Milk Drivers Local 680

National Labor Relations Board - Board Decisions

Aug 26, 1970

185 N.L.R.B. 142 (N.L.R.B. 1970)

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milk Drivers and Dairy Employees Local 680 and
Cream -O-Land Dairy , A Corporation of New Jer-
sey. Case AO- 123
August 26, 1970
ADVISORY OPINION
This is a petition filed on July 23, 1970, by Milk
Drivers and Dairy Employees, a labor organization
herein called the Petitioner, for an Advisory Opinion
in conformity with Sections 102.98 and 102.99 of
the National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended . On July 27, 1970,
Cream-O-Land Dairy, herein called the Employer,
filed a response to the petition. On July 29, 1970,
the Petitioner filed a reply to the Employer's response.
Thereafter, on August 7, John J. Cuneo, Regional
Director for Region 22, National Labor Relations
Board, Newark, New Jersey, herein called the Region-
al Director, filed a motion to intervene, setting forth
jurisdictional information discovered in the course
of his investigation of the representation proceedings
in Case 22-RC-3174. Subsequently, on August 17,
1970, the Petitioner and the Employer filed responses
to the Regional Director's intervention. On August
20, 1970, the Employer filed a supplemental response.
The Regional Director's motion to intervene is grant-
ed.'
In pertinent part, the petition, the response thereto,
the reply to the response, and the intervention and
responses thereto allege as follows:
1. There is presently pending an injunction action,
Docket No. C 3226-69, in the Superior Court of New
Jersey, Chancery Division, New Brunswick, New
Jersey, herein called the State Court, instituted by the
Employer seeking to enjoin the Petitioner from
picketing the products of the Employer. The State
Court has enjoined and restrained the Petitioner
"until further Order of the Court." On July 23, 1970,
the Petitioner forwarded to the Employer's Counsel a
notice of intent to move for leave to appeal, from the
State Court's Order.
2. The Employer, a New Jersey Corporation, is
engaged in the processing and sale of milk and milk
products in the State of New Jersey.
3. At the present time, July 1970, none of the
Employer's total purchases of milk and dairy
products are made form outside the State of New
Jersey, and all its milk sales are made within the
State of New Jersey. Annually, the Employer has
made approximately $1 million in retail sales and
' The Board has not considered the Petitioner's request for injunctive
relief in the United States District Court against the State Court proceed-
ings mentioned hereinafter since the Board views such a request to
be inappropriate in an Advisory Opinion proceeding
185 NLRB No. 28
home deliveries, approximately $625,000 in sales to
supermarkets and chain stores, and approximately
$1'/2 million in sales to other wholesale accounts. As
indicated above, all these sales are made entirely
within the State of New Jersey. In addition, the
Employer annually purchases approximately
$200,000 worth of bottles, containers, cases, supplies
and trucks directly from outside the State of New
Jersey.
4. In his investigation of Case 22-RC-3174, the
Regional Director found as follows: For calendar
year 1965, the Employer had a gross annual revenue
of $1,610,151.50, none of which came from sales
of milk and milk products made directly out of the
State of New Jersey, or from sales to local customers
who were engaged in interstate commerce. Its purchas-
es of goods, supplies, commodities, or services was
$998,316.26, most of which represented purchases
made directly outside the State of New Jersey or
local purchases of goods, supplies, commodities, or
services originating outside the State of New Jersey.
The Employer conceded that it was engaged in inter-
state commerce and subject to the Board's jurisdiction.
On March 4, 1966, the Regional Director approved
the withdrawal of the petition because of a contract-
bar issue.
5. The Employer argues that the petition should
be dismissed for lack of jurisdiction, relying particular-
ly on the factual findings of the State Court that
the Board, "has on previous occasion' indicated that
the [Employer] corporation did not meet the criteria
established by the National Labor Relations Board
relative to its volume and interstate activity and had
declined to accept jurisdiction of the problems therein
confronted by the corporation." On the other hand,
the Petitioner argues that the Regional Director in
Case 22-RC-3174 had asserted jurisdiction. As the
Regional Director has advised, the Employer had
conceded the Board's jurisdiction in that proceeding.
6. Except to the extent herin set forth, the State
Court has made no findings with respect to the
aforementioned commerce data.
7 There is no representation or unfair labor
practice proceeding involving the same labor dispute
now pending before the Board.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is a retail and nonretail enterprise
engaged in the sale and processing of milk products in
the State of New Jersey. Its home deliveries and sales
are retail in nature, while its sales to chain stores,
supermarkets, and other wholesale accounts are
nonretail in nature. As a combined retail and
nonretail enterprise whose nonretail business is not
' Apparently in 1954, see, Milk Drivers & Dairy Employees Local
680 v Cream-O-Land Dairy, 39 N J Sup 163, 120 A 2nd 640 (App
Div 1956)
MILK DRIVERS LOCAL 680
de minimis, either the retail or nonretail jurisdictional
standards is applicable to the Employer's
operations.'
2. The current Board standards for the assertion
of jurisdiction over retail establishments within its
statutory jurisdiction is an annual gross volume of
business of at least $500,000. Carolina Supplies and
Cement Co., 122 NLRB 88, 89. The Employer's
approximately $200,000 purchases of bottles, contain-
ers, cases and supplies, and trucks, directly from
outside the State of New Jersey, establishes the Board's
statutory jurisdiction, while its annual revenues of
approximately $3.1 million in sales and home deliver-
143
ies exceeds the monetary test for the assertion of
jurisdiction over retail enterprises.'
Accordingly, the parties are advised, under Section
102.113 of the Board's Rules and Regulations, Series
8, as amended, that, on the allegations submitted
herein, the Board would assert jurisdiction over the
Employer's operations with respect to matters cogniza-
ble under Sections 8, 9, and 10 of the Act.
' Appliance Supply Company, 127 NLRB 318, Man Products, Inc,
128 NLRB 546, Indiana Bottled Gas Co, 128 NLRB 1441
' In these circumstances, it is unnecessary to consider the applicability
of the nonretail jurisdictional standard