Arena Lounge, Inc.

National Labor Relations Board - Board DecisionsDec 9, 1963

145 N.L.R.B. 315 (N.L.R.B. 1963)

ARENA LOUNGE, INC. 315 not reduced the work formerly performed by the clerks by one iota. The Retail Clerks was thus trying to add to, and not pre- serve, the existing work of its members. As applied, no- subcontracting clauses such as here involved are not traditional work preservation clauses.19 They are not therefore the kind of clauses the enforcement of which-as the court saw it-would constitute primary activity outside the reach of Section 8 (b) (4) 20 IT IS FURTHER ORDERED that the Supplemental Decision and Order, as printed, shall appear as hereby modified. Arena Lounge, Inc. and Chicago Federation of Musicians, Local No. 10, Barney Richards, H. Leo Nye, Erv Trsko, Arch Petti- grew and R. D. Mashan. Case No. AO-67. December 9, 1963 ADVISORY OPINION This is a petition filed by Arena Lounge, Inc., herein called the Employer, for an Advisory Opinion in conformity with Section 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. Thereafter, by letter dated November 15, 1963, the Chicago Federa- tion of Musicians, Local No. 10, herein called the Union, set forth its statement of position in which it requests a full hearing into the Em- ployer's business to determine whether the Employer's operations meet the Board's retail or nonretail jurisdictional standards. The Union's request for a hearing in this proceeding is hereby denied as the Board's Advisory Opinion procedures do not provide for or contemplate such a hearing.' In pertinent part, the petition and statement of position allege as follows : 1. There is pending a Bill in Equity for Injunction in the Circuit Court of Cook County, Illinois, Cause No. 63 C 21388, filed by the Employer against the Union and Barney Richards, H. Leo Nye, Erv Trsko, Arch Pettigrew, and R. D. Mashan, herein called Individuals. In this court action the Employer seeks to restrain the Union and the Individuals "from interfering with the contractual obligation of its [Union's] members and from interfering with and refusing to furnish entertainment as is properly contracted for." The dispute, giving rise to the injunction proceeding, is based upon the Employer's discharge of Arch Pettigrew. In its answer to the Employer's Bill in Equity the Union generally denies the allegations therein and contends that ' , See Board ' s Rules and Regulations , series 8, as amended, Section 102.98-102 . 104 and Statements of Procedures , Section 101 39-101.41. 145 NLRB No. 32. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Act preempts the jurisdiction of the circuit court. 2. The Employer, an Illinois corporation, is in the retail business and conducts a restaurant, cocktail lounge, and supper club known as Imperial West at 103d Street and Cicero Avenue, Oak Lawn, Illinois. 3. The Employer's total gross sales are less than $300,000 annually and are largely founded on the offering of musical entertainment per- formed by members of the Union. In its statement of position, the Union does not affirmatively offer or assert any countervailing allega- tions as to the Employer's commerce data and volume of business but requests a hearing which has been denied. Under these circumstances, we rely upon the jurisdictional facts alleged herein by the Employer. 4. There have been no findings made by the circuit court respecting the aforesaid commerce data. 5. No representation or unfair labor practice proceeding involving the same labor dispute is pending before the Board. On the basis of the above, the Board is of the opinion that : 1. The Employer is a retail enterprise engaged in the operation of a restaurant, cocktail lounge, and supper club in Oak Lawn, Illinois? 2. The Board's current standard for asserting jurisdiction over re- tail enterprises within its statutory jurisdiction is an annual gross volume of business of at least $500,000. Carolina Supplies and Ce- ment Co., 122 NLRB 88, 89. The Employer's annual gross volume of business of less than $300,000 does not meet the retail standard for the assertion of jurisdiction by the Board. Accordingly, the parties are advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that the Board would not assert jurisdiction over the Employer because the allega- tions submitted herein do not establish that the Employer's operations meet the Board's standard for asserting jurisdiction over retail enterprises. 2 Thunderbird Hotel, Inc. and. Joe Well8, et al., Co-Partners , d/b/a Thunderbird Hotel Company, 144 NLRB 84 ; Colonial Catering Company , 137 NLRB 1607, 1608. General Stores, Inc., Petitioner and Retail Clerks International Association , Local 1439, AFL-CIO, Union. Case No. 19-RM- 432. ' December 9, 1963 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer John N. 145 NLRB No. 38.