Terrizzi Beverage Co.

National Labor Relations Board - Board Decisions

Jun 5, 1962

137 N.L.R.B. 495 (N.L.R.B. 1962)

TERRIZZI BEVERAGE COMPANY 495
Terrizzi Beverage Company and Local Union No. 830, Brewery
and Beer Distributor Drivers, Helpers and Platform Men,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. Case
No. A0-36. June 5,196,0
ADVISORY OPINION
This is a petition filed on April 5, 1962, by Local Union No. 830,
Brewery and Beer Distributor Drivers, Helpers and Platform Alen,
affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein called the Peti-
tioner, for an advisory opinion in conformity with Section 102.98 and
102.99 of the Board's Rules and Regulations, Series 8, as amended.
Thereafter, on April 10, 1962, Terrizzi Beverage Company, herein
called the Employer or primary Employer, filed an Answer to Peti-
tion for Advisory Opinion.
A. In pertinent part, the petition alleges as follows :
1. There is pending a complaint in equity filed by the Employer
against the Petitioner and some individuals in the Court of Common
Pleas, No. 6, of Philadelphia County, Pennsylvania, and docketed in
that court as December Term of 1961, No. 2333. That complaint al-
leged that the Petitioner and its members coerced the Employer by
preventing and delaying the loading and unloading of beer onto its
trucks at the platforms of C. Schmidt & Sons, Inc., herein called
Schmidt, thereby interfering with the oral contract between the Em-
ployer and Schmidt. In this court litigation, the Employer sought
to have the Petitioner enjoined from :
(1) Causing any platform man or member of said Local 830 or
any member of said union or its representatives from doing any
act or thing tending toward or having the effect of interfering,
harassing or delaying the plaintiff's (Terrizzi) rights to be un-
loaded and loaded with beer at the platforms of C. Schmidt &
Sons, Inc.
(2) Continuing to coerce, harass, humiliate and intimidate and
interfere with the plaintiff's business by delaying said loading
and unloading operations.
2. Thereafter, although it made no specific jurisdictional findings,
the Court of Common Pleas, No. 6 of Philadelphia County issued a
preliminary injunction against the Petitioner. An appeal from said
preliminary injunction is pending in the Supreme Court of Pennsyl-
vania, having been docketed there as January Term 1962, No. 285.
3. The Employer is engaged in the retail and wholesale distribution
of malt beverages and soft drinks in West Chester, Chester County,
137 NLRB No. 59.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pennsylvania, where its principal place of business is located. Al-
though during the year 1960, its total sales were less than $500,000
and its direct and indirect purchases of goods from outside Pennsyl-
vania were less than $50,000, the Board, in October 1961, asserted
jurisdiction over the Employer and 18 other retail and wholesale bev-
erage distributors, as members of the multiemployer Chester County
Beer Distributors Association, herein called Chester Association which
had bargained with the Petitioner on an associationwide basis.'
4. Schmidt is a brewery engaged in the manufacture of beer at
Philadelphia, Pennsylvania. Annually, Schmidt ships outside of
Pennsylvania, beer and malt products valued in excess of $50,000.
Previously on November 9, 1959, the Board asserted jurisdiction over
Schmidt's operations in connection with certain secondary activities
of the Petitioner.2
5. The Petitioner believes that the allegations of the complaint filed
in the court of common pleas fall within the purview of Section
8 (b) (4) of the Act and that the Board would assert jurisdiction herein
because the Petitioner's activities involve Schmidt, a secondary em-
ployer, over whose operations the Board would assert jurisdiction.
6. The Petitioner has no knowledge of any representation or un-
fair labor practice proceedings involving the Petitioner or the Em-
ployer now pending before the Board.
B. In pertinent part, the Employer's answer alleges :
1. Schmidt and Chester Association are not parties to the proceed-
ing herein and the Employer is not a member of Chester Association
with respect to the court litigation instituted by the Employer against
the Petitioner.
2. The Employer denies that it purchased any goods outside of
Pennsylvania or that its sales and purchases of 1960 reflect its sales
and purchases in 1961 or 1962. Further, it avers that no evidence
was presented to the court of common pleas as to its commerce data
during those 2 years.
3. The Employer asserts that, as the Petitioner has asserted no
requests of any kind upon it concerning labor matters, there is no
labor dispute between them and that, therefore, the court litigation
for damages and injunctions against the Petitioner only concerned
a personal, nonlabor question. It also avers that the litigation arose
because the Petitioner and its members who were platform employees
of Schmidt willfully and maliciously delayed the loading and unload-
ing of the Employer's trucks at Schmidt's platform, thereby tortiously
interfering with the oral contract between the Employer and Schmidt
' See Chester County Beer Distributors Association, 133 NLRB 771 The election
directed therein was conducted on November 1, 19G1, and resulted in a determination
that the Petitioner did not represent the employees of the members of the Chester
Association.
2 Delaware Valley Beer Distributors Association , 125 NLRB 12, 20, 21, enfd . 281 F. 2d
319 (C.A. 3).
TERRIZZI BEVERAGE COMPANY 497
