Continental Slip Form Builders, Inc. v. Brotherhood of Const. and General Labor, Local 1290, AFL-CIO

• Decision Date: 11 December 1965
• Docket Number: No. 43752,43752
• Citation: 195 Kan. 572,408 P.2d 620
• Parties: CONTINENTAL SLIP FORM BUILDERS, INC., Appellee. v. BROTHERHOOD OF CONSTRUCTION & GENERAL LABOR, LOCAL 1290, A. F. OF L.-C. I. O., an Unincorporated Association, Joseph Rider, James W. Everhart and John Doe, Individually and As Members of the Above Union and As Representatives of the Whole of Persons Constituting the Membership of the Said Union, Appellants.
• Court: Kansas Supreme Court

Page 620

408 P.2d 620

195 Kan. 572

CONTINENTAL SLIP FORM BUILDERS, INC., Appellee. v. BROTHERHOOD OF CONSTRUCTION & GENERAL LABOR, LOCAL 1290, A F. OF L.-C. I. O., an Unincorporated Association, Joseph Rider, James W. Everhart and John Doe, Individually and As Members of the Above Union and As Representatives of the Whole of Persons Constituting the Membership of the Said Union, Appellants.

No. 43752.

Supreme Court of Kansas.

Dec. 11, 1965.

James H. Barnes, Kansas City, argued the cause, and Emil C. Anderson, Kansas City, was with him on the brief for appellants.

James A. Wheeler, Olathe, argued the cause, and Hugh H. Kreamer, Olathe, was with him on the brief for appellee.

George E. McCullough, W. L. Parker, Jr., Robert B. Wareheim, Reginald LaBunker, and James L. Rose, Topeka, were on the brief amicus curiae for the Kansas State Federation of Labor, AFL-CIO.

HARMAN, Commissioner.

The original opinion in this case (Continental Slip Form Builders, Inc. v. Brotherhood of Construction & General Labor, Local 1290, 193 Kan. 459, 393 P.2d 1004) affirmed the trial court's orders enjoining stranger picketing in violation of G.S.1961 Supp., 44-809 and 44-809a. Rehearing has been granted as to the question of jurisdiction of that court and the case has been reargued. A complete factual account appears in the original opinion and restatement will be made only to the extent necessary to consider the jurisdictional question.

It is now well settled that Congress, in the exercise of its constitutional authority to regulate interstate commerce, has preempted the field in labor relations matters affecting interstate commerce and has vested the National Labor Relations Board (hereinafter referred to as the board) with exclusive power to adjudicate those labor practices which are either protected or prohibited by the Labor Management Relations Act of 1947 as amended (hereinafter referred to as the act). (Garner v. Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601; Binder v. Construction and General Laborers Local Union No. 685, 181 Kan. 799, 317 P.2d 371; Asphalt Paving Inc. v. International Brotherhood of Teamsters, etc., 181 Kan. 775, 317 P.2d 349.)

Although it is true that where the questionable labor conduct regulated by state law is also an unfair labor practice under federal law the doctrine of preemption excludes state action, state courts need not presume jurisdiction is preempted merely because the question is raised by a party to the dispute. In order for there to be a preemption of state court jurisdiction, it is necessary that it be shown (1) that the employer is engaged in interstate commerce or that his business operations substantially affect interstate commerce and (2) that the challenged activities expressly or arguably constitute either a protected activity or an unfair labor practice under the act. (Local 100 of United Association of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; San Diego Building Trades Council, Millmen's Union, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.)

It should be noted that the act is not restricted in its scope and application to employers actually engaged in interstate commerce. Any employer whose business operations 'affect commerce' comes within its scope. This term is defined in section 2(7) as follows:

'The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstrucing commerce or the free flow of commerce.' (29 U.S.C.A. § 152.)

Under the 'affecting commerce' criterion the board often asserts jurisdiction over businesses which would normally be considered as local in nature such as mining, manufacturing, and construction work on the theory that work stoppages in them would necessarily affect the flow of interestate commerce where those businesses either buy goods from other states or furnish goods or services to other states (see annotation at 16 A.L.R.2d 775).

This court has previously held that whether an alleged unfair labor practice affects interstate commerce is a question of fact upon which jurisdiction rests. Whenever an action involving a labor dispute is commenced in a state court and the court's jurisdiction is challenged, that court is empowered to determine whether it has jurisdiction based upon the jurisdictional facts presented to it. (Binder v. Construction and General Laborers Local Union No. 685, supra; Asphalt Paving Inc. v. International Brotherhood of Teamsters, etc., supra.)

