New York Typographical Union No. 6

National Labor Relations Board - Board Decisions

Jan 21, 1977

227 N.L.R.B. 1344 (N.L.R.B. 1977)

1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Typographical Union No. 6, AFL-CIO and dations based upon the evidence received and the
Thermo-Craft Press, Inc. Case 2-CC-1442 record as a whole, and that, following service of such
January 21, 1977
DECISION AND ORDER REOPENING
RECORD AND REMANDING
PROCEEDING TO ADMINISTRATIVE
LAW JUDGE
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On October 15, 1976, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief in which the
Charging Party concurred.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to set aside the recommended Order
of the Administrative Law Judge.
The Administrative Law Judge dismissed the com-
plaint in its entirety on the ground that the General
Counsel and Charging Party did not establish that the
operations of Thermo-Craft Press, Inc., met the
Board's jurisdictional standards. The General Coun-
sel excepted to this ruling on the basis, inter alia, that
the Administrative Law Judge abused his discretion
by refusing to grant a 10-minute adjournment for the
purpose of obtaining witnesses to testify regarding the
origin of the paper products purchased by Raised
Print Corporation.' The requested adjournment
would not have prejudiced anyone. We therefore
agree with the General Counsel that, in the interest of
justice, the case should be remanded for the purpose
of taking additional testimony on the question of
jurisdiction.
ORDER
It is hereby ordered that the recommended Order of
the Administrative Law Judge be, and it hereby is, set
aside.
IT IS FURTHER ORDERED that the record in this
proceeding be, and it hereby is, reopened, and that a
further hearing be held before Administrative Law
Judge Melvin J. Welles for the purpose of receiving
additional testimony on the issue of jurisdiction.
IT IS ALSO FURTHER ORDERED that, upon conclusion
of the hearing, the Administrative Law Judge shall
prepare and serve on the parties a decision containing
findings of fact, conclusions of law, and recommen-
227 NLRB No. 202
decision on the parties, the provisions of Section
102.46 of the Board's Rules and Regulations, Section
8, as amended, shall be applicable.
I The Respondent 's answer admits that Thermo -Craft and Raised Print
constitute a single integrated business enterprise
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES , Administrative Law Judge: This case
was heard at New York City , New York , on August 4, 1976,
based on charges filed June 3 , 1976, and amended June 14,
1976, and a complaint issued June 29, 1976 , alleging that
Respondent Union violated Section 8(b)(4) (i) and (ii) and
(B) of the Act . The General Counsel has filed a brief
(concurred in by the Charging Party).
Upon the entire record in the case, including my
observation of the witnesses , I make the following:
FINDINGS OF FACT
The Issues
This is a "secondary boycott" case, the General Counsel
alleging that Respondent Union's picketing at a particular
location was secondary because the object thereof was a
neutral employer, Thermo-Craft Press, Inc. Respondent, in
its answer, denied having violated the Act.' Respondent did
not, in its answer, admit thejunsdictional allegations of the
complaint.2 It was therefore incumbent upon the General
Counsel, or Charging Party, to prove facts that would bring
this case within the Board's jurisdictional standards. For
reasons stated below, I find that they have not met that
burden.
The Commerce Facts
In secondary boycott cases, the Board takes into account,
for jurisdictional purposes, the businesses of both the
primary and the secondary employers involved (including
the "entire business of the secondary employer" at the
affected location). McAllister Transfer, Inc., 110 NLRB
1769, 1772 (1954). All the testimony concerning commerce
facts in this case came from Morton Zamore, president of
Thermo-Craft Press, Inc.
On direct examination, Zamore testified as follows:
I Respondent did not file a brief, nor did it explicate at the hearing the
basis for its defense to the unfair labor practice charges It was evident from
the testimony elicited by Respondent 's counsel, however, that its position is
based on the grounds that ( I) the alleged "neutral" is in fact a successor to
the "primary" employer , and (2) its picketing was not to cause any cessation
of business , but was to protest the asserted "lockout" of employees of the
predecessor employer and to securejobs for those locked out employees with
the successor. I do not pass on the merits of the case, in view of my
determination , set forth hereafter, to dismiss it on jurisdictional grounds I
do, however, wish to express my substantial doubts that the General Counsel
has made out a violation of Sec 8(b)(4) of the Act
2 As Respondent is a labor organization , it was not, of course, in any
position to know the commerce facts of any of the employers which may
have been involved herein
NEW YORK TYPOGRAPHICAL UNION NO. 6 1345
Q. When did Raised Print actually begin its pro-
duction operations?