and causing the Employer substantial time loss in the use of its equip-
ment and employees. Accordingly, contrary to the Petitioner, the
Employer contends that the allegations of the complaint in the court
litigation do not fall within the scope of Section 8(b) (4) of the Act
and that the Board should determine that it would not assert juris-
diction herein.
On the basis of the above, the Board is of the opinion that:
1. The Employer is engaged in the retail and wholesale distribu-
tion of beverages in West Chester, Pennsylvania. The Board's stand-
ard for exercising jurisdiction over retail enterprises which satisfy
its legal or statutory jurisdiction is a minimum gross volume of
business of $500,000 per annum (Carolina Supplies and Cement Co.,
122 NLRB 88) ; while the Board's standard for asserting jurisdiction
over wholesale or nonretail enterprises requires an annual minimum
of $50,000 inflow or outflow, direct or indirect, as those terms are
described in Siemons Mailing Service, 122 NLRB 81. On the facts
submitted herein, the Employer's operations by themselves do not
meet the Board's standard for asserting jurisdiction either as a re-
tail or nonretail enterprise.
2. Schmidt, the secondary employer, is a brewery engaged in the
manufacture of beer in Philadelphia, Pennsylvania. Although the
Employer generally denied the allegations in the paragraph which set
forth, inter alia, the commerce data with respect to Schmidt, it did
not specifically deny that Schmidt annually ships products valued
in excess of $50,000 outside of Pennsylvania. Such out-of-State
shipments not only bring Schmidt within the Board's legal or statu-
tory jurisdiction but also constitute sufficient outflow under the Board's
decision in Siemens Mailing Service, supra, to warrant its assertion
of jurisdiction over Schmidt under the nonretail standard.'
3. In cases involving secondary activities by a union which may be
violative of Section 8(b) (4) of the Act where, as here, the primary
Employer's operations do not meet the Board's jurisdictional standard,
the Board will take into consideration for jurisdictional purposes not
only the operations of the primary Employer but also the entire opera-
tions of the secondary employer at the locations affected by the alleged
conduct involved 4 The dispute between the Petitioner and the pri-
mary Employer exists in Philadelphia and the Petitioner's activity
with respect to the secondary employer Schmidt also occurred in
Philadelphia, Pennsylvania. Philadelphia is thus the location af-
fected by the Petitioner's secondary conduct. As indicated above,
Schmidt is a Philadelphia enterprise which meets the Board's juris-
dictional standard and over which the Board would assert jurisdiction.
3 As indicated above, the Board has previously asserted jurisdiction over Schmidt with
respect to the Petitioner's secondary activities toward Schmidt. See footnote 2, supra.
' Jemcon Broadcasting Company, 135 NLRB 362, and cases cited in footnote 2 therein.
649856-63-vol . 13 7-3 3
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances, and in accord with established Board prece-
dent, the Board would assert jurisdiction over Terrizzi, the primary
Employer, and Schmidt, the secondary employer, affected by the
Petitioner's secondary activities, whether or not such activities are in
fact violative of Section 8(b) (4) of the Act.' In view of the fore-
going, the Board finds no merit in the primary Employer's conten-
tion that the Petitioner's secondary activity may not be violative of
Section 8 (b) (4) of the Act, nor in the further contention that the
dispute is nonlabor in character. Advisory opinions are rendered
only on the jurisdictional issue presented by the facts submitted and
the Board will not presume to render an opinion on whether the sub-
ject matter of the dispute is governed by the Act. See Board's State-
ments of Procedures, Section 101.40. Finally, the fact that neither
Schmidt nor Chester Association are parties to the court litigation or
to the proceeding herein would not prevent the Board from asserting
jurisdiction herein.6
Accordingly, the parties are therefore advised, under Section
102.103 of the Board's Rules and Regulations, Series 8 , as amended,
that, on the facts here present, the commerce operations of Terrizzi,
the primary Employer, and those of Schmidt, the secondary employer,
at Philadelphia, Pennsylvania, the location affected by the Petitioner's
secondary conduct are such that the Board would assert jurisdiction
with respect to labor disputes cognizable under Section 8 or 10 of the
Act.
B See Jemcon Broadcasting Company, supra; and Madison Building & Construction
Trades Council , et at. ( Wallace Hildebrandt, et al., d/b/a H & K Lathing Co., at al.),
134 NLRB 517.
9 See Jemcon Broadcasting Co, supra , where none of the secondary employers affected
by the union's activities therein were parties to the court litigation or to the Board's
advisory opinion proceeding
Budd Electronics , Inc., and Lewyt Corporation , Co-Employers
and David J. Rivkin . Case No. 2-CA-7496. June 6, 1962
DECISION AND ORDER
On May 24, 1961, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent Budd Electronics, Inc. (referred to herein as Budd), had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action. The Trial Examiner also recommended that the com-
plaint be dismissed as to Respondent Lewyt Corporation. Thereafter,
the Respondents and Local 1614, International Brotherhood of Elec-
trical Workers, AFL-CIO (referred to herein as the Union), filed
1,37 NTJRB No. 53.