Ralph O. Wigger, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 537 (N.L.R.B. 1967)

RALPH 0. WIGGER, INC.
Ralph O. Wigger, Inc. and Local 169, United
Brotherhood of Carpenters & Joiners of
America, AFL-CIO. Case AO-104.
June 19,1967
ADVISORY OPINION
This is a petition filed on March 22, 1967, by
Ralph O. Wigger, Inc., herein called the Employer,
for an Advisory Opinion in conformity with Section
102.98 and 102.99 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended.
On May 24, 1967, Local 169, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, herein
called the Union, filed a response requesting the
Board to deny the petition for Advisory Opinion.
Thereafter on June 2, 1967, the Employer filed a
reply to the response.
In pertinent part, the petition, response, and reply
allege as follows:
1. A complaint for an injunction against the Union
and two inviduals was filed by the Employer in the
Circuit Court for the Twentieth Judicial Circuit, St.
Clair County, Illinois, herein called the State Court,
having Docket No. Civ. 67-5823. When the State
Court granted the Union's motion to dismiss the
complaint on the ground that all matters alleged
therein were preempted by the National Labor
Relations Board Act, the Employer filed a notice of
appeal.
2. The Employer, a corporation incorporated and
doing business only in the State of Illinois, is
engaged in residential and apartment house
construction.
3. Upon a charge filed by the Employer against
the Union in Case 14-CC-415, Joseph H. Solien, the
Board's Regional Director for Region 14, refused to
issue an unfair labor practice complaint "because it
appears the operations of the Employer do not meet
any appropriate standard of the Board for asserting
jurisdiction ...." Thereafter, on March 8, 1967, the
General Counsel denied the Employer's appeal from
this refusal to issue a complaint on the ground that
"[t]he operations of Wigger during 1966, even when
considered together with the operations of
secondary employers at the locations affected by the
alleged conduct herein, were insufficient to meet
any applicable Board standard for the assertion of
jurisdiction. Cf. Madison Building & Construction
Trades Council, 134 NLRB 517."
4. According to the Employer, it filed with the
Board in Case 14-CC-415 the following commerce
data which it alleges to be still current and accurate.
During the past calendar or fiscal year, the
Employer's total dollar volume of sales or
performance of services did not equal or exceed
$500,000, but consisted of $150,000 worth of
537
apartment construction for its own purposes
(apartments to be rented by the Employer). During
that same period, its sales or services rendered to
employers outside the State of Illinois or to local
employers, who in turn made sales to employers
outside the State, did not exceed $50,000 and "in
fact, was none." Further, during the fiscal period,
the Employer made approximately $4,000 worth of
out-of-State purchases of goods or services and
approximately $25,000 local purchases of goods or
services which originated outside the State of
Illinois.
5. In its response, the Union generally denies the
currency and accuracy of the Employer's commerce
data and alleges the absence of a formal
presentation or a hearing as to the commerce data
and the Employer's business.
6. There is no representation or unfair labor
practice proceeding involving the same labor dispute
pending before the Board.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is an enterprise engaged in
residential and apartment house construction solely
within the State of Illinois. For purposes of this
Advisory Opinion, we shall assume that the
Employer may be a retail or a nonretail enterprise.
2. The Board's current standard for the assertion
of jurisdiction over retail enterprises within its
statutory jurisdiction is an annual gross volume of
business of at least $500,000 (Carolina Supplies and
Cement Co., 122 NLRB 88, 89); while the current
nonretail standard requires an annual mininum of
$50,000 out-of-State inflow or outflow, direct or
indirect (Siemons Mailing Service, 122 NLRB 81,
85).
3. Except for the Union's general denial of the
accuracy and currency of the Employer's commerce
data and its claim that there has not been a formal
presentation or a hearing with respect thereto, the
accuracy and currency of the information supplied
by the Employer has not been impeached or
seriously placed in doubt. In these circumstances,
we rely upon this information for the purposes of
rendering an Advisory Opinion. As it does not
appear that the Employer 's annual gross volume of
business exceeds $500,000 or that its annual out-of-
State inflow or outflow, direct or indirect, amounts to
$50,000, the Board's discretionary standard for the
assertion of jurisdiction over retail or nonretail
enterprises has not been met.
Accordingly, the parties are advised, under
Section 102.103 of the Board Rules and Regulations,
Series 8, as amended, that, on the allegations
submitted herein, the Board would not assert
jurisdiction over the Employer's operations.
165 NLRB No. 95