IBEW, Local 257

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 257 and Glenn L. Whitman and Robert R. Jolley, d/b/a Osage Neon Plastics. Case AO- 114 June 5, 1969 ADVISORY OPINION This is a petition filed on November 5, 1968, by International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 257, herein called the Union, for an Advisory Opinion pursuant to Sections 102 .98 and 102.99 of the National Labor Relations Board Rules and Regulations, Series 8, as amended . On November 14, 1968 , Glenn L. Whitman and Robert R. Jolley , d/b/a Osage Neon Plastics, herein called the Employer, filed a response to the petition . On December 2. 1968, the Union filed a brief in support of the petition. In pertinent part , the petition, the response and the brief allege as follows: 1. There is presently pending in the Circuit Court of Cole County, Missouri, herein called the State Court, an injunction proceeding (Cause No . 24029) filed by the Employer seeking to enjoin the Union and certain named representatives from picketing and causing work stoppages at the construction site at South 10 Mile Drive and U. S. Highway 50 West, Cole County, Missouri, where Mr. and Mrs. Eugene J. Knipp had contracted for the construction of a building on which the Employer and other contractors were working . The new building was leased by the Knipps to Knipp Motors Inc.,' herein called Knipp Motors , an Oldsmobile and Cadillac dealer . The injunction petition alleged that the intent and purpose of the Union 's picketing of the construction site was to "establish a secondary boycott." 2. The Employer was engaged in erecting and installing on the building at the construction site some panel signs which belonged to Knipp Motors. The signs had been removed from the auto dealer's old premises, located at 611 West Dunklin, Cole County, Missouri . In furtherance of its dispute with the Employer, the Union picketed for a few hours while the signs were being removed . Also picketing occured whenever the Employer's vehicles and/or employees approached or attempted to enter upon the construction site in order to install and erect the signs of Knipp Motors . The picketing continued until October 11, 1968, when the State Court entered an ex parte order enjoining the picketing. Subsequently, it denied the Union 's October 18, 1968, motion to dismiss the temporary restraining order . Thereafter, on November I, 1968, the Kansas City State Court of Appeals, State of Missouri, denied the Union's petition for a Writ of Prohibition. 3. The Employer, a partnership with its principal place of business at 1405 Indiana Street , Columbia, Missouri, is generally engaged in the sign business in central Missouri, and employs 37 employees. 4. Knipp Motors is a corporation engaged in the retail sale , servicing and leasing of new Oldsmobiles and Cadillacs and used automobiles . Its old place of business was located at 611 West Dunklin Street, Cole County, Missouri, and its current place of business is in the new building constructed for the Knipps and leased by them to the Knipp Motors, located at South 10 Mile Drive and U. S. Highway 50 West, Cole County, State of Missouri. During the fiscal year ending July 31, 1968, the gross sales of Knipp Motors, exceeded $ 1,000,000. 5. On October 4, 1968 , the Employer filed a charge in Case 17-CC-353 with the Board's Region 17 Office, alleging , inter alia, that the Union's picketing induced and encouraged individuals employed by Knipp Motors and other persons= to strike with the object of causing such persons to cease business with the Employer, thereby violating Section 8(b)(4)(B) of the Act. Pursuant to the Employer 's request to withdraw the charge, the Regional Director of Region 17 on October 10, approved the withdrawal . Subsequently , on October 15, he advised the Union that, in approving the withdrawal, he had made no determination as to the Board's jurisdiction over the Employer or the subject matter of the charge. 6. No representation or unfair labor practice proceedings concerning this labor dispute are now pending before the Board. 7. The State Court has made no findings concerning commerce data relevant to the Board's jurisdiction. 