Truck Drivers Local Union No. 649

National Labor Relations Board - Board Decisions

Feb 23, 1951

93 N.L.R.B. 386 (N.L.R.B. 1951)

3386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRUCK DRIVERS LOCAL UNION No. 649, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL and JAMESTOWN BUILDERS EXCHANGE, INC. Case
No. 3-CC-19. February 93,1951
Decision and Order Dismissing Complaint
On September 27, 1950, Trial Examiner George A. Downing issued
an Order granting the Respondent's motion to dismiss the complaint
in the above-entitled proceeding, on the ground that the assertion of
jurisdiction would not effectuate the policies of the Act. Thereafter,
the General Counsel filed a request for review of the Trial Examiner's
-Order, together with a supporting brief.
To the extent here material, 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 Order issued by the Trial Examiner,
.a copy of which is attached hereto, the General Counsel's request
for review and supporting brief, and the entire record in this case,
and hereby adopts the findings and conclusions of the Trial Examiner,
with the following additions and modifications :
The complaint in this case alleged that on or about April 10, 1950,
-the Respondent, in violation of Section 8 (b) (4) (A) of the Act,
engaged in, and induced the employees of Scalise Bros. Construction
,Co., and Carlson Builders to engage in a concerted refusal to handle
_goods or perform services, an object thereof being to force Scalise and
-,Carlson to cease doing business with Pearl City Fuel Corporation and
-various other members of Jamestown Builders' Exchange, Inc.
The record shows, and the Trial Examiner found, that on April 10,
1950, the Respondent picketed the trucks of Pearl City Fuel Corpora-
tion (herein called Pearl City) when they arrived at the site of a local
construction job of Scalise Bros. Construction Co. (herein called
.Scalise) and another such job of Carlson Brothers (herein called
Carlson). The pickets carried signs stating that Pearl City was
unfair to the Respondent. All three employers were members of
.Jamestown Builders Exchange, which was organized to represent
its members in collective bargaining.
Upon the evidence in the record the Examiner found that the asser-
tion of jurisdiction in this case would not effectuate the policies of-the
Act, and he accordingly granted the motion to dismiss.
In a series of cases the Board has recently announced certain quan-
.titative and other standards which will be used in determining how it
:will exercise its discretion to assert or not assert jurisdiction in a par-
93 NLRB No. 51.
TRUCK DRIVERS LOCAL UNION NO. 649 387
titular case.' While these standards are fully applicable to cases
involving an alleged secondary boycott in violation of Section 8 (b)
(4) (A), the question arises as to how the jurisdictional facts can best
be computed in such cases for the purpose of determining whether
the operations involved meet the Board's jurisdictional tests. By its
very nature the effect of a secondary boycott extends beyond the opera-
tions of the primary employer with which the union is engaged in
a dispute, and reaches the secondary employers whom the union is
attempting to force or require to cease dealing with the primary
employer by means prescribed in Section 8 (b) (4). It is clear that
the Board must take cognizance of this fact when considering whether
it will effectuate the policies of the Act to assert jurisdiction in such
cases.
Accordingly, in determining whether the Board will assert juris-
diction in cases in which secondary boycotts are alleged, we must
consider not only the operations of the primary employer, but also
the operations of any second employers, to the extent that the latter
are affected by the conduct involved. Of course, if the operations
of the primary employer alone meet the minimum requirements under
the Board's current policy, jurisdiction should be asserted without
further inquiry. Where, however, the operations of the primary
employer do not satisfy the Board's jurisdiction standards we must,
in addition, consider the operations of the secondary employers, but
only insofar as such operations are affected by the'i.lleged unlawful
boycott. If, taken together, the business of the primary employer
and that portion of the secondary employers' business which is affected
by the alleged boycott meet the minimum standards, jurisdiction
ought to be asserted.
