Madison Bldg. & Construction Trades Council, Etc.

National Labor Relations Board - Board Decisions

Nov 20, 1961

134 N.L.R.B. 517 (N.L.R.B. 1961)

MADISON BLDG . & CONSTRUCTION TRADES COUNCIL, ETC. 517
ness, the selfishness or unselfishness of the end for which particular union activi-
ties represent means . United States v. Hutcheson , supra. Thus, regardless of the
judgments implicit in my comments above , with respect to the conduct of the
respondent labor organizations , their unfair listing of the complainant Employer
cannot be considered violative of the statute.
CONCLUSIONS OF LAW ,
1. Northwestern Construction of Washington , Inc., is an employer engaged in
commerce and business activities which affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act, as amended.
2. Electrical Workers Local Union No. 73, and Northeastern Washington-
Northern Idaho Building and Construction Trades Council are labor organizations
within the meaning of Section 2(5) of the Act, as amended.
3.1 It has not been established by a preponderance of the evidence that Respondent
Union or Respondent Council threatened, coerced , or restrained any person engaged
in commerce or in an industry affecting commerce , for an objective statutorily
proscribed.
[Recommendations omitted from publication.]
Madison Building & Construction Trades Council , William
Arnold ; Local 204, Operative Plasterers & Cement Finishers
International Assn ., Robert Cleveland ; Local 111 , Wood, Wire
& Metal Lathers International Union , Jacob Puccio and
Wallace Hildebrandt & John Kiefer , d/b/a H & K Lathing
Co.; and Warren H. Tetzlaff . Case No. 13-CC-350. Novem-
ber 00, 1961
DECISION AND ORDER REMANDING CASE TO
THE TRIAL EXAMINER
On August 31, 1961, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, recommend-
ing that the complaint herein be dismissed because the operations of
the secondary employers involved did not meet the Board's standards
for assertion of jurisdiction, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Respondents
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case , and finds merit in the General Counsel's exceptions.
The complaint alleges that the Respondents engaged in secondary
activities in violation of Section 8 (b) (4) (ii) (A) and (B) of the Act.
The violations allegedly involve four homebuilders located in Madi-
134 NLRB No. 43.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son, Wisconsin, as the secondary, employers. At the times,material
to the alleged violations, the primary employer, H & K Lathing Co.,
was performing lathing work at 5039 Marathon Drive, Madison, Wis-
consin, for Warren H. Tetzlaff ; in the 500 block of Meadow Lane,
Madison, Wisconsin, for Byron Jevne ; 1 and at 2214 Branch Street,
Middleton, Wisconsin, for Paul Montalto, subcontractor for Dean and
Donald Rischmueller, general contractors. During 1960, materials
originating out-of-State and used at these three construction sites
amounted in value to $13,226.23 at the Marathon Drive site; $23,598.12
at the Meadow Lane site ; and $16,242.58 at the Branch Street Site .2
The Trial Examiner recommended dismissal of the complaint on
jurisdictional grounds, because he found that no violation had oc-
curred affecting the Montalto job at the Branch Street site, and he
therefore excluded the inflow to this job from, consideration. As the
combined indirect inflow figures for the Marathon Drive and Meadow
Lane sites were found not to meet the Board's indirect inflow standard-
of $50,000 for nonretail enterprises, the Trial Examiner found an in-
sufficient basis for assertion of jurisdiction with respect to the opera-
tions of Tetzlaff and Jevne at these sites. Consequently, the Trial
Examiner did not make findings as to the alleged violations involving
them.
In reaching these results, the Trial Examiner apparently concluded
-that he must, in each instance, find a violation before he could con-
sider, for jurisdictional purposes, the commerce figures of the sec-
ondary employers. We do not agree. Under the rules of Jamestown 3
and McAllister 4 cases, where, as here, the primary employer does not
meet the Board's jurisdictional standard, 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 requirement that secondary employers be affected by the conduct,
involved does not mean that a violation must first be found. It is,
sufficient that conduct occurred that involved the secondary employer,
which conduct must be considered and ruled upon as alleged viola-
tions. Moreover, the conduct involving one secondary employer may
not, as an isolated incident, be ruled upon as to whether it constitutes.
