Tucker's Steak House

National Labor Relations Board - Board Decisions

Jan 8, 1964

145 N.L.R.B. 882 (N.L.R.B. 1964)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garwood L . Tucker d/b/a Tucker 's Steak House and Hotel and
Restaurant Union Local 443 and Bartenders Union 504. Case
No. A0-68. January 8, 196.
ADVISORY OPINION
This is a petition filed on November 27, 1963, by Hotel and Res-
taurant Union Local 443 and Bartenders Union 504, herein called the
Petitioners, for an Advisory Opinion in conformity with Sections
102.98 and 102.99 of the National Labor Relations Board's Rules and
Regulations, Series 8, as amended.
In pertinent part, the petition alleges as follows:
1. The Petitioners are labor unions within the meaning of the Na-
tional Labor Relations Act, herein called the Act.
2. There is pending in the U.S. District Court for the Southern
District of Indiana, Terre Haute Division, a suit (Civil No. TH
63-C 88) instituted under Section 301 of the Act by the Petitioners
against Garwood L. Tucker d/b/a Tucker's Steak House, herein
called the Employer, for breach of a collective-bargaining agreement.
3. The Employer operates a restaurant, catering to the general pub-
lic and to parties who are in interstate commerce. The Employer is
also a member of the Indiana Restaurant Association, herein called
Association, which conducts negotiations on an associationwide basis.
4. The Petitioners allege that the Employer's purchases and gross
sales affect interstate commerce and that, individually and as a mem-
ber of the Association, the Employer's operations affect commerce.
The Petitioners have not set forth specific commerce data allegedly
because such facts are not available to them but are peculiarly within
the control and knowledge of the Employer.
5. There have been no findings by any agency or court respecting
the commerce data.
6. There is no representation or unfair labor practice proceeding
involving the same labor dispute pending before the Board.
7. Although served with a copy of the petition for an Advisory
Opinion, no response as provided by the Board's Rules and Regula-
tions has been filed by the Employer.
On the basis of the above, the Board is of the opinion that :
1. The Employer, a member of the Association, apparently i5 a
retail enterprise operating a restaurant, catering to the general pub-
lic and parties who are engaged in commerce.
2. The current Board standard for the assertion of jurisdiction
over retail enterprises within its statutory or legal jurisdiction is a
gross volume of business of at least $500,000 per annum. Carolina
Supplies and Cement Co., 122 NLRB 88, 89; Colonial Catering Com-
pany,137 NLRB 1607, 1608.
145 NLRB No. 90.
GORDON MILLS, INC. 883
3. Except for general allegations that the Employer 's purchases
-and gross sales and operations , individually or as a member of the
Association , affect commerce , which we assume arguendo, the Peti-
tioners have not submitted any specific commerce data to establish
that the Employer 's or the Association 's annual gross volume of busi-
ness meets the test for invoking the Board 's discretionary standard
for the assertion of jurisdiction over retail enterprises . In these cir-
cumstances , the Board is unable to make a meaningful jurisdictional
determination herein.
Accordingly , the parties are advised under Section 102.103 of the
Board's Rules and Regulations , Series 8 , as amended , that on the
allegations here present, the Board is unable to conclude whether or
not it would assert jurisdiction herein, with respect to labor disputes
cognizable under Sections 8, 9, and 10 of the Act.
Gordon Mills , Inc. and Textile Workers Union of America, C.I.O.-
A.F.L., C.L.C. Case No. 10-CA-5294. January 9,1964
DECISION AND ORDER
On August 26, 1963, Trial Examiner James F. Foley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, Respondent filed exceptions to the Inter-
mediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.'
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Gordon Mills, Inc., its officers , agents, successors , and assigns , shall:
145 NLRB No. 92.