We turn then to the application of these principles to the facts
in the instant case. As noted above, the conduct complained of con-
sisted solely of the Respondent's picketing on April 10, 1950, of the
trucks of Pearl City located at the site of a construction job of Scalise,
and of similar picketing on the same date on a construction job of
Carlson. We shall assume for the purpose of this decision-without
so deciding-that this picketing was designed to induce or encourage
employees of Scalise and Carlson to engage in a strike or a refusal
to handle the products of Pearl City, with the object of forcing or
requiring Scalise and Carlson to cease doing business with Pearl
City. As such, the conduct complained of constituted a secondary
boycott, in which Pearl City-with whom the Respondent was then
'Federal Dairy Co, Inc, 91 NLRB 638 , Do,n's House of Miracles, Inc , 91 NLRB
632, hollow Tree Lumber Company, 91 NLRB 635, The Rutledge Paper Products, Inc,
91 NLRB 625, The Borden Company, 91 NLRB 628, WBSR, Inc., 91 NLRB 630, Local
Transit Lines, 91 NLRB 623, Westport Moving and Storage Company, 91 NLRB 902.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in a dispute over the hiring of nonunion drivers and whom
the pickets named as "unfair"--was the primary employer, and Sca-
lise and Carlson were the secondary employers.
We have carefully examined the evidence in the record-as fully
detailed in the Trial Examiner's Order-with respect to the opera-
tions of Pearl City, and are satisfied that these operations do not.
themselves meet the Board's present standards for the assertion of-
jurisdiction .2 And, consistent with the test described above, we have,
also considered such evidence as the record contains with respect to
the operations of Scalise and Carlson at the two local construction
projects where the picketing complained of occurred. The record'
does not disclose that the quantity of out-of-State materials used on_
these projects, or any other interstate aspects of these jobs, when
added to the operations of Pearl City, satisfies the minimum require-
ments for the assertion of jurisdiction.
The question remains, however, as to the weight to be given to the,
fact that-Scalise and Carlson, together with Pearl City and a number
of other companies, were members of Jamestown Builders Exchange.
The General Coiuisel urges that the jurisdictional facts pertaining to,
all of the members of the Exchange should be considered in deter-
mining whether to assert jurisdiction in this case. In support of
this position the General Counsel argues that the boycott involved
herein was, in fact, directed against all the members of the Exchange.
In particular the General Counsel directs our attention to the evi-
dence which shows (1) that on one occasion in the fall of 1949 the-
Respondent discussed with the Exchange the unionization of its mem-
bers' truck drivers, and (2) that on April 21, 1950, the Respondent,
as a member of the Jamestown Building and Construction Trades
Council, participated in a general strike called -by the Council to
induce the Exchange to negotiate with the Council on miscellaneous
grievances, and on the same date actually participated in negotiations
with the Exchange looking to the unionization of truck drivers em-
ployed by the member companies. It is thus asserted that the Re-
spondent's conduct on April 10 was merely an incident in its campaign
to obtain the support of the Exchange and its members in the Re-
spondent's organizing activities.
