The Ship's Wheel, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1975

221 N.L.R.B. 1129 (N.L.R.B. 1975)

THE SHIP'S WHEEL
The Ship's Wheel, Inc. and Hotel & Restaurant
Employees Union, Local 217, AFL-CIO. Case
AO-176
December 12, 1975
ADVISORY OPINION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING, JENKINS, AND PENELLO
On October 20, 1975, Hotel & Restaurant Employ-
ees Union, Local 217, AFL-CIO, acting on behalf of
itself and Marian Platz, et al., hereafter collectively
called Petitioner, filed with the Board a petition, with
exhibits attached, for an Advisory Opinion pursuant
to Sections 102.98 and 102.99 of the Board Rules and
Regulations, Series 8, as amended, for a determina-
tion whether the Board would assert jurisdiction over
the operations of The Ship's Wheel, Inc., hereafter
called the Employer. On November 10, 1975, the
Employer submitted a brief, and an attachment
thereto, opposing the petition. On November 10,
1975, the Regional Director for Region 1 of the
National Labor Relations Board filed a motion to
intervene in which he set forth commerce informa-
tion developed in the course of his investigation of
the unfair labor practice charge in Case 1-CA-
10841.1
In pertinent part, the petition, with exhibits, the
Employer's brief and attachment, and the interven-
tion allege as follows:
1. There is pending before the Connecticut State
Board of Labor Relations, hereafter called State
Board, an unfair labor practice proceeding, docketed
as Case U-3166, wherein Marian Platz, et al., have
charged the Employer with engaging in certain unfair
labor practices. The charge was filed on June 30,
1975, and a complaint issued on August 11, 1975.
On July 1, 1975, a charge was filed with the
National Labor Relations Board by Petitioner
Union, Case 1-CA-10841, against the Employer
alleging that the Employer had engaged in certain
unfair labor practices. Pursuant to this charge, the
Regional Director conducted an investigation of the
operations of the Employer which disclosed that as
of July 21, 1975, the Employer's annual volume of
business did not meet the Board's standards of
$500,000 per year for retail establishments.2 Accord-
ingly, a dismissal letter was issued on July 21, 1975.
1 The Regional Director 's motion to intervene is hereby granted
2 This determination was based on an examination of tax returns
submitted by the Employer for the calendar years 1972, 1973, and 1974,
which showed gross receipts or gross sales of $252,212, $418,029, and
$453,468, respectively.
On June 25 , 1975, the Employer submitted a statement that its volume of
business was less than $500,000 ; and a "Commerce Questionnaire"
submitted by the Employer and received by the Board's Regional Director
221 NLRB No. 183
1129
2. There is also pending before the State Board a
representation petition, Case E-3212, filed on August
6, 1975.
3. The Employer operates a restaurant located in
Milford, Connecticut.
4. 'Based on a certified public accountant's report
dated September 16; 1975, examination of the
Employer's books and records for the 5-month
period from January 1 through May 31, 1975, and an
examination of the Employer' s sales records for the
period from June 1, 1975, to September 14, 1975,
showed that the Employer' s gross sales for the period
from January 1 through September 14, 1975,
amounted to $504,763.
5. The above commerce data are not denied by
the Petitioner, and the State Board has made no
findings with respect thereto.
6. There is no representation or unfair labor
practice proceeding involving the same labor dispute
pending before this Board.
7. 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
State Board.
On the basis of the foregoing, the Board is of the
opinion that:
1. The Employer operates a restaurant located in
Milford, Connecticut.
2. As related above, an unfair labor practice
charge was filed with the State Board on June 30,
1975, and a complaint issued on August 11, 1975. On
July 1, 1975, an unfair labor practice charge was filed
with the National Labor Relations Board which was
dismissed because the Employer's annual volume of
business did not meet the Board's standard estab-
lished for restaurants.3 Although the Employer's
gross sales were insufficient to meet the Board's
discretionary jurisdictional standard for retail enter-
prises during the calendar years 1972, 1973, and
1974, it did, however, have gross sales of $504,763 for
the period from January 1 through September 14,
1975.4 As the Employer's operations would currently
meet the $500,000 test for retail enterprises, we would
assert jurisdiction over the Employer herein.
We do not reach or pass on the opposing
contentions advanced by the parties herein with
respect to the State Board's jurisdiction over the
Employer when the unfair labor practice charge was
filed, as an Advisory Opinion proceeding is primarily
on July 17, 1975, contained the information that the Employer's annual
volume of business was $400,000.
3 In Carolina Supplies and Cement Co., 122 NLRB 88 (1958), the Board
established the jurisdictional standard for retail enterprises as those which
fell within its statutory jurisdiction and which had a gross annual volume of
business of at least $500,000.
4 This is possibly due to the fact that in January 1975 the Employer
expanded the seating capacity in the dining area from 88 to 185.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of determining whether an employ-
er's operations in commerce meet the Board's
discretionary standards for asserting jurisdiction.5
Questions involving the merits of the alleged unfair
labor practices or whether the subject matter of the
dispute is governed by our Act are substantive
matters not resolvable in this proceeding.6
5 Anziano Building Company, Inc, 221 NLRB 494 (1975); Yale-New
Haven Hospital, 214 NLRB No. 34 (1974), and cases cited in fn. 4 thereof
Accordingly, the parties are advised, under Section
102.103 of the Board Rules and Regulations, Series 8,
as amended, that, on the allegations herein made, the
Board would assert jurisdiction over the operations
of the Employer with respect to labor disputes
cognizable under Sections 8, 9, and 10 of the Act.
6 Anziano Building Company , Inc., supra See also Sec 101 40(e) of the
Board 's Statements of Procedure, Series 8 , as amended