1 While H & K at the time of the alleged violations were working at 514 Meadow Lane,
Jevne planned to have them do the lathing at the other houses under construction in this,
block, located respectively at 510, 506 , and 502 Meadow Lane , and II & K understood
that they were to do this work
2 We accept and rely on the General Counsel's figures with respect to the indirect inflow
of materials from out -of-State for use at the construction sites herein involved
sTruck Drivels Local Union No 649, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America, AFL (Jamestown Builders Exchange,
Inc ), 93 NLRB 386
* International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America , General Drivers and Helpers Local No. 554 , and Chauffeurs , Teamsters antr
Helpers Local No 608, AFL ( McAllister Transfer, Inc ), 110 NLRB 1769
5 Id•, pp . 1769-1772.
MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 519
a violation, as the Trial Examiner did, unless jurisdiction is first as-
serted in the proceeding under the Board's applicable standards.
In these circumstances, as the combined indirect inflow of the four
secondary employers at the locations affected is $53,067.63, an amount
exceeding the required $50,000, we find that such combined indirect
inflow meets the Board's jurisdictional standard.' Accordingly, we
find that, for the purpose of this proceeding, the four secondary em-
ployers herein involved are engaging in commerce, or in operations
affecting commerce, within the meaning of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction in this proceed-
ing and to resolve the substantive issues raised by the complaint. We
shall therefore remand this proceeding to the Trial Examiner.
[The Board remanded the above-entitled proceeding to the Trial
Examiner for the preparation and issuance of a Supplemental Inter-
mediate Report setting forth his findings of fact, conclusions of law,
and recommendations with respect to the unfair labor practices al-
leged in the complaint.]
0 United Slate, Tile and Coin position Roofers, Damp and Waterproof Workers Assocw-
tson, AFL-CIO, Local Union No 57 (Atlas Roofing Go, Inc ), 131 NLRB 1267, footnote 2.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint charged the Respondents with violation of Section 8(b) (4) (ii) (A)
and (B ) of the Act. In their answer , the Respondents denied not only the allegations
of the complaint charging the commission of unfair labor practices by them but
also the jurisdictional allegations of the complaint. I held a hearing on the issues
at Madison , Wisconsin , on June 20 , 21, 22, and 23, 1961, at which all parties were
represented by counsel. At the close of the taking of testimony, counsel for the
Respondents presented oral argument and, subsequent to the hearing , counsel for
the Respondents , the General Counsel, and the Charging Party, filed briefs which
I have duly considered.
Upon the record so made, and based upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE CHARGING PARTIES AND THE EMPLOYERS
The Charging Parties are Wallace Hildebrandt and John Kiefer, ' who, as self-
employed persons , are engaged in the installation of lathing in buildings under the
firm name and style of H & K Lathing Co. H & K have formed an informal part-
nership but they have no employees . They do not , morever, purchase any materials,
and their only capital assets are their own personal tools, an automobile that has
been converted into a truck , and a scaffolding . A lather's tools consist of a hatchet,
nail sack, a belt, a string , and possibly a level or a plumb line. The precise
value of the tools, truck, and scaffolding is not shown by the record but it is,
obviously, slight . On February 15, 1961 , H & K filed an affidavit of partnership
identity in the office of the Register of Deeds for Dane County, Wisconsin, but
this affidavit was filed after the date of the alleged unfair labor practices.
The employers involved in the proceeding are as follows:
Warren H . Tetzlaff is a building contractor in Madison , Wisconsin . In 1960,
the gross volume of his business was approximately $ 180,000, and he spent approxi-
mately $70,000 on materials.
1 When both of them are mentioned hereafter , whether individually or as partners, they
will be referred to as H & K
5520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Byron Jevne is also a builder in Madison, Wisconsin. In 1960, the gross volume
of his business was about $250,000, and he spent approximately $125,000 for
materials.
