construction industry in Maui, Hawaii, where he deals with commercial enterprises and with individuals. 2. The Board's current standard for the assertion of jurisdiction over nonretail enterprises within the Board's statutory jurisdiction requires an annual minimum of $50,000 out-of-State inflow or outflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81. 3. The Employer and a public accountant, the primary and most immediate sources of information insofar as the Employer's books and records and financial transactions are concerned, have supplied from their personal knowledge dollar and cent commerce data which in material respects is not impeached or placed in serious doubt by any specific and direct evidence submitted by the Petitioners. On the basis of the information furnished by the Employer and his accountant , it does not appear that either the Employer's annual out-of-State outflow, direct or indirect, or his annual out-of-State inflow, direct or indirect, amounts to $50,000. Consequently, the Board's discretionary standards for the assertion of jurisdiction over his nonretail operations have not been met. Accordingly, the parties are advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that the Board will not exercise jurisdiction over the Employer's operations.