City Line Open Hearth, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1963

141 N.L.R.B. 799 (N.L.R.B. 1963)

CITY LINE OPEN HEARTH, INC. 799
City Line Open Hearth , Inc. and Hotel , Motel & Club Employees
Union, Local 568, AFL-CIO. Case No. A0-51. March 26, 1963
ADVISORY OPINION
This is a petition filed on January 25, 1963, by Hotel, Motel & Club
Employees Union, Local 568, AFL-CIO, herein called the Petitioner,
for an Advisory Opinion in conformity with Sections 102.98 and
102.99 of the Board's Rules and Regulations, Series 8, as amended.
On February 1, 1963, City Line Open Hearth, Inc., herein called
the Employer, filed a response to petition for Advisory Opinion.
Thereafter, Bennet F. Schauffler, Regional Director for the Fourth
Region of the National Labor Relations Board, herein called the
Regional Director, filed a motion to intervene setting forth the jurisdic-
tional facts developed in his investigation of the unfair labor practice
charges in Case No. 4-CC-231 and of the representation petition in
Case No. 4-RM-434, filed by the Employer. On February 11, 1963,
the Employer filed a response to motion to intervene, in which it
moved that the Regional Director's request to intervene be denied.
Contrary to the Employer, the motion of the Regional Director to
intervene is hereby granted.
In pertinent part, the petition, responses, and intervention show
as follows :
1. The Petitioner, a labor organization within the meaning of Sec-
tion 2(5) of the National Labor Relations Act, is a party defendant
to an injunction action, in equity, in the Court of Common Pleas No.
5 of Philadelphia County, Pennsylvania, as of No. 2419 of the Decem-
ber 1962 term of said court. At the hearing on January 21, 1963, 1 he
court enjoined the Petitioner from continuing to picket the premises
at 4444 City Line Avenue, Philadelphia, Pennsylvania, where the
Employer operates a restaurant, kitchen, and cocktail lounge. The
Petitioner alleges in its petition that it commenced picketing on
November 14, 1962, in order to advise the public that the Employer
does not have a contract with the Petitioner.
2. Since November 19, 1962, the Employer, a Pennsylvania corpora-
tion, has been engaged in operating a restaurant, kitchen, and cocktail
lounge at 4444 City Line Avenue, Philadelphia, Pennsylvania. For
the more than 2-month period between November 19, 1962, the date
operations began, and January 30, 1963, the date of the response to
petition for Advisory Opinion, the Employer's gross sales figures did
not total $500,000. However, the Employer concedes "that at the cur-
rent rate of volume," [its first year's total receipts] "should be higher
than $500,000." In addition, in the operation of its business, the Em-
ployer does not deny that it utilizes alcoholic and nonalcoholic bever-
ages, meats, produce, and other types of food and supplies which were
141 NLRB No. 74.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufactured and originate outside the Commonwealth of Pennsyl-
vania to an extent of at least $10,000 per annum.
3. Open Hearth, Inc., herein called Open Hearth, is a Pennsylvania
corporation which operates a restaurant at 1321 W. Cheltenham Ave-
nue, Melrose Park, Pennsylvania. It has an annual gross volume of
business in excess of $500,000 and makes purchases of alcoholic and
nonalcoholic beverages, food, produce, and other products which
,originate outside the Commonwealth of Pennsylvania. The Employer
is owned by the same persons who are the sole stockholders in Open
Hearth. Both the Employer and Open Hearth pursue common person-
nel policies and utilize a common administrative setup under which
purchases for both corporations are made from a common source of
supply; records and bookkeeping are done at a single, centralized
source, and the various officers of both corporations act in the same
capacity with reference to each corporation.
4. There have been no findings by any court or agency respecting the
aforesaid commerce data.
5. The Regional Director had dismissed the unfair labor practice
charge in Case No. 4-CC-231 on December 11, 1962, because of insuffi-
cient evidence and had dismissed the petition for certification in Case
No. 4-RM-434 on January 17, 1963, because the Petitioner herein had
filed a disclaimer of interest in the representation of the Employer's
employees.
6. The Employer moved to dismiss the Petition for Advisory Opin-
ion or, in the alternative, to defer action thereon until the Court of
Common Pleas of Philadelphia County has resolved the factual ques-
tions underlying the jurisdictional issue. In support of its motion,
the Employer contends that: (a) there is an unresolved dispute as to
the Board's statutory or legal jurisdiction over the operations of the
Employer; and (b) absent an unfair labor practice charge or a repre-
sentation petition, the Board has no legal authority to issue Advisory
Opinions.
On the basis of the above, the Board is of the opinion that:
1. The Employer is a retail enterprise operating a restaurant,
kitchen, and cocktail lounge in Philadelphia, Pennsylvania.