Dean Rischmueller and Donald Rischmueller, who are partners, operate as build-
ing contractors in the area of Madison, Wisconsin, under the name of "Better
Builders." In 1960, the gross volume of the business of the partnership was over
$200,000, and about $100,000 was expended on materials.
Paul Montalto is a lathing and plastering contractor in Madison, Wisconsin.
The gross volume of his business is from $60,000 to $70,000 annually. He expends
annually about $20,000 on materials originating outside the State of Wisconsin.
Tetzlaff, Jevne, and the Rischmuellers purchase almost all of their materials
locally but most of these materials originate outside the State of Wisconsin.
Tetzlaff did not specifically testify with respect to the origin of all of his materials
but Jevne estimated that approximately 90 percent of his materials originated
outside of the State of Wisconsin, and Dean Rischmueller testified that a con-
servative estimate would be that 75 percent of the materials purchased by the part-
nership originated outside of the State of Wisconsin. As Tetzlaff's business is
similar to that of Jevne's and the Rischmuellers', it may be assumed that approxi-
mately 75 percent of his materials originated outside of the State of Wisconsin.
II. THE LABOR ORGANIZATIONS AND THEIR AGENTS
Local 111, Wood, Wire & Metal Lathers International Union; Local 204, Opera-
tive Plasterers & Cement Finishers International Assn.; and Madison Building &
Construction Trades Council are labor organizations that operate in or in the
vicinity of Madison, Wisconsin. Jacob Puccio is a part-time business agent of
Local 111, and Robert Cleveland is a full-time business agent of Local 204. William
Arnold is executive secretary of the Madison Building & Construction' Trades Coun-
cil, which is composed of delegates from the building trades unions in the Madison,
Wisconsin, area, including Locals 111 and 204. The delegates to the Council are
normally the business agents of the locals affiliated with the Council, and the presi-
dent of the Council is the business agent of the Sheet Metal Workers Union in
Madison, Wisconsin. As executive secretary of the Council, Arnold advises the
business agents but they are not required to accept his advice. Decisions of the
Council are made by its executive board.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Before they decided to seek lathing work in the area of Madison, Wisconsin,
H & K were both members of Local 111. The dues of Kiefer were then, however,
considerably in arrears, and his suspension was being considered by the union.
Early in February 1961, Puccio was approached by H & K who asked the business
agent what procedure they would have to follow to become contractors. Under
the provisions of the union's constitution, it was necessary for them to get solicitors'
cards but these were issued only after application in writing. H & K never filed
written applications but, in order to get the necessary permission, contacted Puccio
a number of times-at his home and in a parking lot of a supermarket. On these
occasions,_Puccio told H & K that he had no authority to issue the solicitors' cards.
Becoming impatient, they warned him in one of their conversations that they had
consulted their lawyer, and that if he attempted to interfere with them they would
get an injunction against him. Their impatience was due to the fact that, having
already contacted some builders and lined up some lathing jobs, they were anxious
to get started.
One of these builders was Warren H. Tetzlaff who, at the beginning of January
1961, had begun the construction of a house at 5039 Marathon Drive in Madison.
Tetzlaff had agreed, on or about February 3, to have H & K do the lathing on the
house and they had set up their scaffolding on or about February 9. H & K had
agreed to do the work at the price of $1.25 a bundle of laths, with a maximum
price of $600.
About 9 a. m. on February 10, Tetzlaff was in his office when he was visited
by Puccio, who was accompaniel by Arnold. Puccio told Tetzlaff that he had
heard that he "was going to be using H & K lathing Company on the Marathon
Drive job." According to the testimony of Tetzlaff, when he admitted this, Puccio
informed Tetzlaff that H & K were "on the outs with the union, and behind in
their dues, one of them being farther behind than the other," and warned Tetzlaff
that if he used H & K, he would have to put a picket on the job? Puccio also
9 In testifying about the conversation, Tetzlaff referred to what "they" ( meaning Puccio
and Arnold) told him but, when specifically asked who made a particular statement, he
explained that he meant Puccio. Actually, Arnold did not participate in the conversation.
MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 521
told Tetzlaff that he ought to take into consideration the fact that although H & K
had agreed to do the lathing work at $1.25 a bundle, they might hide bundles of
laths in the walls. Puccio also suggested that Tetzlaff have the work done by
Bolig & Steel, a union lathing company. Tetzlaff finally told Puccio that he
would like to have an opportunity to talk to H & K, in order to get their side
of the story, but promised to have "an answer for them by noon that day." How-
ever, Tatzlaff appears to have been in a hurry to have the house lathed before the
plasterers arrived on Monday,3 and, when Bolig came to see him later that
morning, he gave him the lathing job, although he had not yet spoken to H & K.
When H & K arrived about 3 o'clock in the afternoon, they asked Tetzlaff whether
they still had the job. According to his own testimony, Tetzlaff replied: "Well,
no, I was forced by the union to take these other contractors" (meaning Bolig &
Steel).
Another building contractor who had agreed to give lathing work to H & K was
Byron Jevne. He was constructing four houses on the 500 block of Meadow Lane
in Madison, namely, at 514, 510, 506, and 502 Meadow Lane.4 No. 506 was a
contract job but the other three houses were being built for sale. The foundations
on the four houses had been put in in the fall of 1960, so that continuous work
would be available the following January, February, March, and April. However,
on February 9, 1961; only the house at 514 Meadow Lane was actually ready for
lathing; the house next to it was only being framed; no more than the basements
of the other two houses had been put in, and the basements themselves were covered
with snow.
In the winter of 1960, H & K had done the lathing work on a house being built
by Jevne near Regent Street and Whitney Way in Madison, and Jevne had told
them that lathing jobs would be coming up on the Meadow Lane houses, and
acquainted them with his construction schedule. When the house at 514 Meadow
Lane was ready for lathing, which was on February 9, H & K commenced the
lathing work.
About 10 a. m. on February 10, 1961, Jevne, like Tetzlaff, had a visit from
Puccio and Arnold. Puccio himself lived on Meadow Lane in a house built by
Jevne, and the two men appear to have been friendly, for in his testimony Jevne
referred to Puccio as "Jack." On February 8, Jevne had had a conversation with
Puccio in which the latter, without mentioning H & K, had attempted to persuade
Jevne to give his lathing work to Walter Late & Company. In the conversation
on February 10, Puccio did mention the trouble that H & K were having with
the union. Having been told that H & K were delinquent in their dues, Jevne
offered to advance enough money to H & K to enable them to pay these dues but
Puccio informed Jevne that the matter was more serious than that. According to
the testimony of Jevne, Puccio told him that H & K "couldn't work on the job and
if I kept them working I would be in trouble "
H & K had also agreed to do the lathing for Jevne for $1.25 a bundle, and Puccio
also intimated to Jevne that H & K might hide bundles in the walls. However, Jevne
"pooh-poohed" this idea, since he was certain , in view of his experience, that if H & K
hid even two bundles in the walls, he would be aware of it. Nevertheless, feeling,
as he put it, that he could not afford to "take a chance on any picket, if that's what
he had in mind," he asked Puccio what he could do to keep H & K off the job if they
should come back. Puccio then suggested that Jevne remove the nails from the
house, since this would prevent H & K from continuing with the lathing. When
Jevne agreed to this stratagem, Arnold remarked: "Well, we can't expect anymore
than this." However, Jevne did not keep his promise to Puccio to remove the nails,
although. he had generally employed union help, and he, himself, testified that he
would not have employed H & K if he had know that they were having trouble with
the union . H & K appeared on the jobsite about an hour after Puccio and Arnold
had left, and Jevne told them about their visit, and informed them that they could
not finish the job. Nevertheless, H & K stayed on the job long enough to clean up,
and returned a few days later to complete the lathing work. Jevne testified that he
did not authorize H & K to complete the work but added: "If I would have been
around, I probably wou)dn't have prevented it, I needed the job." ,When H & K had
completed the work, moreover, they were paid for it. Prior to the visit of Puccio and
Arnold, Jevne had expected to employ H & K to lath the other three houses that he
was constructing on Meadow Lane. But, when these three houses finally came to be
lathed, the work was done by the Madison Lathing Company, which employed
union labor, rather than by H & K.
