Front Porch Holding Corp.

National Labor Relations Board - Board Decisions

Nov 7, 1974

214 N.L.R.B. 788 (N.L.R.B. 1974)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Front Porch Holding Corp ., and Front Porch 82, Inc.
and Local 1 , 15, and 89 Organizing Committee.
Case AO-156
November 7, 1974
ADVISORY OPINION
Front Porch Holding Corp., and Front Porch 82,
Inc., hereafter Employer, filed this petition for an
Advisory Opinion on May 24, 1974, in accordance
with Sections 102.98 and 102.99 of the Board's Rules
and Regulations, Series 8, as amended, for a determi-
nation whether the Board would assert jurisdiction
over labor disputes involving Employer. Thereafter,
on May 28, 1974, Employer filed a supplement to the
petition, with an attached memorandum of law. On
June 3 and 10, 1974, respectively, Local 1, 15, and 89
Organizing Committee, herein called the Union, filed
an answer to petition and a brief in support of its
contentions.
In pertinent part, the petition, as supplemented,
the memorandum, the answer, and the supporting
brief allege:
1. There is pending before the New York State La-
bor Relations Board, herein referred to as the State
Board, a proceeding docketed as Case SE-47618, in
which the Union seeks to represent the employees of
one of Employer's restaurants located at 2272 Broad-
way, New York City.
2. Employer owns and operates three retail restau-
rants in and about the city of New York, Borough of
Manhattan, State of New York, which, while orga-
nized as separate corporate entities, have common
officers, president, vice president, directors, and
stockholders, although an additional director and
stockholder were added with the addition of the most
recent restaurant. The three restaurants share a com-
mon menu, and the food for all three is prepared at a
central commissary and distributed to the restau-
rants. The operations manager visits and supervises
each of the restaurants daily.
3. During the year from March 1973 to March
1974, the Employer's restaurant located at 253 West
11th Street grossed approximately $152,000, and the
restaurant located at 2272 Broadway grossed approx-
imately $196,000. The third restaurant, located on
East 86th Street, which commenced operations in
March 1974, grossed approximately $19,000 in
March and $23,000 in April. In the course of its busi-
ness in the past year, Employer purchased food and
other supplies worth approximately $100,000 from
wholesalers within New York, of which in excess of
$60,000 originated from States other than New York.
In addition, Employer purchased $2,000 in goods di-
rectly from sources outside the State of New York.
4. The State Board has made no findings with re-
spect to the aforementioned commerce data, and the
Union denies knowledge or information sufficient to
form a belief as to the validity of the data.
5. No representation or unfair labor practice pro-
ceeding involving the same labor dispute is pending
before the Board.
6. The Union asserts that the jurisdiction issue,
which arose in the State Board proceeding when the
Employer disputed the appropriateness of the single
restaurant unit sought by the Union, would properly
be resolved if the Employer filed an "RM" petition
with the Board for a multirestaurant unit. Essential-
ly, the Union's argument is that because it seeks to
represent only the employees in an appropriate unit
of one restaurant, the Board can only consider the
commerce data relating to that restaurant, as to con-
sider the commerce data of all three restaurants
would be to permit the Employer to dilute the single-
restaurant employees' interest in representation by
the Union.
7. The Employer's position, in effect, is that be-
cause of the common ownership and control, central-
ized supervision, centralized food preparation, and
common menu, it is a single integrated retail enter-
prise, all of whose commerce data must be consid-
ered in determining the jurisdictional issue.
Upon due consideration of the foregoing, the
Board is of the opinion that:
The Employer is a retail enterprise operating three
restaurants in the city of New York, which, for pur-
poses of this Advisory Opinion, it is reasonable to
assume constitutes a single integrated retail enter-
prise.'
As indicated above, the Employer contends that it
is Board policy to consider the totality of an
employer's operations in determining the jurisdic-
tional issue, while the Union contends that the
Board's consideration should be limited to the opera-
tion of the single restaurant whose employees it seeks
to represent. We find merit in the Employer's posi-
tion. It is customary to consider for jurisdictional
purposes the total combined commerce data of all of
an employer's operations I and not only part of the
operations, as the Union contends. Further, the
Union is basically raising a unit question. Such a
question does not fall within the intendment of the
Board's advisory opinion determinations, which are
limited to the jurisdictional issue confronting it, i.e.,
whether the commerce operations of the employer
are such that the Board would assert jurisdiction over
1 Swift Cleaners, Inc, B Gross, and B Gross Men's Wear, Inc, 191 NLRB
597 (1972).
2 See, e g, Aid
214 NLRB No. 117
FRONT PORCH HOLDING CORP.
them under its standards;' and which do not presume
to render opinions on the merits of the case or on the
question of whether the subject matter of the dispute
is governed by the Act .4 Accordingly, we shall con-
sider the combined annual gross volume of business
of the Employee's three restaurants for jurisdictional
purposes.
The current standard for the Board's assertion of
jurisdiction over a retail enterprise which falls within
its statutory jurisdiction is that such an enterprise
must do a gross volume of business totaling at least
$500,000 annually.' The total annual gross volume of
Employer's two restaurants which have been estab-
lished for a year or more is $348,000. The gross vol-
3 See Puerto Rico Labor Relations Board (Landrum Mills Hotel Corp d/b/a
Hotel La Concha), 138 NLRB 1451 (1962)
Sec 101 40(e) of the Board 's Rules and Regulations , see Terrizzi Bever-
age Company, 137 NLRB 495, 498 (1962), Spears-Dehner, Inc, 139 NLRB
922 (1962)
5 Carolina Supplies and Cement Co, 122 NLRB 88 (1958)
789
ume of business for the Employer's recently opened
third restaurant was $42,000 for 2 months which, if
projected to an annual basis and added to the gross
volume of business from the other two restaurants,
meets the Board's dollar volume standard for assert-
ing its statutory jurisdiction over retail enterprises.6
The $2,000 purchases directly from outside the State
of New York and the purchases in excess of $60,000
from local wholesalers who in turn purchased the
goods from outside the State of New York constitute
sufficient direct and indirect inflow to bring the
Employer's total operations within the Board's statu-
tory jurisdiction.
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 assert jurisdiction over the opera-
tions of the Employer with respect to labor disputes
cognizable under Sections 8, 9, and 10 of the Act.
6 Culinary Alliance and Bartenders Local No 425 of the Hotel and Restau-
rant Employees and Bartenders International Union , AFL-CIO (Edelweiss,
Inc), 205 NLRB 236 (1973)