On the record as a whole, however, we find no justification in the
instant case for measuring the jurisdictional facts by considering
the operations of any employers other than Pearl City, Scalise, and
Carlson, those directly involved. It may well be that in some cases
During 1949 Pearl City purchased $87,500 worth of materials out of State This factor
alone would not support the assertion of jurisdiction Federal Dairy Co, Inc, supra
During 1949, Pearl City made sales of $190,000, all to local customers The record does-
not contain sufficient evidence as to the amount sold to each customer of the commerce
operations of these customers to enable us to determine whether jurisdiction may be asserted:
on the basis of such sales. See Hollow Tree Lumber Company, supra
TRUCK DRIVERS LOCAL UNION NO. 649 389
the record will demonstrate that a secondary boycott, in fact, involved
more employers than those at whom the union's conduct was immedi-
ately directed, and was part of a general plan to bring secondary
pressure upon employers other than those actually involved in the
specific conduct complained of.3 But this is not such a case. Here
the picketing followed the breakdown of negotiations which had
been carried on directly between Pearl City and the Respondent, with-
out any intervention by the Exchange, and concerned a. category of
employees as to whom the Exchange had not bargained. The picket-
ing was confined to trucks of Pearl City, with signs which named only
Pearl City as "unfair," and such picketing was discontinued 'after the
-first day. In these circumstances we can only conclude that the al-
leged unlawful boycott arose solely out of a dispute with Pearl City;
that it was directed solely against that employer; and that it involved
no secondary employers other than Scalise and Carlson, on whose
premises the picketing was conducted. Neither the vague and in-
conclusive discussion with the Exchange on one occasion more than
tii' months before the picketing nor the fact that 11 days after this
picketing the Respondent may have participated in conduct which
was directed against all members of the Exchange is, in our opinion,
sufficient proof that the picketing stemmed from a dispute with the
Exchange.4
Under all the circumstances, we therefore conclude, as did the Trial
Examiner, that it will not effectuate the policies of the Act to assert
.jurisdiction in this case, and we shall accordingly dismiss the
complaint.
Order
IT Is ITEREBY ORDERED that the complaint issued herein against the
Respondent, Truck Drivers Union No. 649, International Brother-
3 In secondary boycott cases as in other types of cases, the Board will determine the
exercise of jurisdiction by considering the total impact of the alleged conduct E. g.
Carpenter and Skaer, 90 NLRB 417
4 The contrary view of the General Counsel and our dissenting colleagues that the
picketing of April 10 was aimed at the Exchange seems inconsistent, in any event, with
the General Counsel 's position on the merits . On the one band , we are urged to find,
for the purpose of asserting jurisdiction , that the Respondent 's conduct on April 10 was
attributable to a dispute between the Respondent and the Exchange , and, while ostensibly
directed against Pearl City, was, in fact , aimed at the entire membership of the Ex-
- change , including Carlson and Scalise On the other hand , the General Counsel would
in effect have us find , as to the merits , that Carlson and Scalise were-distmterested parties
in the dispute which gave rise to the picketing of their premises on April 10 ; for, unless
they were disinterested parties in such dispute, the picketing would not violate Section
8 (b) (4) (A) of the Act. See The Pure Oil Company, 84 NLRB 315; IBFW v N. L. R. B.,
181 F 2d 34, cert. granted 71 S Ct 278
However, we cannot treat Scalise and Carlson, together with the other members of the
Exchange, as parties to such dispute for one purpose , and as not parties thereto for other
purposes . Accordingly , even if we were to agree with the General Counsel and our dis-
senting colleague that, for jurisdictional purposes , Carlson and Scalise , among others,
were involved in the primary dispute in this case , we would be required to hold that the
picketing of the premises of Scalise and Carlson on April 10 was for that reason primary
action, and so did not violate Section 8 (b) (4) (A) of the Act
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, be, and it hereby is, dismissed.
MEMBER REYNOLDS, dissenting :
I cannot agree with my colleagues that it will not effectuate the.
policies of the Act to assert jurisdiction in this case.
As the majority points out the Board has recently announced cer-
tain standards which it will use as guides for the exercise of its dis-
cretion in asserting jurisdiction in particular cases .-5 These an-
nounced standards were intended to effectuate the Board's declared'.
policy that it will assert jurisdiction in proceedings involving enter-
prises whose operations have, or at which labor disputes would have,,
a pronounced impact upon the flow of interstate commerce 6 The.