8. In urging that the Board issue an Advisory Opinion that it would assert jurisdiction herein, the Union argues that: ( 1) its picketing activity arguably constituted conduct either protected by the Act or prohibited by Section 8(b)(4) of the Act; (2) the commerce data of Knipp Motors, a secondary employer, whose two premises were picketed by the Union must be considered in determining the jurisdictional question ; and (3 ) since the Board would assert jurisdiction over Knipp Motors whose operations were affected by the picketing , the Board should advise that it would also assert jurisdiction herein. 9. On the other hand , the Employer contends that it is not engaged in interstate commerce and does not come within the Board 's jurisdiction. It concedes, in effect, that Knipp Motors has an annual volume of retail sales in excess of $1 million. It argues, however, that Knipp Motors is "a separate entity and a complete stranger to [the Employer] and there is no connection whatsoever, let alone of that of employer , primary or ' Eugene J. Knipp is the President of Knipp Motors Inc. 176 NLRB No. 56 'Stokes Electric Co., Roy Sheperle Construction Co., and Case Painting and Decorating Co. IBEW, LOCAL 257 secondary," and that therefore Knipp Motors' operations should not afford a basis for the assertion of jurisdiction herein. On the basis of the above, the Board is of the opinion that: 1. The Employer is a nonretail enterprise engaged in the sign business in Columbia, Missouri. As specific commerce data pertaining to the Employer's operations has not been submitted, we are unable to make a determination as to the Board's jurisdiction over the Employer. We, therefore, shall assume for the purpose of this Advisory Opinion that the Employer's operations do not meet the Board's standards for the assertion of jurisdiction over it. 2. Knipp Motors is a retail enterprise which has been engaged in the sale, servicing and leasing of new Oldsmobiles and Cadillacs and used automobiles at its old premises, 611 West Dunklin Street, Cole County, Missouri, and at its new premises, South 10 Mile Drive and U. S. Highway 50 West, Cole County, Missouri. 3. The Board's current standard for asserting jurisdiction over a retail enterprise falling within its legal and statutory jurisdiction is a gross annual volume of business of at least $500,000.' Knipp Motors' annual gross volume of business exceeds $1 million and thus satisfies the Board's monetary standard for retail enterprises. Although normally some proof must be made of legal and statutory jurisdiction, it is not unreasonable to assume, for purposes of this Advisory Opinion, that, in view of Knipp Motors' gross annual volume of business of more than $1 million in sales, servicing and leasing of automobiles, particularly new Oldsmobiles and Cadillacs, most of which presumably were shipped from outside of Missouri, the Board's legal and statutory jurisdiction over Knipp Motors does in 'Carolina Supplies and Cement Co., 122 NLRB 88, 89. 425 fact exist and can be established. Accordingly, the Board would assert jurisdiction over the operations of Knipp Motors. 4. In cases involving secondary activity by a union which may be violative of Section 8(b)(4) of the Act where, as here assumed, the employer's operations do not meet the Board's jurisdictional standards, 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 Union's picketing of the Employer at Knipp Motors' old and new premises was secondary activity which affected the entire retail operations of secondary employer Knipp Motors, over whose operations, the Board as indicated above, would assert jurisdiction. In these circumstances and in accord with established Board precedent the Board would assert jurisdiction over the primary Employer and Knipp Motors, the secondary employer affected by the Union's activity whether or not such activity is, in fact, violative of Section 8(b)(4)of the Act. Accordingly, the parties are therefore advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that on the allegations here present, the commerce operations of the primary employer and those of secondary employer, Knipp Motors at its old and new premises, the locations affected by the Union's secondary conduct, are such that the Board would assert jurisdiction with respect to labor disputes cognizable under Sections 8 or 10 of the Act." 'George F Paravieini, Individually and trading as D.L.W. Transportation Company, 145 NLRB 212. 'Ibid. See also Madison Budding do Construction Trades Council, Wrllham Arnold. at al. (H & K Lathing Company ), 134 NLRB 517. 'ln view of our determination herein, it has been unnecessary to consider the commerce data of the other neutral employers involved in the Union's picketing activity at the construction site