,'The day of Pucelo's and Arnold's visit was a Friday
' The complaint alleged only that two houses were being constructed on Meadow Lane
but it was amended at the hearing to increase the number of houses to the four mentioned.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
In testifying about his conversations with Tetzlaff and Jevne, Puccio denied making
any threatening statements to either of them. He explicitly denied threatening
Tetzlaff with a picket line. He also denied that either he or Arnold told Jevne that
if he did not get rid of H & K "that he was going to have trouble." Indeed, Puccio
contended that it was Jevne who first interjected the word "trouble" into the conver-
sation when he said that he would remove the nails because he did not want any
trouble on the job. Puccio also testified that he asked Arnold to drive him out to
the Tetzlaff and Jevne jobs because his automobile, which was a 1953 Mercury that
had traveled over 90,000 miles, was not in a serviceable condition.
Arnold's testimony about the visits to Tetzlaff and Jevne is to the same effect as
that of Puccio. He testified that, although he was interested in the object of Puccio's
mission, that he was "more or less" furnishing the transportation. He testified ex-
plicitly that, although he was present during the whole of the conversation between
Puccio and Tetzlaff, he did not hear the former say to the latter that, if be did not
get rid of H & K, his place would be picketed. Asked whether he himself threatened
Jevne with trouble, Arnold denied it. He testified that Jevne mentioned the fact
that H & K had run out of nails but that he had some more in the trunk of his car,
and suggested that a possible solution would be "to just not put the nails in the
house." It was at this point that Arnold had remarked that this was as much as they
could expect. He testified, however, that this remark was really made to Puccio.
H & K were also the subjects of a discussion in connection with the construction
of another house at 2214 Branch Street in Middleton, Wisconsin. This was a con-
tract job, the prospective owner being one Sam Mosigin. The Rischmeullers were
the general contractors for the construction of the house, and one of their sub-
contractors was, apparently, Paul Montalto, who was to do the lathing .5
Montalto in turn hired H & K to do the lathing work. This arrangement was made
with H & K on or about January 25, 1961. They were, as usual, to receive $1.25 a
bundle for installing the lathing. H & K started their work on January 28, and
worked for 2 or 3 days until they were held up by the plumbing. However, they
resumed the lathing work in the first week in February and completed it.
On February 11, 1961, which would be some days after H & K had completed the
lathing work, there occurred a conversation between Montalto and Robert Cleve-
land, the business agent of Local 204. February 11 was a Saturday, and about
10 a.m., Cleveland paid a visit to Montalto's home. It seems that Montalto had
discharged two of his employees who were members of Local 204, and the object
of Cleveland's visit was to attempt to persuade Montalto to rehire them. Cleveland
and Montalto were old friends-they had known each other for some 10 or 15
years-and Cleveland also knew Montalto's family. Montalto and Cleveland talked
for about an hour, and their conversation ranged over a considerable number of
topics that had no relation to the immediate object of Cleveland's visit. As Cleve-
land put it: "I have known Paul a long time, I knew his family and I guess we talked
of everything." The "everything" included how Montalto's children were doing at
school, and the man Montalto's daughter had married. At some point in the con-
versation, the names of H & K were mentioned, and Cleveland expressed himself on
the subiect. According to Cleveland, he said: "Paul, maybe you'd better dispense
with them because in the future it may cause a hardship between our members if
my members happen to be working on the same job, it's always a habit of people,
you know, these little animosities creep in, then I get complaints out of my people "
Montalto's version of the conversation was that, after the discussion of the two men
whom he had fired, Cleveland told him that "he had heard a rumor that I hired these
two lathers, that Hildebrandt and Kiefer and that I might run into trouble if I kept
them on." Then Montalto was asked: "Do you recall, Mr. Montalto, whether he
used the word, `would' or `might'?", and he replied: "No, I can't recall." In an effort
to refresh his recollection, Montalto was shown a sworn statement, which he had
made in February with reference to his conversation with Cleveland, this being
shortly after the conversation occurred. After looking at the statement, Montalto
still insisted that the word "might" had been used by Cleveland It appears, more-
over. that before signing the statement Montalto had insisted that the words "or I
might get in trouble" be stricken therefrom, and that these words had been stricken.