Board contemplated when, it announced the afore-mentioned stand-
ards that they were not all-inclusive and cases would arise which+
would require extension of'the standards. Where, as in this case, the
proceeding involves more than one employer the impact upon inter-
state commerce of the labor dispute cannot be gauged by the opera-
tions of each employer considered separately and apart from the op-
erations of the other employers involved. Thus, in Carpenter d,
Skaer, Inc., et al.,7 the Board asserted jurisdiction in a case involving-
employers who were members of an employer association because the
alleged unfair labor practices were attributable to the association and
were, the result of the application of a common labor policy by the
association on behalf of its members.8 A labor dispute arising from
an alleged, secondary boycott in violation of Section 8 (b) (4) (A) of
the Act likewise affects the operations of more than one employer,
namely, the secondary employers as well as the primary employer.
To meet this type of case, the majority proposes that in determining
whether to assert jurisdiction the Board shall consider not only the
operations of the primary employer, but also the operations of any
secondary employers, to the extent that the latter are affected by
the conduct involved. They state also that where a secondary boy-
cott, in fact, involves more employers than those at whom the union's
conduct was immediately directed, or was part of a general plan to,
bring secondary pressure upon employers other than those actually in-
volved in the specific conduct complained of, the Board will feel free-
in such cases to measure jurisdiction by considering the total impact
of the alleged conduct upon interstate commerce. I am in complete
accord with my colleagues that these criteria should be adopted.
5 Footnote 1, supra.
6 Hollow Tree Lumber Company, supra.
' 90 NLRB 417.
S Cf Federal Stores Dtv, sion o f Speigel, Inc., 91 NLRB 647.
TRUCK DRIVERS LOCAL UNION NO. 649 391_
However, I believe, contrary to their conclusion, that this case clearly
falls within the latter category.
The particular conduct on the part of the Respondent alleged to
have violated Section 8 (b) (4) (A) occurred on April 10, 1950, when
the Respondent is accused of imposing a secondary boycott upon two
customers of Pearl City Fuel Corporation. My colleagues view this
conduct in isolation and conclude that the alleged unlawful boycott
arose solely out of a dispute with Pearl City and that it was directed
solely against that employer. I believe that they take a much too-
narrow view of the breadth of the dispute. Although the Respondent
attempted to camouflage the primary purpose of its boycott by pur-
porting to limit it to customers of Pearl City, in my view, it is clear
from the record that their purpose was not so limited. The boycott
of April 10 was intended by the Respondent to be, an advertisements
to the other members of the Exchange as to what they also could ex-
pect to happen if they resisted the Respondent's demands. The Re-
spondent was simply resorting to the familiar device of "divide and_
conquer."
The record shows that the Exchange was incorporated in July 1947,
for the purpose, among other things, to obtain uniformity and sta-
bility in labor relations between its members and the various labor
organizations representing employees of its members, and that among-
the activities of the Exchange are the conduct of labor negotiations
and the execution of labor contracts on behalf of its members with
various labor organizations. The Respondent, apparently from the
very inception of its attempt to organize the truck drivers employed
by members of the Exchange, sought to accomplish its purpose-
through the offices of the Exchange. Thus, in the fall of 1949, the,
business agent of the Respondent met with the president and secre--
tary of the Exchange and advised them that the Respondent wanted
all truck drivers employed by the members of the Exchange to join
the Union. Thereafter, and some time before April 19, 1950, the
Respondent requested the Exchange to bargain with it on behalf of
the truck drivers employed by the members of the Exchange. Sub-
sequently, on April 21, 1950, the Respondent, together with other-
members of the Building and Construction Trades Council of James-
town, participated in a general strike in order to bring to a head con-
tract negotiations and outstanding grievances between the Council
and the Exchange. On the same day, the Respondent with other mem-
bers of the Council conferred with representatives of the Exchange
under the auspices of a representative of the New York State Media-
tion Board with the object of settling the strike. During this con-
ference, it was agreed that the members of the Exchange would write
a letter to their employees presumably to advise the employees that
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there would be no objection if they joined the Respondent. At the
same time, the business. agent of Respondent counseled the represent-
atives of the Exchange to advise or encourage their employees to be-
come members of the Respondent in order to avoid trouble.
