Robbins & Robbins, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1965

152 N.L.R.B. 1463 (N.L.R.B. 1965)

ROBBINS & ROBBINS, INC. 1463
Employees may communicate directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No. 334-2611,
if they have any questions concerning this notice or compliance with its provisions.
Robbins & Robbins, Inc. and Hotel , Restaurant Employees and
Bartenders Union , Local 178, AFL-CIO. Case No. A0-85.
June 11,1965
ADVISORY OPINION
This is a petition filed on May 3,1965, by Hotel, Restaurant Employ-
ees and Bartenders Union, Local 178, AFL-CIO, herein called the
Petitioner, for an Advisory Opinion in conformity with Section 102.98
and 102.99 of the National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended. Thereafter, on May 5, 1965, Robbins
& Robbins, herein called the Employer, filed a reply to petition for an
Advisory Opinion.
In pertinent part, the petition and reply allege as follows :
1. There is pending in the Supreme Court of the State of New York
in the County of Westchester an action bearing Index No. 1336,/1965
in which the Employer seeks a permanent injunction restraining the
Petitioner from picketing.
2. The Employer is engaged in the kosher catering industry with its
general offices, warehouse, and commissary located at 15 Mechanic
Street, New Rochelle, Westchester County, New York. It caters func-
tions at hotels, temples, and private homes in New York, New Jersey,
Connecticut, and Massachusetts for its customers and their families,
but not for resale. Its annual gross volume of business, as alleged in
the State court action, was and still is under $500,000.
3. On April 23,1962, the Employer filed with Region 2 of the Board,
a petition for certification of representatives in Case No. 2-RM-1216.
In answer to the Region's commerce questionnaire, the Employer stated
that it annually received $50,000 or more for goods sold or services
rendered directly outside the State of New York and conceded that "it
is engaged in Interstate Commerce and is subject to the jurisdiction of
the National Labor Relations Board." In these circumstances, the
Region processed the Employer's representation petition.
4. Subsequently, the petition was dismissed by the Regional Office
because the Employer, a member of an employer association whose
annual gross volume of business exceeded $500,0000, had untimely
attempted to withdraw from the multiemployer bargaining unit after
actual bargaining had begun in which the Employer had participated.
On June 29, 1962, the Board denied the Employer's request for review
from the Region's dismissal despite the fact that the Employer was
no longer a member of the employer association, having resigned there-
from in 1961, prior to the filing of the petition in Case No. 2-RM-1216.
152 NLRB No. 151.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. A contract between the employer association and the Petitioner
covering the multiemployer bargaining unit was executed February
1962 and expired by its terms on July 31, 1964. All acts complained of
in the current State court litigation occurred subsequent to July 31,
1964. The Employer has not been a part of any multiemployer bar-
gaining unit at any time since its withdrawal in late 1961 from the
multiemployer unit referred to in Case No. 2-RM-1216.
6. In the State court action, the Petitioner moved to dismiss the
Employer's injunction complaint on the ground of Board preemption.
In opposition, the Employer argued that it was at all times and pres-
ently is a retail business whose annual gross revenues was and still is
under $500,000, and that the Region asserted jurisdiction in the repre-
sentation proceeding because it had been a member of an employer asso-
ciation. In denying the Petitioner's motion to dismiss and the Employ-
er's motion for a temporary injunction , the court stated that there
was "an arguable question of jurisdiction , determination of which must
be left in the first instance to the National Labor Relations Board ...
unless the Board has declined jurisdiction ... pursuant to Section 14
..." and that "whether the Board had declined jurisdiction cannot be
determined from the papers submitted."
7. There is no representation or unfair labor practice proceeding
involving the same labor dispute 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 kosher catering
business in New York, New Jersey, Connecticut, and Massachusetts.
Its general offices, warehouse, and commissary are located in New
Rochelle, New York.
2. The 1962 contract between the employer association and the Peti-
tioner expired on July 31 , 1964. No contention has been made that the
Employer withdrew its resignation from the association or that it par-
ticipated in any way in associationwide or multiemployer bargaining in
connection with renewing that agreement. In the light of these cir-
cumstances , it is assumed for purposes of this determination that the
Employer is no longer a member of the employer association and that
its employees are not a part of a multiemployer bargaining unit.
Accordingly , the jurisdictional issue herein is determined in the light
of the Employer 's operations alone.
3. The Board's current standard for the assertion of jurisdiction
over retail enterprises within its statutory jurisdiction is an annual
gross volume of business of at least $500,000. Carolina Supplies and
Cement Co., 122 NLRB 88, 89.
4. The annual sales and services rendered directly outside the State
of New York, constituting outflow under Siemons Nailing Service, 122
NLRB 81, 85, establish the Board's legal or statutory jurisdiction over
the Employer . However, the Employer 's annual gross volume of
LOCAL 69, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1465
business has been and still is under $500,000, and it would not meet
the test for invoking the Board's discretionary standard for the asser-
tion of jurisdiction over retail enterprises.
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 allegations
submitted herein do not establish that the Employer's operations meet
the Board's standard for asserting jurisdiction over retail enterprises.
MEMBER ZAGORIA took no part in the consideration of the above
Decision and Order.
Local 69, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO and Bellezza Company, Inc. Case No. 22-
CD-93. June 14, 1965
DECISION AND ORDER
Upon a charge filed on April 9, 1964, by Bellezza Company, Inc.,
herein called the Company, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 22, issued a com-
plaint on December 8, 1964, against Local 69, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, herein called the
Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (D) of the National Labor Relations Act, as
amended. In substance, the complaint alleges that the Respondent
violated the Act by engaging in picketing activities with an object of
forcing or requiring the Company to assign the work of installing
nonmetallic outside sanitary and stormsewers to employees represented
by the Respondent, rather than to employees represented by Local
472, International Hod Carriers, Building and Common Laborers
Union of America, AFL-CIO, herein called the Laborers. The
Respondent filed an answer to the complaint, denying the commission
of any unfair labor practices.
On March 3, 1965, the parties entered into a stipulation submitting
the proceeding directly to the Board for the issuance of findings of
fact, conclusions of law, and a Decision and Order. It was agreed that
the entire record in this case shall consist of : the transcript of testimony
and exhibits in the prior Section 10 (k) proceeding ; 1 the formal papers
'On November 9, 1964, in a proceeding pursuant to Section 10(k), the Board issued
its Decision and Determination of Dispute ( 149 NLRB 675), in which the Board con-
cluded that employees of the Company represented by the Laborers were entitled to
perform the work in dispute.
152 NLRB No. 154.