Jackson's Party Service

National Labor Relations Board - Board Decisions

Feb 25, 1960

126 N.L.R.B. 875 (N.L.R.B. 1960)

JACKSON'S PARTY SERVICE 875
action of the type conventionally ordered in such cases, which I find necessary
to remedy and remove the effects of the unfair labor practices and to effectuate the
policies of the Act. See e.g., Broderick Wood Products Company , supra.
The General Counsel seeks application of the Brown-Olds remedy, J. S. Brown-
E. F. Olds Plumbing & Heating Corporation ( United Association of Journeymen
etc., 115 NLRB 594, i .e., the reimbursement of all dues and fees collected from
employees under the illegal clause. Although the evidence showed that no checkoff
of dues was made until after 30 days of employment , the Board in Local 138,
International Union of Operating Engineers , AFL-CIO, et al. (Nassau and Suffolk
Contractors ' Association ), 123 NLRB 1393, overruled its decisions in Farnsworth
and Chambers 122 NLRB 300 and Rochester Davis-Fetch Corporation , 122 NLRB
269, to the extent that those decisions held that proof of actual exaction of moneys
from employees under an unlawful contract is required to warrant the remedy of
reimbursement , and stated its present rule to be as follows:
[T]he existence of an unlawful contract is sufficient in and of itself to estab-
lish the element of coercion in the payment of moneys by employees pursuant
to the requirements of such a contract . Accordingly , the above remedy is
applicable to all closed -shop and exclusive hiring-hall agreements , which do not
provide the safeguards set forth in the Mountain Pacific decision (119 NLRB
883, 893 ) whether or not proof of actual exaction of payments is established.
As the Board has elsewhere asserted that application of the Brown -Olds remedy
"lies within [ its] exclusive jurisdiction ," Gay Engineering Corporation , 124 NLRB
451, and as it is speculative to predict what considerations of equity and justice
may appeal to it (see e.g. Morrison -Knudsen Company , Inc., et al., d/b/a Robinson
Bay Lock Constructors, 123 NLRB 12, and the Intermediate Report in that case;
and see the Intermediate Report in The Ingalls Steel Construction Co., 126 NLRB
584, I shall recommend the customary Brown-Olds remedy for the period since
July 27, 1958.
[Recommendations omitted from publication.]
James D. Jackson d/b/a Jackson 's Party Service and Retail
Food Clerks Union , Local 870. Case No. A0-5. February 25,
1960
ADVISORY OPINION
A petition has been filed by James D. Jackson, doing business as
Jackson's Party Service, herein called the Employer, pursuant to Sec-
tion 102.98 of the Board's Rules and Regulations, praying for an ad-
visory opinion by the Board as to whether it would assert jurisdiction
over the operations of the Employer on the basis of its current juris-
dictional standards. It appears from said petition that :
1. The Employer is engaged in the business of "retail sale of inter-
state liquors, foods, and tobaccos." His place of business is not given.
"In every year involved in the State Court proceeding [described in
paragraph 2 herein], [the Employer] has done business in excess of
$500,000."
2. Retail Food Clerks Union, Local 870, alleged to be "a corpora-
tion," herein called the Union, has brought an action in the Alameda
County Superior Court, State of California, which has been docketed
as No. 302927. The defendant in said action is not given. Said action
is alleged to be "a petition for an order directing that arbitration
proceed."
126 NLRB No. 101.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union contends that the Employer has unlawfully refused
to bargain, and the Employer contends that the Union is violating
8(b) (1) (A), (2), and (4) of the National Labor Relations Act, as
amended.
4. No response has been received from the Union.
On the basis of the above, the Board is of the opinion that :
1. The Employer is engaged in the business of selling liquors, foods,
and tobaccos at retail.
2. The Board's current standard for exercising jurisdiction over
a retail concern which falls within its statutory jurisdiction is a mini-
mum gross annual volume of business of $500,000. Carolina Supplies
and Cement Co., 122 NLRB 88.
In such instances, however, some proof must be made of legal or
statutory jurisdiction, that is, that the employer involved is engaged
in commerce within the meaning of Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended, in addition to a showing that
the relevant gross volume test has been met. Catalina Island Sight-
seeing Lines, 24 NLRB 908; Westside Market Owners Association,
et al., 126 NLRB 167.
3. No evidence has been received that the Employer's business is
subject to the Board's legal or statutory jurisdiction. The allegation
in the petition herein that "the general nature of the [Employer's]
business [is] retail sale of interstate liquors, foods, and tobaccos,"
which is the only allegation which may be said to refer to the Board's
statutory jurisdiction, fails to show sufficient facts to support a con-
clusion that the Board has legal jurisdiction over the Employer.
Accordingly, the parties are advised that, pursuant to Section 102.13
of the Board's Rules and Regulations, Series 8:
1. The Board would not assert jurisdiction over the Employer
herein on the facts submitted because they fail to show the extent of
direct or indirect outflow or inflow of goods. It is not enough to show
that the Employer's gross annual volume of business satisfies the
Board's standards for asserting jurisdiction over retail establishments.
2. In rendering this opinion, the Board assumes that the Employer
is a party to the State court proceeding mentioned in paragraph 2,
above. Section 102.98 (a) requires that a "petition for an advisory
opinion, when filed by a party to a proceeding before an agency or
court of a State or Territory, shall allege . . . (1) the name of the
petitioner; (2) the names of all other parties to the proceeding."
Failure to show that the petitioner is a party to a State court proceed-
ing will defeat a petition for an advisory opinion.
3. This opinion is limited to the facts presented to the Board.
MEMBERS JENKINS AND FANNING took no part in the consideration
of the above Advisory Opinion.