Townley Sweeping Service

National Labor Relations Board - Board Decisions

Jun 16, 2003

339 N.L.R.B. 301 (N.L.R.B. 2003)

TOWNLEY SWEEPING SERVICE 301
Townley Sweeping Service, Inc. Case 22–AO–00001
June 16, 2003
ORDER DENYING PETITION FOR
ADVISORY OPINION
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
Petitioners, Abdul Saquar and Tony “Jamal” McRiney,
have filed a Petition for Advisory Opinion as to jurisdic-
tion in the above proceeding. For the reasons set forth
below, we deny the petition.
Background
The Petitioners are plaintiffs in a wrongful termination
and defamation action against Townley Sweeping Ser-
vice, Inc., a New Jersey corporation (the Employer) and
Kenneth Battiato (collectively the Defendants) in the
Superior Court of New Jersey. The complaint alleges
that the Employer wrongfully terminated the Petitioners
in January 2001, in retaliation for attempting to unionize
the workplace and for communicating with a union or-
ganizer, and that Petitioner Saquar was wrongfully ac-
cused of stealing trash bags as a pretext for his termina-
tion. In response to the complaint, the Defendants filed
an answer and Motion for Summary Judgment contend-
ing, inter alia, that the Petitioners’ State court action was
preempted by the National Labor Relations Act under the
principles set forth in San Diego Bldg. Trades Council v.
Garmon, 359 U.S. 236 (1959).
On September 18, 2002, the Superior Court issued an
order dismissing the complaint in its entirety without
prejudice. The order further provided that the Petitioners
would have 45 days to file a request for an advisory
opinion with the National Labor Relations Board
(NLRB) concerning the Board’s jurisdiction over the
subject matter of the complaint, and that the Petitioners
would have 30 days from the Board’s final action on any
such request to file an action with the court for any mat-
ters not disposed of by the Board’s opinion.
Pursuant to the court’s order, on November 1, 2002,
the Petitioners filed the instant petition for an advisory
opinion. The petition does not dispute the commerce
data provided by the Defendants in support of their Mo-
tion for Summary Judgment in the state court proceed-
ing.1 However, the petition states that the Petitioners

1 The petition references and attaches the Defendants’ Certification
in Support of Motion for Summary Judgment, filed by Kenneth W.
Battiato, the Employer’s President. The Certification states that the
Employer is in the business of providing cleaning and maintenance
services to supermarkets, shopping centers, and similar establishments
throughout New Jersey, New York, Pennsylvania, and Connecticut;
that, as of January 1, 2001, the Employer had annual revenues in excess
of $1 million; and that during the 12-month period preceding the filing
of the complaint and date the Petitioners were terminated, the Employer
opposed the Motion for Summary Judgment in that pro-
ceeding on the grounds that New Jersey wrongful dis-
charge and common law defamation claims are not pre-
empted by Federal labor law.
On November 27, 2002, the Employer filed a response
requesting that the Board issue an opinion that jurisdic-
tion would lie with the NLRB based on the facts. The
Employer asserts that the opinion would be instructive to
the State court in determining, conclusively, that it does
not have jurisdiction to entertain the complaint.
Ruling on Petition
Having duly considered the matter,2 we deny the peti-
tion for an advisory opinion. Sections 102.98 and 102.99
of the Board’s Rules and Regulations permit a state or
territorial agency or court, but not parties to state pro-
ceedings, to file a petition for an advisory opinion with
the Board on the limited question whether the Board
would decline to assert jurisdiction based either on its
commerce standards or because the employer is not
within the jurisdiction of the Act. Those sections do not
provide for advisory opinions on: one, whether particular
conduct is protected or prohibited by the Act; or two,
whether a State court lacks jurisdiction over a dispute
under the principles of Garmon preemption.3
Under the aforementioned Rules, the individual peti-
tioners cannot petition on their own behalf for an advi-
sory opinion. To the extent the individual petitioners
here are acting at the behest of the Superior Court of
New Jersey, we need not reach the issue as to whether
such a petition is cognizable under our Rules as the peti-
tion must be denied in any event. The jurisdictional
commerce facts set forth in the petition raise an issue
repeatedly addressed in numerous prior Board opinions
and decisions, so no advisory opinion is necessary.4 To
the extent the Superior Court, through the parties, seeks

purchased goods and materials valued in excess of $50,000 directly
and/or indirectly from suppliers located outside of the State of New
Jersey.
2 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 See also Sec. 101.40 of the Board’s Statements of Procedure (The
Board will limit its advisory opinion to the jurisdictional issue confront-
ing it, and will not presume to render an opinion on the merits of the
case or on the question of whether the subject matter of the dispute is
governed by the Labor Management Relations Act).
4 The Board’s standard for asserting jurisdiction over nonretail en-
terprises is an annual outflow or inflow, direct or indirect, across state
lines of at least $50,000. Siemons Mailing Service, 122 NLRB 81
(1959). See also Versatech Industries, Inc., 333 NLRB No. 107 (2001)
(not reported in Board volumes); Sir Thomas Industrial Bldg. Mainte-
nance Co., 323 NLRB 679 (1997). We note that there are various other
avenues or procedures for obtaining a jurisdictional determination or
opinion from the Board’s regional offices. See Sec. 101.41 of the
Board’s Statements of Procedure, and Sec. 11702 of the NLRB Case-
handling Manual (Part One) (Revised November 2002).
339 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302
an opinion on whether their dispute is cognizable under
the Act, and/or whether the court lacks jurisdiction over
the dispute under the principles of Garmon preemption,
we adhere to the position that such issues are not prop-
erly addressed by the Board in an advisory opinion.
Accordingly, the Petition for Advisory Opinion as to
jurisdiction is denied.