B.J.S. Drugs, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1979

243 N.L.R.B. 830 (N.L.R.B. 1979)

10DEC(ISIONS OF NATIONAL I.ABOR RELATIONS BOARD)
B.J.S. Drugs, Inc. and 21 Regent Drive Corp., operat-
ing SM Pharmacy of Waldbaums and District 1199,
National Union of Hospital and Health Care Em-
ployees, RWDSU, AFL-CIO and New York State
Labor Relations Board. Case AO 215
July 31, 1979
ADVISORY OPINION
A petition for an Advisory Opinion was filed on
May 22. 1979, by 21 Regent Drive Corp., operating
SM Pharmacy of Waldbaums, herein called the Peti-
tioner, pursuant to Sections 102.98 and 102.99 of the
National Labor Relations Board Rules and Regula-
tions. Series 8, as amended, seeking a determination
that jurisdiction over certain unfair labor practice
proceedings pending against the Petitioner before the
New York State Labor Relations Board, herein called
the State Board, rests exclusively with the Board. On
June 7, 1979, the Board's Regional Director for Re-
gion 29 filed a motion to intervene in which he set
forth commerce information developed in the course
of his investigation of an unfair labor practice charge
filed against B.J.S. Drugs, Inc., herein called the
B.J.S. t Thereafter, on June 11, 1979, the State Board,
by its counsel, filed a statement urging that the Board
advise that the State Board had and retains jurisdic-
tion to process the unfair labor practice proceedings
pending before it. In an affidavit filed on June 13,
1979, the Petitioner, by its counsel, opposed the posi-
tion of the State Board.
In the pertinent part the petition, motion to inter-
vene, statement, and affidavit allege as follows:
I. Pending before the State Board is the consoli-
dated complaint of September 19, 1978, based upon
unfair labor practice charges in Cases SU-51609,
SU-51630, SU-51631, and SU-51664 filed on June
13 and 21 and July 18, 1978, respectively, against the
Petitioner by District 1199, National Union of Hospi-
tal and Health Care Employees, RWDSU, AFL-
CIO, herein called district 1199. After a hearing, the
State Board's chief Administrative Law Judge issued
his intermediate report on March 21, 1979, finding
that the Petitioner, on April 28, 1978, had, as a suc-
cessor employer, unlawfully refused to hire an em-
ployee and, on June 1, 1978, had unlawfully dis-
charged another employee. Shortly before the
intermediate report was issued, the Petitioner raised
the question of the State Board's jurisdiction by filing
a motion to dismiss.2 There is also pending in the
Region on unfair labor practice proceeding in Case
The Regional Director's motion to intervene is hereby granted.
2 The intermediate report does not contain commerce data concerning the
Petitioner's operations.
29 CA 7018 filed with the Board by District 1199
against B.J.S.
2. The Petitioner, a New York corporation, oper-
ates a retail pharmacy at 755 Coop City Boulevard.
Bronx, New York, where it sells drugs, health and
beauty aids, and sundries. It is a wholly owned sub-
sidiary of B.J.S. which operates retail pharmacies in
both North Patchogue, New York, and Forest Hills,
New York. The corporate parent and its subsidiary
have common ownership, common labor policies, and
central administration. During the 12-month period
ending February 29, 1979, the combined sales of the
three operations were approximately $1,050,000 of
which $225,000 in sales were made by the Petitioner's
store since it opened in May 1978. During this period
the combined purchases were $750,000 of which
$250,000 constituted direct out-of-state purchases.
while the Petitioner's purchases totaled approxi-
mately $150,000 of which $45,000 constituted direct
out-of-state purchases.'
3. Based on the aforementioned commerce data,
which is not significantly different today., the Peti-
tioner asserts that, notwithstanding the Petitioner's
separate corporate status, the National Labor Rela-
tions Board had jurisdiction in April and June 1978
and still has jurisdiction over the Petitioner. It also
argues that it is not engaged in "forum shopping"
because it raised the jurisdictional issue with the State
Board only after it first learned that the National La-
bor Relations Board was asserting jurisdiction over
B.J.S., the Petitioner's parent.