The record is devoid of any evidence that either Puccio or Arnold ever spoke to
the Rischmuellers about the presence of H & K on the Branch Street jobsite The
record is enually devoid of any evidence that Puccio or Arnold ever spoke directly
to Cleveland about H & K in an effort to induce him to approach other employers,
51 add the qualifying adverb because although Dean Rischmueller testified that his
lathing subc"ntractor was Montalto. Montalto himself testified that he received his con-
tract from Sam Mosigin, and that he was not a subcontractor 'in the real sense " This
seems rather difficult to understand
MADISON BLDG . & CONSTRUCTION TRADES COUNCIL, ETC. 523
or to enlist his support . A conspiracy can hardly be said to be made out by the
mere fact that two business agents have offices in the same labor temple, or are
affiliated with the same trades council . If indeed there was a conspiracy , the con-
spirators were extremely dilatory in attaining their immediate objective , for by the
time that Cleveland came to speak to Montalto , he was much too late , the work of
H & K having already been completed.
What has been alleged . as a threat in violation of some of the provisions of the
Act thus turns out to be no more than home gossip between two union business
agents who were old friends . Cleveland appears to have been a rather garrulous
character, and his garrulity manifested itself in the expression of an opinion that there
"might" be trouble in the future if Montalto continued to employ H & K. But even
if he said that there "would " be trouble in the same contingency , it would seem to
make little difference , for neither form of locution could be regarded as a threat in
the circumstances of the case . I find that Cleveland did not threaten Montalto in
violation of Section 8(b) (4) (ii) (A) and ( B) of the Act.
These provisions of the Act , insofar as pertinent to the circumstances of the present
case , prohibit labor organizations or their agents from threatening , coercing, or re-
straining any person engaged in commerce or in an industry affecting commerce
where the object of such conduct is to force or require any self-employed person to
join any labor organization or to cease doing business with any other person. The
complaint alleges that the threats made to Tetzlaff , Jevne, and Montalto had both of
these prohibited objects.
The case presents unusual difficulties , both with respect to the merits and the
question of jurisdiction . Having' found , however, that no threats were in fact
made to Montalto, it seems to me that I need not resolve the conflicts in the testimony
relating to the alleged threats to Tetzlaff and Jevne, or consider any of the substan-
tive questions of law in the case , for, without Montalto in it, it seems to me that
it has not been proven that the Board's jurisdictional standards have been satisfied.
The jurisdictional standards in secondary boycott cases appear not infrequently to
be rather uncertain and complex . But I think that it would be difficult to find a case
that presented more uncertainties and complexities than the present one, which
involves not only construction work but the construction of homes built either
for sale or under contract for individual owners. In the most recent case of this
type,6 the Board took jurisdiction over the employer engaged in the construction of
homes because it considered that its business satisfied the $500,000 volume test
established for retail enterprises . In a footnote , however, the Board also indicated
that it could have asserted jurisdiction if the indirect inflow of the employers had
met nonretail standards, and in still another footnote it declared : "While the Board
is applying existing standards to the home building operation , it does so, in the
absence of any specific standard for this type of operation , leaving open the question
of the finality of the application of existing standards in future cases in this area."