A. Around January 1st, '76.
Q. From that time until the present time what is the
total value of its purchases directly from outside the
State of New York?
A. Approximately thirty-six and a half thousand
dollars.
Q. What type of goods, supplies, and materials
would that comprise?
A. Paper and other supplies used in the printing
operation.
Q. Now, the January 1st date you gave was that
when Raised Print began making purchases from out of
the State or when it began operating?
A. Started making purchases then, correct.
Q. Does Raised Print purchase goods, supplies, and
materials directly from suppliers located outside the
State of New York?
A. Yes, sir.
On cross-examination by Respondent's counsel, Zamore
testified as follows:
Q. (By Mr. Sheehan) What is the name of any
supplier of goods to your firm that is located outside the
State and where is it located?
A. William House Paper.
Q. Where is that located?
A. They have branches in Pennsylvania and other
places. The mills are in Pennsylvania.
Q. Isn't that bought from a plant in Brooklyn?
A. It's ordered in Brooklyn but shipped in from
Pennsylvania and other States.
Q. Is it shipped to you or to the plant in Brooklyn?
A. I don't know where it comes from.
Q. Is that the same supplier of paper before you
acquired the interest of Thermo-Craft in December of
last year?
A. I don't know who they may have bought from.
Q. In the month of January '76, how much paper
did you buy from that firm?
A. Through the end of January the purchases were
about $1900 I believe. I think through January it was
$1900, that's right. I believe it was through January if
those records are all complete.
Q. What paper did you look at to arrive at that
figure?
A. I would have to go through these and total them
up. These are all the invoices. I would have to take a
total of all these. I do have a total of all the actual
purchases totaled up. Forget about the statements.
These are the actual totals from the purchases of
individual bills. I have a total here. This is what it came
out to.
Q. That shows from the 1st of January 1976 to
date?
A. Yes. They might have included some in Decem-
ber, possibly.
Q. So talking about the particular supplier, William
House, your memo shows a total of $9,355.45, which
may have come from Brooklyn, New York?
A. I have no idea where it comes from.
Q. Now, the other items which we used to give the
testimony earlier, about thirty-six and a half thousand
dollars, where is Baldwin Paper located?
A. Sales offices are in Manhattan but the paper
comes from out of town.
Q. Do you know where it comes from?
A. I asked the salesman and he says all over the
country.
Q. You don't know from your own knowledge?
A. It comes from out of town.
Q. What town?
A. All over the country.
Q. Where is Aggio Cards located?
A. They are also in Brooklyn.
Q. That shows of the $3,600 you purchased $1,416.
Where is Saxon Paper?
A. They have offices in New York and L.A.
Q. Warehouses?
A. They have warehouses all over the country, too.
Q. Do they have one in Brooklyn?
A. Not to my knowledge.
s s s
Q. (By Sheehan) Where is Gin Card and Paper
Company?
A. Sales offices are in New York.
Q. Do they have a warehouse in New York?
A. Yes.
Q. Does your paper come from that warehouse?
A. I don't know where it comes from.
Q. That shows a total purchase of $14,919.27.
A. Correct.
Q. So when you testified earlier that $36,500
approximately of purchases were those that came from
out of State of the State of New York, that is not
factually so?
A. It is so as to what I was told.
Q. But you don't know that to be a fact, do you?
A. I was just told that it comes from out of New
York.
Q. But you don't know if it comes-
A. I can't tell you specific points where it came
from Pennsylvania, Ohio, Massachusetts, or what.
Q. Have you ever seen a truck deliver these items
that you have been testifying about?
A. No.
Q. Do you have any return addresses on them?
A. I have never noticed it. I never looked.
Q. Have you ever known a Brooklyn address for
any of these deliveries?
A. I never examined it.
Q. So you have no personal knowledge of any of
these items as to where the goods originated from as to
delivery -
A. Except I was told from the paper people we deal
with it comes from out of State.
Q. When did you make that inquiry?
A. I asked them where the paper comes from.
Q. You asked them that last December when you
went into business?
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Over a period of time I asked them. I know for a
fact paper - most of the mills are out-of-state.
