NLRB v. HOD CARRIERS'BUILDING & GEN. LAB. U., LOCAL NO. 652

• Decision Date: 27 September 1965
• Docket Number: No. 19708.,19708.
• Citation: 351 F.2d 151
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOD CARRIERS' BUILDING & GENERAL LABORERS' UNION OF AMERICA, LOCAL NO. 652, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.2d 151 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOD CARRIERS' BUILDING & GENERAL LABORERS' UNION OF AMERICA, LOCAL NO. 652, AFL-CIO, Respondent.

No. 19708.

United States Court of Appeals Ninth Circuit.

September 27, 1965.

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

Alexander H. Schullman, Los Angeles, Cal., for respondent.

Before MADDEN, Judge of the United States Court of Claims, and JERTBERG and DUNIWAY, Circuit Judges.

JERTBERG, Circuit Judge:

This case is before us on the petition of the National Labor Relations Board for an enforcement of its order issued against respondent pursuant to Section 10(c) of the National Labor Relations Act, as amended, (29 U.S.C. § 151 et seq.) The Board's decision and order are recorded at 147 N.L.R.B., No. 50. This court has jurisdiction of the proceedings under Section 10(e) of the Act.

The Board found, upon charges filed by one Waverly Arnold Brown, an individual, that respondent violated Section 8(b) (1) (A) and (2) of the Act by refusing to refer Brown for employment by Earl C. Worley, the employer, and by subsequently causing Worley to discharge Brown because of his violation of a union work rule and because of Brown's filing of an Unfair Labor Practice charge against the respondent. In its order the Board adopted the findings and conclusions of the Trial Examiner contained in his decision, and adopted with minor modifications the recommended order of the Trial Examiner.

On this appeal respondent contends:

1. That the Board lacks jurisdiction of the proceedings because:

(a) "There is no interstate commerce involved in this case"; and

(b) "There would be no jurisdiction with respect to this matter, since both the charging party and the twenty-first region failed to exhaust the substantive and procedural remedies involved"; and

2. "The findings of fact and conclusions of law and the order of the board are not in accordance with law, and are not supported by substantial evidence on the record considered as a whole."

We consider these contentions seriatim.

The charging party in this case is a plaster machine operator, a long time member of the Union, and employed by Earl C. Worley, a lathing and plastering contractor between whom and the Union existed a collective bargaining agreement.

During 1962, the applicable period for jurisdictional purposes, Worley performed lathing and plastering services as a subcontractor for Cal-Or, Inc., a California corporation engaged in the general contracting business.

In its decision and order the Board states:

"No evidence was adduced to show that Worley (1) either shipped goods or furnished services outside the State (direct out-flow), (2) purchased goods or services which were furnished directly to him from outside the State (direct inflow), or (3) purchased goods or services from a seller within the State who received such goods or services from outside the State (indirect inflow)."

The record reveals, however, that Cal-Or paid Worley, in 1962, for lath and plaster work performed by him in that year on houses built by Cal-Or on the Anaheim Tract, the sum of $69,825.00. During the same year Cal-Or purchased major appliances for over $18,000.00 which were installed in the houses on the Anaheim Tract. These appliances were manufactured in eastern states and shipped by the manufacturer to its warehouse in California from which point they were delivered to Cal-Or. The Anaheim Tract was owned by Anaheim Properties, a limited partnership. The general partner was Ronal Development Company, a California corporation, which managed the operational affairs of Anaheim Properties. Anaheim Properties contracted with Cal-Or, Inc., for the latter to be the general contractor and to build forty-nine residential homes on the Anaheim Tract. Funds for such construction were obtained by Anaheim Properties through so-called construction loans and furnished by Anaheim to Cal-Or, Inc. These homes were sold in 1962 by Anaheim Properties through Westhome, Inc., a California corporation, licensed as a real estate broker for the State of California and engaged in the business of selling real estate, for more than $1,100,000.00.

One Alvin R. Stitch was president of Cal-Or, Inc., president of Ronal Development Company, and president of Westhome, Inc. He was also the owner of a majority of the capital stock of each of said corporations. Stitch, his wife, and his sister composed the board of directors of Cal-Or, Inc., and he, his wife, and one Donald Kelly composed the board of directors of Ronal Development Company. The three corporations and Anaheim Properties shared the same offices, and rental payments therefor. All of the entities employed the same firm of accountants and kept their business records in the common office. Salaries of common office employees were shared according to the amount of work performed for each of the four entities. Separate bank accounts were maintained but Stitch signed the checks drawn upon said accounts. Stitch managed all of the business operations and affairs for all of the entities, and established all labor policies other than the labor policies by which Cal-Or, Inc., was bound by virtue of a written agreement with the Union and Home Builders' Association, an employer association, which acted as representative of its members for the purpose of collective bargaining, and in which employer association Cal-Or, Inc., held membership.

Upon the foregoing the Board concluded that since the four entities were under the common control, ownership and management of Stitch, that they constituted a single employer for jurisdictional purposes. See Sakrete of Northern California, Inc., v. N.L.R.B., 332 F.2d 902 (9th Cir. 1964), C.D. 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556, rehearing denied, 380 U.S. 926, 85 S.Ct. 883, 13 L.Ed.2d 814.

Under standards it has developed the Board will assert jurisdiction over nonretail enterprises which do a gross annual business of at least $500,000.00¹ and over nonretail enterprises which have an outflow or inflow across state lines of at least $50,000.00, whether such outflow or inflow be regarded as direct or indirect.² Thus an employer satisfies the Board's "indirect outflow" standard for nonretail enterprises if he performs annual services valued at a minimum of $50,000.00 for an employer who meets any of the Board's jurisdictional standards except the Board's indirect outflow or indirect inflow standards for nonretail enterprises. Accordingly the Board held that since Worley performed services for the four entities...