The application of the precedents in secondary boycott cases is rendered still more
difficult in the present case by the uncertainty of the extent of the Jevne construction
site affected by the alleged unfair labor practice. While four houses were being con-
structed by Jevne on the 500 block of Meadow Lane , H & K had a firm commitment
to lath only one of them , and it is wholly problematical whether they would have
been involved in the lathing of the others when they were actually ready for lathing.
It also does not affirmatively appear whether all of the homes would have been
completed and sold during 1961.
However, these facts, too, raise a question which I need not decide since , whether
the retail or nonretail standard is applied , the combined operations of H & K,
Tetzlaff, and Jevne that are relevant appear to be insufficient to satisfy either standard.
It is clear that the operations of H & K , if they be regarded,as the primary employ-
ers, are insignificant imthemselves in relation to their effect on commerce . It is neces-
sary to look, therefore , entirely to the operations of Tetzlaff and Jevne . If the retail
standard is applied and the total business of Tetzlaff , which in 1960 was approxi-
mately $180,000 , and the total business of Jevne , which in 1960 was approximately
$250,000, are added the total would be only $430 ,000 which is $70,000 less than
the retail standard requires . If, on the other hand, the nonretail standard is applied,
the case is in no wise altered. The inflow of goods from outside of Wisconsin into
the construction sites of Tetzlaff and Jevne was indirect, and the nonretail standard
would require a combined indirect inflow of at least $50,000 . In the case of con-
struction operations , however , the inflow is determined, apparently , in terms of that
8 United Slate , Tile and Composition Roofers, Damp and Waterproof Workers Assooia-
iion, AFL-CIO, Local Union No . 57 (Atlas Roofing Co., Inc ), 131 NLRB 1267.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portion of the secondary employers ' business which is affected by the alleged boycott .7
If the figures which are most favorable to the exercise of jurisdiction are taken, they
still fall short of meeting the $50,000 indirect inflow standard . The General Counsel
contends that Jevne expended in the construction on Meadow Lane $23,598.12 on
goods and materials originating outside the State of Wisconsin , and that Tetzlafl
expended in the construction on Marathon Drive $13,226. 93 on goods and materials
originating outside the State of Wisconsin . Counsel for the Respondent contends
that the figure for Jevne 's expenditures should be only $17,796.09. However, even if
the General Counsel's figures are accepted, the total would be only $36,825.05,
which is $13,274.95 less than the indirect inflow standard of $50,000 requires. The
reason for this disagreement of counsel is that the figures for the material purchases
by each of the builders are for the most part not exact . They reflect estimates by the
builders made on the basis of general experience , supplemented by conversations
which they had with suppliers of the materials. Actually, it is doubtful whether the
indirect inflow into all three of the jobsites involved in the present proceeding
would equal at least $50,000.
Upon the basis of the above findings, and upon the entire record in the case, I
hereby make the following:
CONCLUSIONS OF LAW
1. Local 111, Local 204, and the Council are labor organizations within the
meaning of Section 2(5) of the Act.
2. Local 204, and Robert Cleveland, its agent, have not engaged in unfair labor
practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act.
3. The operations of Warren H. Tetzlaff and Byron Jevne affect commerce within
the meaning of Section 2(6) and (7) of the Act. The extent to which such opera-
tions affect commerce is not, however, substantial enough under existing jurisdic-
tional standards to warrant the assertion of jurisdiction.
[Recommendations omitted from publication.]
' See, for instance , General Drivers , Chauffeurs and Helpers , Local Union No. 886,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America ( James D. O'Dell and H . H. Hulme, Jr., d/b /a Ada Transit Mix),
130 NLRB 788.
Baker Hotel of Dallas, Inc. and Hotel & Restaurant Employees
and Bartenders International Union , AFL-CIO. Case No.
16-CA-1382. November 21, 1961
DECISION AND ORDER
On January 17, 1961, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner-
at the hearing and finds that no prejudicial error was committed. The-
rulings are hereby affirmed.' The Board has considered the Inter-
' In cross -examining Basden, a witness for the General Counsel, the Respondent was
furnished a prehearing statement which Basden had given to General Counsel in which
134 NLRB No. 51.