4. In addition to its "forum shopping" contention,
the State Board asserts that the principal question is
not whether the Board would assert jurisdiction over
current proceedings--it concedes current Board juris-
diction-but whether the Board would have asserted
jurisdiction in April and June 1978 when the unfair
labor practices in the State Board proceedings were
allegedly committed. It noted that the Petitioner was
a corporate entity separate from its parent, and its
annual gross volume of business is only $225,000, far
below the Board's $500,000 test for retail enterprises.
5. The Regional Director agrees with the State
Board that jurisdiction over the Petitioner as to the
State Board case would depend upon the jurisdic-
tional facts on April 28 and June 1, 1978, when the
unfair labor practices found by the State Board oc-
curred. Except as alleged in the complaint, admitted
by the answer in Case 29-CA-7018, and set forth in
the Petitioner's submission herein, he had no other
jurisdictional facts.
'As set forth in the Regional Director's motion to intervene, the complaint
in the proceeding in Case 29 CA-7018 alleged and the answer admitted that
Respondent B.J.S. had annual gross revenues in excess of $500,000 and di-
rect out-of-state purchases of goods and material in excess of $50.000.
243 NLRB No. 129
830
B.J.S. DRUGS. INC.
6. No party to the State Board proceedings has
disputed the commerce data alleged herein, and the
State Board has made no findings with respect
thereto.
7. No proceeding involving the labor dispute be-
fore the State Board is pending before the Board.
8. Although notified of the instant proceeding, dis-
trict 1199 has not filed a response to the petition.
On the basis of the foregoing, the Board is of the
opinion that:
1. The Petitioner, a New York corporation, is a
wholly owned subsidiary of B.J.S. and is a retail en-
terprise engaged in operating a retail pharmacy at
755 Coop City Boulevard, Bronx, New York. Like its
subsidiary, the corporate parent operates retail phar-
macies in Forest Hills, New York, and North Patch-
ogue, New York. The Petitioner subsidiary and its
parent, B.J.S., have common ownership, common la-
bor policies, and central administration and appear to
be a single integrated retail enterprise.
2. The Board's standard for the assertion of juris-
diction over retail enterprises which fall within its
statutory jurisdiction is a gross annual volume of
business of at least $500,000. 4 As the combined out-
of-state purchases of the Petitioner and B.J.S. estab-
lish statutory jurisdiction, and as their combined op-
4 Carolina Supplies and Cement Co.. 122 NLRB 88 (1958).
erations currently meet the $500,000 test for retail en-
terprises, we would assert jurisdiction over them as a
single integrated retail enterprise.
We do not reach or pass upon the opposing conten-
tions advanced by the parties herein wiih respect to
the State Board's alleged jurisdiction over the Peti-
tioner when the unfair labor practices found in the
State Board proceedings occurred, as an Advisory
Opinion proceeding is primarily for the purpose of
determining whether an employer's operations in
commerce meet the Board's discretionary standard
for asserting jurisdiction.5 Questions involving the
merits of the alleged unfair labor practices or whether
the subject matter of the dispute is governed by the
National Labor Relations Act, as amended, are sub-
stantive matters not resolvable in this proceeding.6
Accordingly, the parties are advised, under Section
102.103 of the Board's Rules and Regulations, Series
8, as amended, that on the allegations herein made
the Board would currently assert jurisdiction over the
integrated operations of the Petitioner and B.J.S. with
respect to labor disputes cognizable under Sections 8,
9, and 10 of the Act.
5 The Ship's Wheel. Inc., 221 NLRB 1129 (1975): Anziano Building (Com-
panvy. Inc., 221 NLRB 494(1975); ale-N'ew Haven Hospital. 214 NlRB 130
(1974), and cases cited in fn. 4 thereof.
6 The Ship's Wheel, Inc. supra; Anziano Building Compan-. Inc, supra See
also Sec. 101.404e) of the Board's Rules and Regulations and Statements of
Procedure. Series 8. as amended
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