Lighthouse Restaurant

L.IGHTHOUSE RESTAURANT 945 Tavern Owners, Inc., d/b/a The Lighthouse Restau- rant and Bartenders, Motel, Hotel and Restau- rant Workers Union Local No. 222, AFL-CIO. Case AO-225 August 27, 1980 ADVISORY OPINION A petition was filed on July 22, 1980, by Tavern Owners, Inc., d/b/a The Lighthouse Restaurant, herein called the Employer, pursuant to Sections 102.98 and 102.99 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, seeking an advisory opinion as to whether the Board would decline to assert jurisdiction over a dispute between the Employer and Bartenders, Motel, Hotel and Restaurant Workers Union Local No. 222, AFL-CIO, herein called the Union. At- tached to the petition are copies of (1) the July 18, 1980, order of John M. Meagher, Judge of the Court of Common Pleas, Montgomery County, Ohio, herein called the State Court, in Case 80- 1696; and (2) Judge Meagher's July 18, 1980, letter to the Board requesting expeditious resolution of the jurisdictional issue. Thereafter, on July 31, 1980, the Union filed a response to the petition requesting that the Board hold a hearing to determine whether or not the Employer satisfies the Board's jurisdictional re- quirements. As the Board's advisory opinion proce- dures do not provide for or contemplate eviden- tiary hearings, the Union's request therefor is hereby denied. ' In pertinent part, the petition, Judge Meagher's order and letter, and the Union's response allege as follows: 1. There is presently pending before Judge Meagher in the State Court a complaint (Case 80- 1696) filed by the Employer alleging an action, under the common law of the State of Ohio, against the Union and those acting in concert with the Union for unlawful recognitional picketing. Noting that the Employer was to attempt to obtain an advisory opinion from the Board as to whether it would take jurisdiction over the dispute between the Employer and the Union, Judge Meagher, on July 18, 1980, entered his "Order Extending Tem- porary Restraining Order." On the same date, he sent a letter to the Board advising that he had I See Sec' 102.98- 102 104 of the Board', Rules and Regulations and Secs. 10139 101 41 of the Board's Statemenls (of Procedure; see also Sutei Kanemoro. General Contractor. 164 NLRH 725 (1967), and 164 NL RB 727 (1967). and ases ciled in ns 2 therein 251 NLRB No. 130 issued such an order and requesting that the Board address the jurisdictional issue involved in the dis- pute as expeditiously as possible. 2. The Employer operates a tavern and cafeteria at 2651 Blanchard Avenue, Moraine, Ohio, and makes all its sales to the general public. Its gross annual sales for the calendar year 1978 were ap- proximately $178,000, for 1979 were approximately $144,000, and for the first 6 months of 1980 did not exceed $72,000. Since it began operating in 1957, the Employer never has had a gross annual volume of business exceeding $250,000. All its purchases of such goods for resale or use in operating its busi- ness are made within the State of Ohio. The extent to which such goods originate outside the State of Ohio is unknown. 3. In its response, the Union has not admitted or denied the aforesaid commerce data, but requested a hearing which has been denied. In these circum- stances, we rely upon the jurisdictional facts al- leged herein by the Employer. 4. No representation or unfair labor practice pro- ceeding involving the same labor dispute is pending before the Board. On the basis of the above, the Board is of the opinion that: 1. The Employer is a retail enterprise engaged in the operation of a tavern and restaurant in Mo- raine, Ohio.2 2. The Board's current standard for asserting ju- risdiction over retail enterprises within its legal or statutory jurisdiction is an annual gross volume of business of at least $500,000. Carolina Supplies and Cement Co., 122 NLRB 88, 89 (1958). There is no proof that the Employer's business is subject to the Board's statutory jurisdiction as there is no evi- dence of any interstate inflow or outflow.3 Fur- ther, assuming, arguendo, the Board's statutory ju- risdiction, the Employer's annual gross volume of business of less than $200,000 does not meet the Board's monetary standard for the assertion of ju- risdiction over retail enterprises. Accordingly, the parties are advised, under Sec- tion 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, upon the allegations presented herein, the Board would not assert juris- diction over the Employer's operations. Arena L.ounge. Inc.. 145 NLRB 315 (193). ' See Jarm,'s D. Jackr onr db ha Jackonis Parr Scric. 126 NLRB 875 (1960) lIGHTHOUSE RESTARANT 945