Upon the basis of the foregoing facts, I am convinced that the
Respondent's alleged unlawful activities herein were directed against
all the members of the Exchange and not limited to any one member.
Accordingly, I would determine jurisdiction here by considering the
operations of all the members of the Exchange, which clearly are
sufficiently extensive to warrant exercising jurisdiction in accordance
with the Board's enunciated policies.9
MEMBER STYLES took no part in the consideration of the above
Decision and Order Dismissing Complaint.
Order Dismissing Complaint
Upon a first amended charge duly filed, the General Counsel of the National
Labor Relations Board issued a complaint dated August 15, 1950, in the above-
entitled matter. Respondent filed an answer denying the commission of unfair
labor practices.
Pursuant to notice, a hearing was held on August 29 and 30, 1950, at Jamestown,
-New York. All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, to argue the
issues orally, and to file briefs and/or proposed findings of fact and conclusions
,of law. The General Counsel filed a brief which has been considered.
At the hearing the Respondent made, at the conclusion of the General Counsel's
case and again at the conclusion of the hearing, motions to dismiss the complaint
on jurisdictional grounds and also on the ground that the evidence did not
establish the commission of unfair labor practices. Ruling was reserved on
said motion. The motion is now granted on the jurisdictional grounds for
-reasons stated below.
The material facts, established by stipulation and by supplemental evidence,
may be summarized as follows :
Pearl City Fuel Corporation (herein called Pearl City) was the primary
employer, with whom the Respondent was engaged in a labor dispute and at
9 In this case , Scalise and Carlson, the customers of Pearl City who were subjected to
the Respondent ' s secondary pressures , are members of the Exchange as well as Pearl City.
My colleagues infer that, because these three employers were all members of the Ex-
change, Scalise and Carlson were not neutral parties with no interest in the dispute
between Pearl City, the primary employer, and the Respondent I cannot agree with
this view The fact that several employers may loin together in an association for the
purpose of conducting their labor relations on a joint basis does not, because of this
fact alone, create a unity in their business operations The only contacts between Pearl
City and Scalise and Carlson arose by virtue of the fact that trucks operated by Pearl
City made deliveries at projects being constructed by Scalise and Carlson In my opinion,
this relationship is not sufficient to prevent a boycott of Scalise and Carlson because
of a dispute with Pearl City from being a secondary boycott in violation of Section 8 (b)
(4) (A) The cases cited by the majority in footnote 4 are clearly inapposite. In
The Pure Oil Company case the piimary and secondary employers were doing business on
the same premises The Board found that picketing one of the employers at such
premises was primary picketing in spite of its incidental effects upon the other employer.
In IBEW v. N L R B , the circuit court of appeals affirmed the Board's finding that
the Respondent had engaged in a secondary boycott in violation of Section 8 (b) (4) (A).
TRUCK DRIVERS LOCAL UNION NO. 649 393•
whom were directed the alleged unfair labor practices It was a dealer in coal
and ready-mix concrete. Its annual purchases aggregated $150,000, of which
25 percent'- was procured from extrastate sources. Presumably, the latter
consisted mainly of coal, since Palermo, Pearl City's president, testified that his
cement, sand, and gravel were of intrastate origin All sales were made locally,
30 percent of annual sales of $190,000 being to general contractors for use in
the construction of State and Federal highways, railroads, and other instru-
mentalities of commerce, and for firms producing or handling goods shipped in
interstate commerce 2
Respondent's controversy with Pearl City concerned the employment of its
truck drivers ; and Respondent's activities complained of by the General Counsel
consisted of the picketing of Pearl City's transient-mix cement trucks on April
10, 1950, at the time of the delivery of concrete to one local construction project
each of Scalise Bros. Construction, Inc. (herein called Scalise) and Carlson
Builders (herein called Carlson). No evidence was offered of the size of the
two jobs nor of the extrastate origin of any of the building materials used
thereon. As stated, all ingredients of Pearl City's concrete were of intrastate
origin. It was stipulated, however, that Scalise procured from extrastate sources
25 percent of annual purchases of $139,000 and that Carlson similarly procured
75 percent of annual purchases of $100,000 Presumably, comparable percentages
of the materials used on the respective jobs had a like derivation. Cf. Denver
Budding l Construction Trades Council, et al. v. N. L. R. B., 26 LRRM 2515
(C A. D. C.), decided September 1, 1950.
