Hilaire's Encore

National Labor Relations Board - Board Decisions

Dec 2, 1968

173 N.L.R.B. 1053 (N.L.R.B. 1968)

LAIREN'S, INCORPORATED 1053
Lairen 's, Incorporated d/b/a Hilaire 's Encore and
State of Oregon , Ex Rel . N.O. Nilsen , Commis-
sioner of the Oregon Bureau of Labor. Case
AO-113
December 2, 1968
ADVISORY OPINION
This is a petition filed on October 16, 1968, by
Lairen's, Incorporated, d/b/a Hilaire's Encore, herein
called the Employer, for an Advisory Opinion in
conformity with Sections 102.98 and 102.99 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended.
In pertinent part, the petition alleges as follows:
1. There is presently pending in the District Court
of the State of Oregon for the County of Multnomah,
Case No. 52011, an action for collection of wages,
statutory penalties, interest and attorneys' fees, filed
against the Employer by the State of Oregon, Ex Rel.
N.O. Nilsen, Commissioner of the Oregon Bureau of
Labor, herein called the Bureau, alleging that between
May 1964 and November 1967 a former employee
had been paid at the wrong rate. In the District Court
action, the Employer urges not only that the em-
ployee was paid the rate agreed upon by it, through
a multi-employer bargaining association, and Hotel &
Restaurant Employees & Bartenders International
Union, AFL-CIO, Waitresses Local No. 305, herein
called the Union, but also that the contractural
grievance procedures have not been exhausted. The
Employer further contends that the Bureau is acting
in derogation of the Union's rights to exclusive
representation under Section 9(a) of the National
Labor Relations Act and that the Bureau's attempt in
the District Court proceeding unilaterally to modify
the terms of the applicable collective-bargaining agree-
ment contrary to Section 8(d) of the Act arguably
constitutes a violation of Section 8(b)(3) of the Act.
2. The Employer operates a restaurant and
cocktail lounge in Portland, Oregon, and its gross
annual sales are less than $500,000. Between June 1,
1962, and June 1, 1967, the Employer was a member
of a multiemployer collective-bargaining unit known
as "Restaurants of Oregon Association," herein called
Association, whose 105 active members had annual
gross sales in excess of $500,000. Since July 16,
1967, the Employer has been a member of a
multiemployer bargaining unit, known as "Oregon
Food and Beverage Presidents' Council," herein called
the Council, whose more than 500 members have
annual gross sales well in excess of $500,000.
3. The District Court has made no findings with
respect to the aforesaid commerce data.
4. There is no representation or unfair labor
practice proceeding involving the same labor dispute
now pending before the Board.
5. Although served with a copy of the petition for
Advisory Opinion, no response as provided by the
Board's Rules and Regulations has been filed by the
Bureau.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is engaged in the operation of a
restaurant and cocktail lounge in Portland, Oregon,
and apparently is a retail enterprise.
2. At different times between June 1, 1962, and
the present, the Employer has been a member of the
Association and the Council, groups of 105 and 500
employers respectively, operating in the retail in-
dustry. During this period, the Association and
Council, as multiemployer bargaining units, have had
contractural bargaining relations with the Union.
3. The Board's current standard for exercising
jurisdiction over a retail enterprise falling within its
legal or statutory jurisdiction is a gross annual volume
of business of at least $500,000 (Carolina Supplies
and Cement Co, 122 NLRB 88, 89).
4. If, as appears, the Association and Council, in
which the Employer has been a member, have
bargained collectively with the Union on a multi-
employer unit basis, the Association and Council each
constitute a single employer for jurisdictional pur-
poses.' In these circumstances, the relevant criterion
in determining the Board's jurisdiction is the com-
bined operations of all the employers in the multi-
employer collective-bargaining unit.2 While the Em-
ployer's annual gross volume of business of less than
$500,000 does not meet the Board's discretionary
monetary standard for the assertion of jurisdiction
over retail enterprises, the combined gross volume of
business of each multiemployer bargaining unit, the
Association and Council respectively, satisfies the
Board's monetary standard for retail enterprises.
5. No specific commerce data has been submitted
establishing the Board' s legal or statutory jurisdiction
over the Employer or the Association or the Council.
However, although normally some proof must be
made of the Board's legal jurisdiction,3 it is not
unreasonable to assume , for purposes of this Advisory
Opinion, that, in view of the large number of
members in the Association and Council respectively,
the Board 's legal or statutory jurisdiction over these
1 Howard Disposal Corp, 155 NLRB 1108, Darby Electric Corp., 2 Belleville Employing Printers, supra.
153 NLRB 717, Painting and Decorating Contractors Association of 3 Westside Market Owners Association, supra, see A.A.A. Air Duct
Orange County, Inc, 147 NLRB 1, Westside Market Owners Associa- Cleaning Co, 169 NLRB No. 137.
non, 126 NLRB 167, Belleville Employing Printers, 122 NLRB 350.
173 NLRB No. 162
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
multiemployer bargaining units does exist in fact and
can be established. Since the combined operations of
the multiemployer Association and Council, as single
employers for jurisdictional purposes, each meets the
Board's legal or statutory jurisdiction as well as the
Board's discretionary monetary test for the assertion
of jurisdiction over it, the Board would assert
jurisdiction over the operations of any individual
employer member of the Association and Council,
including the Employer herein.'
Accordingly, the parties are advised under Section
102.103 of the Board's Rules and Regulations, Series
8, as amended, that upon the allegations submitted
and the assumptions made herein, the Board would
assert jurisdiction over the operations of the Em-
ployer with respect to disputes cognizable under
Sections 8, 9, and 10 of the Act. We express no
opinion as to whether the particular dispute giving
rise to the filing of the petition herein is cognizable
under Sections 8, 9, and 10 of the Act.
4 See cases in fn. I