Hiatt v. Schlecht

Decision Date13 August 1968
Docket NumberNo. 21825.,21825.
Citation400 F.2d 875
PartiesBernard HIATT, Appellant, v. Emil A. SCHLECHT, E. B. Weber, Norman L. Buckner, Robert J. Caley, Carl M. Halvorson, Eric Hoffman, J. M. Steinmuller, Jr., and Ralph Pierson, as Trustees for the Oregon-Washington Carpenters-Employers Health and Welfare Trust Fund and as Trustees for the Oregon-Washington Carpenters-Employers Pension Trust Fund, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Henry Camarot (argued), Sanders, Lively, Camarot & Wiswall, Springfield, Or., for appellant.

Paul T. Bailey (argued), Bailey, Swink & Haas, Portland, Or., for appellees.

Before HAMLEY and ELY, Circuit Judges, and VON DER HEYDT,* District Judge.

OPINION

VON DER HEYDT, District Judge:

This is an appeal from a judgment entered by the District Court for plaintiffs. Plaintiffs, appellees herein, are trustees of the Oregon-Washington Carpenters-Employers Pension, and Health and Welfare, Funds. They filed a complaint seeking specific performance of certain trust agreements which they alleged were incorporated by reference into a labor agreement signed by defendant. Defendant, appellant herein, is a small building contractor. He contends, inter alia, that the District Court did not have jurisdiction because he is neither "in commerce" nor engaged in an "industry affecting commerce" as required by Section 301 of the Labor Management Relations Act.1 We consider here only the issue of the District Court's jurisdiction.

In support of his contention that the District Court lacked jurisdiction, appellant urges that he purchased all of his supplies and performed all of his contracts during the period in question in Oregon, and did no work for any company engaged in interstate commerce.

The record notably lacks adequate evidence on behalf of appellees in support of the District Court's jurisdictional requirement. We find this evidence to be insufficient. We glean from the record in this regard only that the plumbing fixtures which appellant used in 1963, 1964, and 1965 were manufactured outside Oregon,2 that cost of these items totalled, for both labor and materials, some $5,600 to $8,000 for the years in question,3 and that appellant's annual gross income averaged about $150,000.

The District Court determined that it had jurisdiction.

The terms "in commerce" or "industry affecting commerce" are broadly defined. Many authorities require a direct purchase of materials from another state, usually in comparatively substantial quantities, to find jurisdiction.4 The size of a particular business5 or the actual dollar value of commerce conducted6 alone is not determinative of the question.

The record establishes the following with regard to appellant's activities: He did not

1) construct outside Oregon;
2) subcontract with contractors engaged in business outside Oregon;
3) purchase materials or supplies from persons outside Oregon;
4) contract with subcontractors outside Oregon;
5) do any business with any firm or company in any other states;
6) work on any federal, state, or political subdivision projects;
7) ever work on any defense projects;
8) perform work on a facility directly utilized for the purpose of interstate commerce.

This manifest lack of interstate contact, considered with the significant insufficiency of appellees' affirmative evidence upon the jurisdictional question, distinguishes this case from those relied upon by appellees.7

Clearly, the evidence is insufficient to establish that appellant engaged in interstate commerce or in industry affecting commerce. We find the District Court lacked jurisdiction. Because of this conclusion, it is unnecessary to reach the remaining issues raised by this appeal.

Reversed and remanded with instructions to the District Court to vacate judgment and dismiss appellees' complaint for want of jurisdiction.

* Hon. James A. von der Heydt, United States District Judge, Anchorage, Alaska, sitting by designation.

1 29 U.S.C. § 185(a) (1964).

2 There was actually no evidence as to this, but the District Court took judicial notice of the `fact.' In the light of our conclusion, we need not discuss the propriety of its having done so.

3 The record suggests that the electric fixtures which appellant used may also be included in this computation.

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11 cases
  • Usery v. Lacy
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 24, 1980
    ...U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 643 (1980). Whatever might have been said about the correctness of cases such as Hiatt v. Schlecht, 400 F.2d 875 (9th Cir. 1968), at the time of their decision, their value as precedent is significantly eroded by the more recent cases in this and other c......
  • N.L.R.B. v. Maxwell, 79-7233
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 26, 1981
    ...v. NLRB, 465 F.2d 173 (7th Cir. 1972) ($1925 sufficient). It is true that this court refused to uphold jurisdiction in Hiatt v. Schlecht, 400 F.2d 875 (9th Cir. 1968), where the record showed only that the employer during the years in question had used $5600-$8000 of plumbing fixtures assum......
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    • U.S. Court of Appeals — Third Circuit
    • March 20, 1974
    ...at 158. 8 Defendant's Exhibit A at 14. 9 Defendant's Exhibit A at 118. 10 271 F.Supp. 644 (D.C.Or.1967), rev'd on other grounds, 400 F.2d 875 (9th Cir. 1968). 11 333 F.2d 739 (9th Cir. 1964), aff'd on rehearing after remand, 359 F.2d 400 (9th Cir. 12 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1......
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    • April 23, 1974
    ...enforceable collective bargaining agreements. Schlecht v. Hiatt, 271 F.Supp. 644 (D.C.Or.1967), reversed on other grounds, 400 F.2d 875 (9th Cir. 1968); Calhoun v. Bernard, 333 F.2d 739 (9th Cir. 1964); Bartenders v. Nationwide Downtowner Motor Inns, 229 F.Supp. 413 (W.D. Mo.1964). 10 The S......
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