2. Although the Employer's gross volume of business for the more
than 2-month period of its operations does not total $500,000, it con-
cedes that, at the current rate, such business, if projected over a 1-year
period, would exceed $500,000.' In addition, it is not disputed that
the Employer makes at least $10,000 annual purchases of beverages,
food, and supplies which are manufactured and originate outside the
Commonwealth of Pennsylvania.
'See Quality Coal Corporation, 139 NLRB 492 ; Wallace Shops , Inc, 133 NLRB 36;
Wyoming Radio Inc., 130 NLRB 390; Sequim Lumber and Supply Company, 123
NLRB 1097.
CITY LINE OPEN HEARTH, INC. 801
3. The Board's current standard for exercising jurisdiction over re-
tail enterprises which satisfy its statutory jurisdiction is a gross vol-
ume of business of at least $500,000 per annum' The Employer's
purchase of beverages, food, and supplies manufactured, and originat-
ing from, outside the Commonwealth of Pennsylvania affects com-
merce under the Act and brings its operations within the Board's
statutory jurisdiction,' while its gross volume of business, projected
on an annual basis, meets the dollar-volume test in the Board's stand-
ard for asserting jurisdiction over retail enterprises.
4. Therefore, as indicated above, and contrary to the Employer's
contention, there is no dispute as to the Board's legal jurisdiction over
the Employer's operations under the Act and as to its discretionary
jurisdiction under current jurisdictional standards. Nor does the issu-
ance of the Advisory Opinion herein constitute a declaratory order
within the meaning of Section 5 (d) of the Administrative Procedure
Act. Section 5(d) envisages final adjudications binding upon the
parties. On the other hand, the Board's Advisory Opinions do not
contemplate such binding adjudications, but are merely advisory in
nature, limited to the jurisdictional issue presented 4
5. Further, we find no merit in the Employer's contention that the
Board has no authority to issue Advisory Opinions in the absence of
an unfair labor practice or a representation proceeding. The Board,
through its Regional Offices, has customarily rendered and still renders
informal jurisdictional advice to the public in the normal course of
the administration of the Act whether or not proceedings are pending
before the Board.' This practice serves to help parties determine for
themselves whether or not to seek to invoke the Board's processes. In
addition, since the enactment of Section 14(c) of the Act, State ad-
ministrative and judicial tribunals have become vitally concerned in
jurisdictional advice from the Board even though Board proceedings
may not be pending. Thus, advice from the Board itself can be fruit-
fully utilized by State tribunals to the extent that their jurisdiction
over labor disputes affecting commerce and arguably cognizable under
the Act depends upon whether the Board would assert or decline juris-
diction.' The rendering of advisory services to State tribunals and to
the parties to proceedings before such tribunals flows from the Board's
statutory authority to administer the Act and is an incident of the
Board's responsibilities under the Act even in the absence of pending
Carolina Supplies and Cement Co , 122 NLRB 88; Wallace Shops, Inc., supra.
N.L.R B v Reliance Fuel Oil Corporation, 371 U.S. 224.
* In this connection, it is noted that the Attorney General considered that Section 5(d)
would not affect the validity of similar advisory services rendered by the Securities and
Exchange Commission through its principal officers . See Attorney General's manual on
the Administrative Procedure Act, 1947, at page 59.
5 See Section 101.41 of the Board's Statements of Procedure.
6 See Section 14(c) of the Act and , e g., San Diego Building Trades Council, et al. v.
J S Garmon , et al, 359 U S. 236; but cf . Doyle Smith v. livening News Association,
371 U.S. 195.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board proceedings. Furthermore, the Board's Advisory Opinion pro-
cedures ° are sanctioned under Section 6 of the Act, wherein the Board
is authorized "to make ... such rules and regulations as may be
necessary to carry out the provisions of this Act."
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, on the
facts here present, the Board would assert jurisdiction over the opera-
tions of the Employer with respect to labor disputes cognizable under
Sections 8, 9, and 10 of the Act.
MEMBER RODGERS took no part in the consideration of the above
Advisory Opinion.
7 See Section 102.98 through Section 102.104 of the Board ' s Rules and Regulations and
Section 101.39 through Section 101.41 of the Board's Statements of Procedure.
Extruded Alloys , Inc. and Lloyd J. Scheid and Carolyn J.
Meadows . Case No. 25-CA-1465. March 26, 1963
DECISION AND ORDER
On November 27, 1962, Trial Examiner William R. Ringer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the General Counsel's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed October 13 , 1961 , and an amended charge filed November 20,
1961 , by Carolyn J. Meadows , an individual , the General Counsel of the National
Labor Relations Board, herein called the Board , by the Acting Regional Director
for the Twenty-fifth Region , issued his complaint dated December 1, 1961 , against
Extruded Alloys, Inc., herein called the Company , and against Lloyd J. Scheid,
individually . The Company and Scheid are herein referred to collectively as the
141 NLRB No. 78.