The activity of Defendant of which Plaintiff complains was threats to stop all work of the construction projects of contractors where Plaintiff was engaged unless these parties terminated their contracts with the Plaintiff.
The jurisdictional requirement of the statute is satisfied if the secondary employer against whom the threats were made is engaged in an industry affecting interstate commerce. Burman, Inc. v. Local 3, Inter. Bro. of Elec. Wkrs. supra.
In his evidentiary material Plaintiff has produced his own affidavit as to the interstate character of the project on which he was working, the amounts of materials supplied to the prime contractors through the channels of interstate commerce, and the total cost of the project. In addition Plaintiff has produced the record of the National Labor Relations Board proceeding of unfair labor practice by this Defendant upon complaint of the present Plaintiff, at Case No. 6-CC-595. Therein it was alleged that Heinlein, Inc., Trico Electric Inc., and Althof, Inc. were all contractors engaged in building an industrial building and that Defendant's agent threatened to stop all work on the project upon which they were engaged unless Althof, Inc. terminated its excavation contract on the project with Tucci, the present Plaintiff. It was stipulated in that proceeding by the present Defendant that Heinlein, Inc., Trico Electric Inc. and Althof, Inc. were at all times material engaged in commerce within the meaning of the National Labor Relations Act, and the decision and order of the N.L.R.B. so found.
We recognize that the N.L.R.B. proceeding is an independent proceeding and that the Board's findings are not res judicata in a suit under 29 U.S.C. § 187. But the stipulation and admission made by the present Defendant in that case supplies evidentiary material which this court can consider in disposing of Defendant's present motion. None of the factual representations made by Plaintiff in support of his claim to jurisdiction are disputed. Defendant has produced no proof to the contrary. It rests upon its assertion that Plaintiff's own business is insufficient to affect interstate commerce. We hold that not to be essential.
Defendant's references to Local 384 International Brotherhood of Teamsters, Inc. v. Patane, 232 F. Supp. 740 (E.D. Pa. 1964), and Hiatt v. Schlecht, 400 F.2d 875 (9th Cir. 1960) are not pertinent. Both cases involve suits by a union to enforce provisions of its collective bargaining agreement against an employer and both were dismissed for failure to show that the defendant employer was engaged in interstate commerce. We do not believe that the decision in Groneman v. International Brotherhood of Electrical Workers, Local Union No. 354, 177 F.2d 995 (10th Cir. 1949) is controlling in view of the facts disclosed in that opinion showing doubt as to whether any secondary boycott existed, and the limitation of the effect of any unlawful activity solely to the plaintiff, whose interstate activity was minimal. It is noted that this case preceded the 1959 amendment of the Act, referred to above.
We therefore hold that Plaintiff has supported his jurisdictional allegations and that Defendant's motion must be denied.
And now, this 17th day of September, 1970, It is Ordered that Defendant's Motion to Dismiss for Lack of Jurisdiction be Denied.
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