It was also stipulated that of annual contracts aggregating $286,000, Scalise
had performed 30 percent for companies who shipped goods outside the State,
and that of Carlson's annual contracts of $200,000, 30 percent had been for similar
concerns, and that 17 percent was performed for concerns located outside the-
State.
Oral testimony supplementing the foregoing established that Scalise occasion-
ally took small "filler-in" road resurfacing jobs and that it also sometimes took
an occasional construction project across the nearby State line in Pennsylvania.
Carlson also had sometimes taken Pennsylvania jobs, including currently two
churches in Erie valued at $250,000 There is no evidence and no contention,
however, that Pearl City had supplied any of the materials for those or for any
other extrastate jobs. In fact, the nature of its product is such that it is suitable-
for delivery only in the vicinity of its yard, and not on distant projects.
The Jamestown Builders Exchange (herein called the Exchange) is an associa-
tion of general contractors, subcontractors, and material dealers. At the time
of the hearing it had 21 members, of whom 8 were general contractors, 5 sub-
contractors, 6 dealers, 1 contractor-dealer, and 1 subcontractor-dealer. Its
contractor-members performed annual contracts totalling $2,000,000, of which
30 percent was for concerns outside the State and 30 percent for concerns whose
operations involved the shipment of goods between New York and other States.
Said members purchased annually materials valued at $750,000 of which 30,
percent was from outside the State.
The dealer-members of the Exchange made annual purchases of $1,000,000,
30 percent of which was of extrastate origin. Their annual sales aggregated
$1,750,000, of which 30 percent was to customers outside the State and 30 percent
I All figures and percentages stated herein are approximate ; all annual figures are for
the calendar year 1949
Z'Stlpulated,facts Palermo testified that in 1949, Pearl City had supplied to a Buffalo
contractor (not a member of the Exchange) approximately $30,000 worth of conc...+..
on three State highway or bridge projects in or near Jamestown.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was used in construction , repair, or maintenance for businesses engaged in pro-
ducing or handling goods for interstate shipment and for the construction of
Federal and State highways and other instrumentalities of commerce.
Among the activities of the 'Exchange was the conduct of labor negotiations
and the execution of labor contracts on behalf of all its members with labor
organizations representing employees of such members . However , the only
unions with whom the Exchange had negotiated and/or made agreements on
behalf of its members were the Carpenters, the Laborers, and the Plasterers
unions. The Exchange had left up to individual members all representation and
negotiation questions with all the other various craft unions in the building
and construction industry, including Respondent.
On April 21, subsequent to the unfair labor practices complained of, the Build-,
ing Construction Trades Council (of which Respondent was a member) called a
city-wide 1-day strike during which the Council resorted to direct and primary
-picketing of all major construction sites. On the same day representatives of
the Council held a conference with representatives of the Exchange to explore
the possibilities of negotiations and bargaining on an association-wide basis, but
the decision then reached was that with the exception of the Carpenters, Laborers,
and Plasterers unions, negotiations would proceed between the various craft
unions and the various exchange members on an individual basis' (credited
testimony of Sylvester Cummings).
Conclusions
Pearl City's business closely resembles in nature, but not in size, that in
-J. H. Patterson Co, 79 NLRB 355 Patterson was a dealer in building materials,
coal, and fuel oil, whose interstate purchases aggregated 149 carloads, valued at
more than $250,000, out of total purchases of 289 carloads. The Board's asser-
tion of jurisdiction was predicated solely on the "close relationship between
enterprises of this nature which distribute building materials, and the building-
,construction industry, over which [it had] recently asserted jurisdiction."
