The Mill Cafe

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1746 (N.L.R.B. 1965)

1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonunion subcontractor, we shall continue to find a violation of Section
8 (b) (4) (B), although a simultaneous object is to secure a subcontract-
ing clause valid under the construction industry proviso to 8(e) 8 As
the facts of the instant case clearly wall within that rule, and as the
presence of such an objective was expressly alleged in the complaint
and fully litigated by the parties, we also reaffirm our previous finding
that Respondent violated Section 8(b) (4) (B) by using pressures to
force Fiesta's removal from the project.
As we have modified our findings in this case, we shall modify our
Order to conform herewith.
ORDER
IT IS HEREBY ORDERED that the Decision and Order issued on Janu-
ary 10, 1964, be, and it hereby is, amended in the following manner:
(1) Delete paragraph 1(c) of the Order, renumber paragraph 1(d)
as the new paragraph 1(c) .
(2) Delete the following paragraph from the notice:
WE WILL NOT maintain, enforce, or apply, or attempt to apply,
sections IV or V of the contract executed by the Employers herein,
except to the extent that the voluntary execution or enforcement
of contracts with such provisions is otherwise permitted by law.
8 148 NLRB 854.
Joseph Makula and John Cipriano , d/b/a The Mill Cafe and
Hotel and Restaurant Employees and Bartenders International
Union , AFL-CIO, Local 573; Otho Pulliam ; Carl West; and
Ann Belk. Case No. A0-88. September 27, 1965
ADVISORY OPINION
This is a petition filed on August 23, 1965, by Joseph Makula, and
John Cipriano, d/b/a The Mill Cafe, herein called the Petitioners, for
an Advisory Opinion in conformity with Section 102.98 and 102.99
of the National Labor Relations Board's Rules and Regulations,
Series 8, as amended. Thereafter, on September 1, 1965, Hotel and
Restaurant Employees and Bartenders International Union, AFL-
CIO, Local 573, herein called the Union, filed a statement of position,
urging that the Board not assert jurisdiction herein.
In pertinent part, the petition and statement of position allege as
follows :
1. There is pending in the Circuit Court of the Seventh Judicial
Circuit, Macoupin County, Illinois, located at the Macoupin County
Courthouse, Carlinsville, Illinois, a suit based on a complaint for
injunction, Docket No. 65-85, filed by the Petitioners seeking to enjoin
154 NLRB No. 143.
CREW BUILDERS SUPPLY CO. 1747
picketing at the Petitioners' Mill Cafe by the Union and by Otho Pul-
liam, Carl West, and Ann Belk.
2. The Petitioners, a partnership, operate a restaurant and tavern,
known as The Mill Cafe and located on U.S. Route 66 near Mount
Olive in Macupin County, Illinois. The Petitioners' patrons consist
of local people and tourists and transients on U.S. Route 66. The
Union notes that the Petitioners have admitted that their annual gross
volume of business is less than $500,000, although the State court made
no finding with respect to the aforesaid commerce data.
3. In refusing to grant the injunction sought, the State court has
taken the position that "it will decline jurisdiction over this matter
until the National Labor Relations Board has issued an opinion as to
whether or not it will assert jurisdiction over this matter ... [and]
it will not exercise jurisdiction unless and until the National Labor
Relations Board issues an opinion indicating that the Board will not
assert jurisdiction."
4. There is no representation or unfair labor practice proceeding
involving the parties herein pending before the Board.
On the basis of the above, the Board is of the opinion that :
1. The Petitioners are a retail enterprise operating a restaurant
and tavern on U.S. Route 66, near Mount Olive, Macoupin County,
Illinois.
2. 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. The Petitioners' annual gross volume
of business is less than $500,000 and therefore does not meet the mone-
tary 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 on the basis
of the allegations submitted herein, the Board would not assert juris-
diction over the Petitioners' operations.
Crew Builders Supply Co. and Truck Drivers, Chauffeurs and
Helpers Local Union No. 100, International Brotherhood of
Chauffeurs , Teamsters, Warehousemen and Helpers of America.
Case No. 9-CA-3371. September 28,1965
DECISION AND ORDER
On June 29, 1965, Trial Examiner Maurice S. Bush issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
154 NLRB No. 130.