For budgetary and other reasons the board has never been willing to exercise jurisdiction over all labor disputes affecting interstate commerce under the authority delegated to it by Congress, but has limited its jurisdiction to enterprises whose operations have, or at which labor disputes would have, a pronounced impact upon the flow of interstate commerce, and to this end it has at various times established certain minimal dollar value jurisdictional standards.

The board's policy of refusing to exercise jurisdiction over all labor disputes was confirmed by Congress with the amendment of the act by the Labor-Management Reporting and Disclosure Act of 1959, which provides:

'The Board, in its discretion, may, by rule of decision or by published rules * * * decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction * * *.' (29 U.S.C.A. § 164[c].)

And state courts may now assume jurisdiction over cases which the board declines pursuant to the foregoing (29 U.S.C.A. § 164[c]). The board's discretion is limited, however, in that it may not decline jurisdiction over any case which would have been accepted under the standards prevailing on August 1, 1959. (29 U.S.C.A. § 164[c].)

Those standards prevailing on August 1, 1959, for a nonretail enterprise such as the employer involved in the instant case are outlined in Siemons Mailing Service, 122 NLRB 81, at page 85 as follows:

'For the Board has concluded that it will best effectuate the policies of the Act if jurisdiction is asserted over all nonretail enterprises which have an outflow or inflow across State lines of at least $50,000, whether such outflow or inflow be regarded as direct or indirect. For the purposes of applying this standard, direct outflow refers to goods shipped or services furnished by the employer outside the State. Indirect outflow refers to sales of goods or services to users meeting any of the Board's jurisdictional standards except the indirect outflow or indirect inflow standard. Direct inflow to goods or services furnished directly to the employer from outside the State in which the employer is located. Indirect inflow refers to the purchase of goods or services which originated outside the employer's State but which he purchased from a seller within the State who received such goods or services from outside the State. In applying this standard, the Board will adhere to its past practice of adding direct and indirect outflow, or direct and indirect inflow. It will not add outflow and inflow.'

It has been the board's established policy, continued under its present jurisdictional standards, to apply the concept that it is the impact on commerce of the totality of an employer's operations that should determine whether or not the board will assert jurisdiction. (Appliance Supply Company, 127 NLRB 319, 320; Siemons Mailing Service, supra.) More specifically, the board has on numerous occasions stated that in the construction industry it determines whether to assume jurisdiction over a case on the basis of the over-all operations of an employer rather than on the basis of a particular project. (Paul W. Speer, Inc., 94 NLRB 317; Miller Electric Company, 101 NLRB 1014; Acme Equipment Company, 102 NLRB 153.) In Paul W. Speer, Inc., supra, the board said:

'The Respondents contend that the Board should dismiss the complaint because the alleged unfair labor practices occurred in connection with a purely local construction job, which, by itself, has no effect on interestate commerce. We find no merit to this contention, as we believe that in the construction industry, as in others, the Board should determine jurisdiction based on the over-all operations of the employer.' (p. 318.)

Upon the first hearing of this case emphasis was placed only upon a single factual element involved in jurisdictional standards, namely, that of direct inflow wherein it was shown that structural steel costing $7,000.00 was purchased outside the state of Kansas and this was considered insufficient. The record does disclose that appellee between December 26, 1962, and March 25, 1963, functioned as a general contractor in building the grain elevator at Edgerton, Johnson County, Kansas, where the alleged unfair labor practice occurred, and at the same time was so functioning in the building of another grain elevator at Miami, Missouri, at a contract price of $140,000 to $150,000. On this facet of jurisdiction it seems clear that the board, upon timely application, would have been required to assert jurisdiction over appellee on the basis of its direct outflow test, assuming that a labor dispute existed. Cases in which the board has asserted jurisdiction over contractors who performed more than $50,000.00 out of state services include Local 148, 114 NLRB 1494 K. M. & M. Construction Co., 120 NLRB 1062; Local 173, Wood, Wire & Metal Lathers' Etc., 121 NLRB 1094; Local 176, United Brotherhood hood of Carpenters, Etc., 122 NLRB 980; Ernest Renda Contracting Co., Inc., Etc., 130 NLRB 1515; Plumbers & Pipe Fitters Local Union 214, Etc., 131 NLRB 942; Los Angeles Bldg. &...