Zamore's testimony on direct examination demonstrated,
on the face of the testimony, a "direct inflow" of $36,500
from January 1, 1976, to August 4, 1976, the date of the
hearing herein, an amount which, projected for a full year,
comes to over $50,000.3
Zamore's testimony on cross-examination, however,
presented a different picture entirely. Thus, after first
stating , with respect to purchases from William House
Paper, that the purchases from that firm, totaling $9,355.45
(of the $36,500 total) were "ordered in Brooklyn but
shipped in from Pennsylvania and other States," when
asked, "Do the goods you receive come from Brooklyn,
New York," Zamore replied, "I have no idea," and he
repeated, "I have no idea where it comes from" to the
subsequent question "So talking about the particular
supplier, William House, your memo shows a total of
$9,355.45, which may have come from Brooklyn, New
York?"
Asked where the purchases from Baldwin Paper Compa-
ny came from, Zamore testified, "I asked the salesman and
he says all over the country." With respect to purchases
from Gin Card and Paper Company (a total of $14,919.27),
Zamore testified, "I was just told that it comes from out of
New York." Finally, when asked, "So you have no personal
knowledge of any of these items as to where the goods
originated from as to delivery," Zamore said, "Except I was
told from the paper people we deal with it comes from out-
of-state."
Thus, even accepting as proof that purchases of paper
from out of the State Zamore's "I was told," the $9,355.45
of purchases from William House Paper were not shown to
have come from outside New York State; for, as to them,
Zamore had "no idea where it comes from." Taking that
amount from $36,500 leaves a projected figure of only
3 The precise figure is $16,847, although "precise" may be too strong a
word, as Zamore's testimony was stated in "approximate " terms Indeed, as
he had earlier testified that the exact date Thermo-Craft began operations
was December 24, 1975, the "precise" figure projected from the "approxi-
mately thirty-six and a half thousand dollars" total purchases would be
$59,638
a Or $44,352 taking the December 24, 1975, starting date Zamore
testified, indeed , that the total "might have included some in December,
possibly "
S 1 do regard this argument as fallacious as applied to this case, however,
obviously there was no basis for a hearsay objection to Zamore's testimony
$46,995,4 insufficient to meet the Board's indirect inflow
standard of $50,000. Siemons Mailing Service, 122 NLRB 81
(1958).
In short, there is no proof, whether based on competent
testimony or on hearsay testimony, to establish that
Thermo-Craft received goods from out of state, whether
directly or indirectly, in a sufficient amount to satisfy the
Board's established jurisdictional standards. I need not,
therefore, reach or resolve the General Counsel's and
Charging Party's contention that I should accept the
"hearsay testimony" because "at no time did Counsel for
Respondent object to the testimony of Zamore that his
suppliers informed him that the paper he purchases from
them originated outside the State of New York." 5
The General Counsel and the Charging Party also request
that I take "official notice" of an American Paper Institute
table showing that "only about 3 percent (2,103,000 out of
59,934,000 short tons) originates in New York State" out of
all the paper and paperboard produced in the United
States, using the year 1974 as, a sample . I do take such
"notice," and can only remark that New York, I out of 50
States, thus produces 1 percent more of the total paper
produced in the United States than an even distribution
among the States would dictate. Surely, there is room out of
2,103,000 short tons produced in New York for the total
purchase of Thermo-Craft to have originated in that State.
Indeed, it seems probable that at least some of it would
have.
For the foregoing reasons, I am constrained to conclude
that the General Counsel and Charging Party have not
established that Thermo-Craft's operations meet the
Board's jurisdictional standards. There being no other basis
for asserting jurisdiction urged or present herein, I will
recommend that the complaint be dismissed.
[Recommended Order for dismissal omitted from publi-
cation.]
on direct examination , which was only that all the purchases were from out
of State Manifestly , counsel for Respondent was not required to object to his
own questions , or Zamore 's answers to them , on cross-examination,
questions designed to elicit , and succeeding in doing so, that the basis for
Zamore 's testimony on direct was in fact what he was told, not what he
"knew " Were General Counsel' s argument to be accepted, we would have a
truly "Catch-22" situation of Respondent not being about to probe the basis
for Zamore's testimony on direct examination , for he would have to object to
his own questions as seeking to elicit hearsay , and thus be unable to show
that the testimony on direct was "hearsay."