Jarvis Cafeteria Of Portsmouth, New Hampshire, Inc.

National Labor Relations Board - Board Decisions

Dec 26, 1972

200 N.L.R.B. 1141 (N.L.R.B. 1972)

JARVIS CAFETERIA OF PORTSMOUTH 1141
Jarvis Cafeteria of Portsmouth , New Hampshire, Inc
and Piscataque Restaurant Workers Committee
(Ind) Cases 1-CA-8166 and 1-RC-12001
December 26, 1972
DECLARATORY ORDER
By CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Pursuant to Sections 102 104 and 102 106 of the
Board's Rules and Regulations, Series 8, as amended,
the General Counsel has filed a petition for a
Declaratory Order to determine whether the Board
would assert jurisdiction over Jarvis Cafeteria of
Portsmouth, New Hampshire, Inc, herein called
Cafeteria Thereafter, the General Counsel filed a
brief in support of his petition contending that the
Board should assert jurisdiction, while Cafeteria filed
an answer to the petition and a brief in opposition to
the assertion of jurisdiction
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
In pertinent part, the petition, the General Coun-
sel's supporting brief, and Cafeteria's answer and
brief in opposition allege as follows
1 There are presently pending before the Board
an unfair labor practice case, 1-CA-8166, and a
representation proceeding, 1-RC-12001, both in-
volving Cafeteria and Piscataqua Restaurant Work-
ers Committee (Ind), herein called the Union
2 Cafeteria, a Maine corporation, is engaged in
the operation of a public restaurant and a connecting
pub or tavern at Portsmouth, New Hampshire, where
food and drink are served It employs approximately
25 employees and occupies nearly 5,600 square feet
of space All stock in Cafeteria is owned by two
brothers, Andrew and Peter Jarvis, and by Harry and
Simeon Jarvis, the sons of Peter During the fiscal
year ending July 31, 1971, Cafeteria's gross revenue
was $263,794 40, while its projected gross revenue for
the fiscal year ending July 31, 1972, was approxi-
mately $300,000
3 Jarvis Travel Bureau, herein called Travel, is a
partnership of Andrew and Peter Jarvis Travel is a
commission agency engaged solely in providing the
Greyhound Bus Corporation, herein called Grey-
hound, the service of selling passenger tickets and
handling freight It occupies only 21 of the 5,600
square feet of Cafeteria's premises and has no
employees, the tickets being sold by Cafeteria's
cashier There is no office allocated for passengers or
for Greyhound freight which is a negligible item
Greyhound buses park in front of Cafeteria's
premises for a limited 5-minute period and only one
bus at a time is permitted to park During calendar
year ending December 31, 1971, Travel's gross
business was $190,984 from which it received $19,098
in commissions from Greyhound
4 Peter Jarvis & Sons, herein called Jarvis, is a
partnership of Simeon, Harry, and Peter Jarvis It
operates a real estate holding company owning real
estate including Cafeteria's premises During the
calendar year ending December 31, 1971, its gross
rental income was $21,623 of which $9,080 was paid
by Cafeteria
5 There appears to be no other proceeding
involving the same subject matter pending before
any agency or court of any State or territory of the
United States
6 Although served with a copy of the petition
herein, no response, as provided in the Board's Rules
and Regulations, has been received from the Union
On the basis of the above, the Board is of the
opinion that
1 Cafeteria is a retail enterprise engaged in the
operation of a restaurant and tavern or pub at
Portsmouth, New Hampshire Its annual gross
revenue of less than $500,000 does not meet the
Board's standard for the assertion of jurisdiction
over retail enterprises 1
2 Travel is a commission agency engaged in
selling tickets and handling freight for Greyhound at
Cafeteria's premises in Portsmouth, New Hampshire,
and under the Greyhound Terminal precedent,2 is an
essential link in interstate commerce The Board's
current standard for the assertion of jurisdiction over
essential links in commerce is $50,000 gross annual
revenues from such operations or $50,000 services
annually performed for enterprises over which the
Board would assert jurisdiction 3 Travel's annual
gross volume of business of $19,098 does not meet
this standard 4
3 Jarvis is a real estate enterprise operating in
Portsmouth, New Hampshire, a holding company
which owns real estate, including the premises
occupied by Cafeteria Its gross annual revenue of
$21,623 does not meet the Board's standard for
asserting jurisdiction over real estate enterprises 5
4 The General Counsel argues, however, that in
i Carolina Supplies and Cement Co 122 NLRB 88 received only $19 098 annual gross income for its services performed for
2 William S Shurett d/b/a Greyhound Terminal 137 NLRB 87 Greyhound The amount paid for such services is normally determinative of
3 H P 0 Service Inc 122 NLRB 394 the value of such services
4 We reject the General Counsels contention that Travel must have 5 See Mistletoe Operating Company 122 NLRB 1534
rendered score than $50 000 in services to Greyhound inasmuch as Travel
200 NLRB No 143
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the family ownership and common control
and management of Cafeteria, Travel, and Jarvis,
and in view of their integrated operations, they are a
single enterprise for jurisdictional purposes and their
total commerce operations should be considered in
determining whether or not to assert jurisdiction over
Cafeteria Although, in effect, conceding that the
retail and real estate jurisdictional standards are not
met, the General Counsel contends that the essential
link-in-commerce test has been met since, under the
precedent of Greyhound Terminal, supra, Cafeteria's
operations must be considered with those of Travel
5 Cafeteria does not contest, and for purposes of
this proceeding we assume, that Cafeteria, Travel,
and Jarvis, are a single enterprise for jurisdictional
purposes It argues, however, that the situation
before the Board in Greyhound Terminal, supra, is
distinguishable and not applicable herein because it
is operating a restaurant and not a terminal We
agree In Greyhound Terminal, supra, the employer
operated a terminal, an integral part to which was a
restaurant Since the restaurant operations were
merely incidental to the employer's terminal facili-
ties, the Board considered the restaurant's commerce
data in determining to assert jurisdiction over the
terminal as an essential link in commerce Here, on
the other hand, the facts hereinbefore recited clearly
show that Cafeteria, Travel, and Jarvis are not
basically operating a terminal, but rather a restaurant
with ticket facilities which are a minor, incidental,
and insubstantial aspect of the total operations In
these circumstances, we believe that the appropriate
standard to be applied is that pertaining to retail
enterprises and not that pertaining to an essential
link in commerce Since the total combined opera-
tions of Cafeteria, Travel, and Jarvis as a single
enterprise do not meet the $500,000 test for retail
enterprises, we would not assert jurisdiction over
Cafeteria
Accordingly, the Board has determined and the
parties are advised, pursuant to Section 102 110 of
the Board's Rules and Regulations and to Section
101 43 of the Board's Statement of Procedure, that
On the facts submitted herein, the Board would not
assert jurisdiction over the operations of Cafeteria