However, Chairman Herzog and Member Murdock dissented, stating :
This small company's business is essentially local in character. Although
half the building materials, fuel oil and coal that pass through this yard
originates outside Illinois, all is sold, used, and comes to rest in the im-
mediate vicinity of the city of Rockford The fact that some of the materials
which the Employer distributes may ultimately be used in local building
construction is not, in our opinion, sufficient warrant for extending the
operations of this overburdened Board to the relations of parties whose
affairs can have little practical effect upon commerce between the States.
Pearl City's substantially smaller operations obviously call for a conclusion
contrary to that reached by the majority of the Board in Patterson. Further-
more, a fortiori support for a refusal to entertain jurisdiction is furnished by
Makmns Sand & Gravel Co., Inc, 85 NLRB 213. Jurisdiction was there declined
though the employer imported annually $72,000 worth of cement, though its
ready-mix concrete was used chiefly in city paving, and building construction
work, and though small portions were also used by a railroad and in the repair
of -an airstrip at the municipal airport. Also, see, Construction Materials
3 It is difficult to relate this evidence to the General Counsel ' s contention that it
buttresses his position that the Exchange and its members are to be regarded as a
single enterprise . Not only did the occurrences take place subsequent to the labor
dispute and the unfair labor practices complained of, but the settlement resulted in
reaffirmation of the Exchange 's policy of bargaining for its members only with_ the
Carpenters , Laborers , and Plasterers.
TRUCK DRIVERS LOCAL UNION NO. 649 395
,Company, 85 NLRB 320; Brewer & Brewer Sods, Inc., 85 NLRB 387; Texas
,Construction Material Company, 80 NLRB 1248; and Knoxville Sangravl Ma-
terial Company, Inc., 80 NLRB 1461,
But there is another and more compelling reason which dictates a result con-
trary to that reached in Patterson and that is that recent decisions disclose that
the dissenters' view in Patterson, above quoted, has now been adopted by the '
Board. This fact is most readily apparent from the majority and minority opin-
ions in Denier Building & Construction Trades Council (William 0 Churches),
90 NLRB 378, which contain a full collation of the decisions of the Board that
reflected the change in trend. See also the subsequent decisions in Pettus Ban-
nister Company, 90 NLRB 500; Glaziers Union Local No. 27 (Joliet Contractors
Association), 90 NLRB 542; Local 596, International Brotherhood of Electrical
Workers (West Virginia Electric Car p.), 90 NLRB 526.
The rationale of the Churches decision also dissipates the apparent inconsist-
encies between earlier decisions in which jurisdiction had been asserted over
dealers importing lumber and declined over those who imported cement. See
Howard County Camber Co., Inc, 86 NLRB 512, footnote 3, and dissenting opin-
ions in Edgar P. Folse, 86 NLRB 394, and Makins Sand & Gravel Co., supra.
The fact that the Exchange was here the charging party does not require that
it and its members be regarded as a single enterprise for the purpose of passing
,on the jurisdictional issue. Thus the case is readily distinguishable from Car-
penter & Skier, 90-NLRB 417, in which the alleged unfair labor practices were
attributable to the association itself and were the result of the application of a
common labor policy by the association on behalf of its members, including those
involved in the proceeding Here none of the unfair labor practices were attrib-
utable to not directed at the Exchange, nor did they arise out of any contact,
agreement. or negotiations made or held by the Exchange on behalf of its mem-
bers. Instead the Exchange had left to its members all representation matters
involving Respondent, as well as many other craft unions ; and the alleged unfair
labor practices, as shown by the evidence, arose out of the failure of Respondent's
negotiations with an individual mcmbei, Pearl City, and were directed solely at
that member.
