Pelnik Wrecking Co., Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1960

126 N.L.R.B. 259 (N.L.R.B. 1960)

PELNIK WRECKING COMPANY, INC. 259
Pelnik Wrecking Company, Inc. and Ronald Heath
Local 7, International Hod Carriers ', Building & Common
Laborers ' Union of America, AFL-CIO, and Its Business
Agent Peter Pavlisak and Ronald Heath
Pelnik Wrecking Company, Inc . and Russell Nichols, Jr.
Local 7, International Hod Carriers ', Building & Common
Laborers' Union of America , AFL-CIO, and Its Business
Agent Peter Pavlisak and Russell Nichols, Jr.
Pelnik Wrecking Company, Inc. and James Snyder
Local 7, International Hod Carriers ', Building & Common
Laborers ' Union of America , AFL-CIO, and Its Business
Agent Peter Pavlisak and James Snyder. Cases Nos. 3-CA-
1285, 3-CB-408, 3-CA-1286, 3-CB-406, 3-CA-1287, and 3-CB-
407. January 20, 1960
DECISION AND ORDER
Upon charges duly filed on June 12,1959, by Ronald Heath, Russell
Nichols, Jr., and James Snyder, the General Counsel for the National
Labor Relations Board, herein called the General Counsel, by the Re-
gional Director for the Third Region, issued a complaint dated
August 26,1959, against Pelnik Wrecking Company, Inc., and Local 7,
International Hod Carriers', Building & Common Laborers' Union of
America, AFL-CIO, and its Business Agent Peter Pavlisak, herein
collectively called the Respondents, alleging that the Respondents had
engaged in unfair labor practices within the meaning of Section
8(a) (1) and (3) and 8(b) (1) (A) and (2) of the Act. Copies of the
complaint, charges, and notice of hearing were duly served upon the
Respondents and the Charging Parties. On or about September 10,
1959, the Respondents filed separate answers to the complaint denying
the commission of any unfair labor practices.
On November 12, 1959, Trial Examiner Sidney Asher conducted a
hearing on the issues alleged in the complaint. Testimony regarding
the alleged unfair labor practices and the Board's jurisdiction was
received. At the close of the hearing the Trial Examiner granted
Respondents' motion to dismiss the complaint on the grounds that
the General Counsel had failed to establish that the business opera-
tions of the Employer-Respondent met the Board's jurisdictional
standards. The Trial Examiner did not file an Intermediate Report.
Pursuant to Section 102.27 of the Board's Rules and Regulations, the
General Counsel filed a request with the Board to review the dismissal
of the complaint.
126 NLRB No. 37.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 re-
quest for review and the entire record in the case, and, for the reasons
stated hereinafter, hereby adopts the findings and conclusions of the
Trial Examiner.
THE BUSINESS OF THE RESPONDENT EMPLOYER
The Respondent Employer is engaged in the wrecking business
within the State of New York. During the year from June 1, 1958,
to May 31, 1959, it rendered services to the following firms and in
the amounts stated entirely within New York State :
Central Hudson Gas & Electric Corporation----------- $ 8, 527. 50
Tidewater Oil Co------------------------------------ 3, 500. 00
Carrier Corporation--------------------------------- 17500.00
J. P. Lewis Co-------------------------------------- 1, 750.00
Syracuse Supply Co--------------------------------- 16, 000.00
Henney Motors------------------------------------- 9,200.00
Kallet Theaters------------------------------------- 5, 000.00
F. W. Woolworth Co-------------------------------- 1, 800.00
Alpha Portland Cement Co-------------------------- 27400.00
Total----------------------------------------- $49,677.50
The General Counsel contends that the Trial Examiner improperly
allocated the contract price of a job performed for Alpha Portland
Cement Co. to the critical jurisdictional period thereby understating
the amount of work performed during that period. The Employer-
Respondent had a $6,400 contract with Alpha Portland Cement
calling for the demolition of a building and the levelling of land on
which it stood. Testimony was received that the work began on May
19, 1959, and was completed on June 19, 1959 .1 The General Counsel
argues that 50 percent of the work was completed by May 31, 1959,
and, accordingly, one half the contract price ($3,200) should be allo-
cated to the jurisdictional year. The only evidence as to progress of
completion was the testimony of the area manager of Alpha that in
"his opinion" 50 percent of the work was completed by May 31, 1959.
' 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, Bean,
and Fanning].
2 The General Counsel has excepted to certain rulings of the Trial Examiner relating to
proof of interstate activities of customers of the Employer -Respondent . As the Trial
Examiner assumed, for the purposes of his final ruling, that such companies were en-
gaged in interstate commerce , we find no prejudice in his rulings.
s This completion date is questionable as there is other testimony which seems to,
indicate that the work was not completed until the end of June . In basing his finding
on the June 19 date, the Trial Examiner resolved this question most favorably to the
General Counsel.
TIDELANDS MARINE SERVICE , INC. 261
Upon cross-examination , it was obvious that the witness lacked ex-
pertise in the demolition and wrecking business and that his estimate
was no more than a lay opinion based on casual observation . In these
circumstances , the Trial Examiner refused to give any weight to this
witnesses ' estimate. In the absence of other evidence , the Trial Ex-
aminer assumed that the work was evenly distributed over the period
of completion . Thus, he found that there were 24 working days
between May 19 and June 19, 1959, and that 9 of those days, or three-
eighths of the total , fell within the jurisdictional year . Accordingly,
he allocated three-eighths of the contract price or $2 ,400 to the juris-
dictional year. With this method of allocation , the Trial Examiner
found that the Employer -Respondent did a total of $49,677.50 business
with interstate companies , a sum insufficient to meet the Board 's juris-
dictional standards.' He therefore granted the motion to dismiss the
complaint.
In the absence of affirmative substantial evidence showing rate of
completion of the work, the method of allocation used by the Trial
Examiner was reasonable . Indeed, it was the only practicable method
that could be used in the circumstances . Accordingly , we affirm the
ruling of the Trial Examiner and shall dismiss the complaint.
[The Board dismissed the complaint.]
4 Siemons Mailing Service , 122 NLRB 81.
Tidelands Marine Service, Inc. and Seafarers' International
Union of North America, Atlantic and Gulf Districts, AFL-
CIO. Cases Nos. 15-CA-9f22, 15-CA-951, and 15-CA-962. Janu-
ary 20, 1960
ORDER REOPENING RECORD AND
REMANDING PROCEEDING
The original hearing herein was held between April 15 and June 26,
1958, before Trial Examiner A. Norman Somers. As the rule of the
A. & P. case 1 was then in effect, Respondent's demands for the pro-
duction of the pretrial statements of certain General Counsel wit-
nesses were denied by the Trial Examiner in reliance on that rule. On
August 28, 1958, the Board in Ra-Rich Manufacturing Corporation 2
overruled the A c P case, holding that the rule of the Jencks' case
applies to Board proceedings and affords parties thereto, upon proper
demand, the right to production for purposes of cross-examination
1118 NLRB 1280.
2 121 NLRB 700.
8 Jencks v . United States, 353 U.S. 657.
126 NLRB No.36.