NLRB v. CARPENTERS LOCAL NO. 2133, 20324.

• Decision Date: 10 February 1966
• Docket Number: No. 20324.,20324.
• Citation: 356 F.2d 464
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS LOCAL NO. 2133, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, and Salem Building and Construction Trades Council, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

356 F.2d 464 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS LOCAL NO. 2133, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, and Salem Building and Construction Trades Council, AFL-CIO, Respondents.

No. 20324.

United States Court of Appeals Ninth Circuit.

February 10, 1966.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixsen, Atty., N. L. R. B., Washington, D. C., for petitioner.

Donald S. Richardson, Green, Richardson & Griswold, Portland, Or., for respondents.

Before HAMLEY, HAMLIN and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order requiring Carpenters Local No. 2133 (Union) to cease and desist recognitional picketing at the site where the employer, Leonard V. Ryan, was constructing a motel. Such picketing, the Board found, violated section 8(b) (7) (C) of the National Labor Relations Act (Act), 73 Stat. 544 (1959), 29 U.S.C. § 158(b) (7) (C) (1964). Respondent Union opposes enforcement on the grounds that the Board improperly exercised jurisdiction, and that its finding of a violation of section 8(b) (7) (C) is not supported by substantial evidence.

Ryan is a Salem, Oregon residential builder who also owns all the stock and manages and controls Swept Wing Motel, Inc., in Albany, Oregon. In the construction and furnishing of the thirty-four units of this motel Ryan purchased $54,788.91 worth of materials which were shipped into Oregon from out-of-state sources. The Board held, in effect, that Ryan's operations as builder and furnisher of the motel in connection with which the indicated out-of-state materials were purchased, satisfied the Board's self-imposed and discretionary jurisdictional standard for non-retail establishments. See Siemons Mailing Service, 122 N.L.R.B. 81, 85.

The Union argues, however, that since Ryan is not engaged regularly in the motel construction business, but constructed this motel in order to operate it, the appropriate self-imposed and discretional jurisdictional standard is the Board's retail category, requiring a gross annual volume of business of at least $500,000, and a showing that more than twenty-five per cent of the guests are "transient."

Since during the time in question, Ryan was engaged solely in his capacity as a builder and furnisher of the motel, which was not yet in operation, the Board did not abuse its discretion in using the non-retail standard.

The Union further argues that even if the Board's non-retail jurisdictional standard is applicable, the $50,000 minimum under that standard was not reached because more than half of the $54,000 out-of-state purchases were for motel furnishings, which should have been excluded.

No authority is cited for excluding amounts expended for furnishings and we perceive no good reason why they should be excluded. Ryan was engaged in the business of constructing and furnishing the motel when the picketing took place, and amounts expended for furnishings were thus a part of the described non-retail operation.

Moreover, with respect to both of these arguments, the Board was not bound to adhere to its self-imposed and discretionary jurisdictional standard....