The Exchange's position here is the same as the association's was in Joliet
Contractors' Association, supra, in which jurisdiction was declined. There,
though the association was the charging party, many of its members were only
remotely connected with the case,' and no alleged unfair labor practices were
-directed at them. The business of the employers who were directly involved
were of comparable size to those involved here.
In a secondary boycott case, the determination of the jurisdictional issue may
-also, of course, properly include consideration of the extent to which the gen-
eral businesses of the secondary employei s may be affected by the alleged unlawful
conduct, and, where a construction project is involved, the effect of such conduct
on the extrastate incidences of the job may be considered.
In the present case no effect was shown (nor can any be presumed under the
evidence) on the general businesses of Scalise and Carlson, since the picketing
complained of occurred only on a single local construction project of each.
Furthermore, though Scalise and Carlson did occasional jobs in Pennsylvania
and Scalise occasionally engaged in road or bridge resurfacing, they bought from
Pearl City only transient-mix cement, all ingredients of which were of intrastate
origin, and there is no evidence that Pearl City supplied any materials to the
Pennsylvania projects of either. The delivery of cement to occasional intrastate
4 Here none were , save for Pearl City, Scalise , and Carlson.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resurfacing jobs does not, of course, furnish an adequate basis to warrant the"
assertion of jurisdiction.' Cf. Mak:ns Sand & Gravel Co., and Brewer and Brewer
Sons, supra.
Insofar as'the construction projects are concerned, only slight effect can be
presumed on the interstate operations of the secondary employers. Thus, no
evidence was offered of the size of either project nor of the actual interstate
derivation of any of the materials used therein. It is, indeed, only by indulging
a questionable presumption that the jobs can be said to have had any extra-
state incidences e And even with the presumption indulged, the evidence does
not permit a calculable finding of an effect on the contractors' interstate
operations.
Under the circumstances, it is concluded and found that the operations of the
employers at which were directed the alleged unfair labor practices in this pro-
ceeding were essentially local in character, and that, though they are not wholly
unrelated to commerce, it would not effectuate the policies of the Act for the
Board to assert jurisdiction.
For these reasons, Respondent's motion to dismiss the complaint upon juris-
dictional grounds is granted, and it is hereby :
ORDERED that the complaint be dismissed in its entirety.
Any party may obtain a review of the foregoing order, pursuant to Section
203.27 of the Rules and Regulations of the Board, by filing a request therefor with,
the Board, stating the grounds for review, and immediately upon such filing
serving a copy thereof on the Regional Director and the other parties. Unless
such request for review is filed within ten (10) days from the date of this order
of dismissal, the case shall be closed.
5 The inference is justified that Pearl City's sale of $30,000 to a Buffalo contractor ins
1040 was an unusual and sporadic part of its business, since Scalise testified that there
was "very little" road building done by the Jamestown contractors (who were Pearl City's
regular customers)
5 The entire record suggests the probability that the stipulated figures of Carlson's
Interstate purchases (75 percent of $100,000) were erroneous The percentage is obviously
disproportionate for a small general contractor, who would ordinarily buy the bulk of his
materials locally (cf the 25 percent in Scalise's case) It is considered possible that
the stipulated figures included Carlson ' s purchases of materials at Erie for use in the"
Erie projects
STATEN ISLAND CLEANERS, INC., PETITIONER and INTERNATIONAL
ASSOCIATION OF CLEANING AND DYE HOUSE WORKERS, A. F. L. and
LAUNDRY, LINEN CLEANING AND DYE HOUSE CHAUFFEURS, LOCAL
366, AFFILIATED WITH INT'L BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L. Cases,
Nos. 14-RM-49? and 14-RM-43. February 26, 1951
Decision , Order, and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National'
Labor Relations Act, a hearing was-held before Milton 0. Talent,
hearing officer. The hearing officer's rulings ' made at the hearing
are free from prejudicial error and are hereby affirmed.
93 NLRB No., 63.