Major Service Co.

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fishes, and we find that Birtwell is responsible for directing the em- ployees under him in matters requiring the use of independent judgment, not only when he is substituting for Scheier, an admitted supervisor, but also when carrying out his normal, day-to-day duties.' Accordingly, we find that he is a supervisor within the meaning of Section 2 (11) of the Act. We shall, therefore, exclude him from the certified unit. [The Board clarified the certification by specifically excluding, in the description of the appropriate unit, the classification of assistant editor.] 1 The Salt Lake Tribune Publishing Company, et at., 92 NLRB 1411 , 1416-1417, 1419-1420 ; see also, Chandler's Shoe .Store, 123 NLRB 872, 873-874. Major Service Co., a Washington corporation, Plaintiff and Freight Checkers, Traffic Clerks and Clerical Employees Union, Local 342, et al., Defendants. Case No. A0-15. Novem- ber 29, 1960 ADVISORY OPINION This is a petition filed by Freight Checkers, Traffic Clerks and Clerical Employees Union, Local 342 (herein mentioned as Local 342), "for an advisory opinion as to whether certain picketing at the premises of a gas station operated by Major Service Co. is subject to the Board's jurisdiction." I. In material part, said petition alleges the following : 1. The "other party to the proceeding" is Major, a Washington corporation, of 1318, B Madison Street, Seattle, Washington. Major has brought suit against Local 342 and two individuals in the King County Superior Court of the State of Washington for damages and injunctive relief based upon picketing by said Union at the' premises of a gas station located at 107th and Aurora Avenues in Seattle, "al- legedly operated" by Major and known as the Gov-Mart North Gas Station. Said suit has been docketed as Case No. 553127. .2. On or about May 25, 1960, Local 342 commenced picketing at the premises of Mission Supply Co. (a/k/a Gov-Mart), herein called Mis- sion, in Seattle "in furtherance of an economic dispute with Mission." Later, Local 342 also picketed the premises of Gov-Mart North Gas Station. Thereupon Major instituted the State court action described above, "claiming that. . said gas station is completely separate and apart from the enterprise conducted by Mission Supply Co. (a/k/a Gov-Mart) with which [the] union has a dispute." 1x29 NLRB No. 96. MAJOR SERVICE CO. 795- 3. In its answer in said State court litigation Local 432 has asserted, inter alia, (a) that Gov-Mart North Gas Station is "a part of the enterprise" conducted by Mission, or that said station is owned and operated "by individuals or companies" which, in turn, own and operate Mission, and (b) that the NLRB is vested with exclusive juris- diction to pass on the legality of the picketing involved. 4. Major operates three gasoline stations in the State of Washington which cater only to members of an organization known as Govern- ment Employees Association. One station, known as Gov-Mart North Seattle Station, is located at 107th and Aurora Avenues in Seattle; another is located in Everett; and the third is in Olympia. During the year ending April 1, 1960; the gross receipts of Major were ap- proximately $406,000. During the same period, Major purchased ma- terials and supplies valued at approximately $362,000. However, the stations in Everett and Olympia did not commence operating until "sometime early in 1960" and that in Seattle (described as Gov-Mart North'Service Station) "sometime early in 1959." About one-half of said purchases consisted of gasoline bought from Stebert Petroleum Co., a distributor of gasoline in Seattle. Stebert obtained this gaso- line from Time Oil Co. 5. During the year 1959, Time Oil Co. "purchased and sold to its distributors" 44,000,000 barrels of gasoline, of which 31,600,000 barrels were "obtained from sources" in Washington and 13,000,000 barrels from "sources" outside Washington. 6. The remaining merchandise purchased by Major was obtained from Central Wholesale Service, a Washington corporation owned by the same individuals owning Major. Central obtained some of such merchandise from sources outside of Washington. Central's annual purchases from outside Washington exceed $50,000. 7. Mission operates a retail department store in Seattle, "open to federal, state and municipal government employees and their families, who are members of an organization known 'as Government Employees Associated." Mission's annual gross volume of business exceeds $500,000, and its annual direct inflow exceeds $50,000. Jr. Major has submitted a letter alleging that: 1. The strike "which was the subject of Petition For Advisory Opinion has been settled. The employees have returned to work. As part of the settlement agreement, the suit referred to in the Petition is to be dismissed. ' By reason of the foregoing, we are not making any response to the petition." 2. However, counsel for the- petitioner has orally advised that the petition referred to in the preceding paragraph has not been dismissed. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. On the basis of the above, the Board is of the opinion that : 1. Major is engaged in the business of operating a retail gasoline station. 2. Mission is engaged in the business of conducting a retail depart- ment store. 3. The Board's current standard for exercising jurisdiction over a retail enterprise which satisfies its statutory jurisdiction is a gross volume of at least $500,000 annually. Carolina Supplies and Cement Co., 122 NLRB 88, 89; Westside Market Owners Assn., 126 NLRB 167. Of course, some proof must be made of legal jurisdiction, i.e., that the employer involved is engaged in commerce or that his opera- tions affect commerce, in addition to a showing that the applicable gross volume test has been met. Catalina Island Sightseeing Lines, 124 NLRB 813; Westside Market Owners Assn., supra. 4. In ascertaining legal jurisdiction, the Board looks to inflow or outflow as those terms are defined in Siemons Mailing Service, 122 NLRB 81. 5. In determining the identity of an employer for jurisdictional purposes the Board often finds that two or more separate enterprises or entities may constitute a single employer where "the integration of ownership, management, and operations, and the centralized control of labor relations policies" exist. Crenshaw's, Inc., et al., 115 NLRB 1374, 1376; Southeastern Concrete Products Company, et at., 127 NLRB 1024; Alton Myers Brothers, Inc., 127 NLRB 1027; Central Dairy Products Co., 114 NLRB 1189,1190. See Orkin Exterminating Co., Inc., 115 NLRB 622, 629. In such instances "the totality of an employer's operations . . . should determine whether or not the Board will assert jurisdiction over a particular employer." Siemons Mailing Service, supra, at 84; Emil Denemark, Inc., 120 NLRB 1059. 6. On the record before it, the Board is unable to determine that Major and Mission are integrated sufficiently so as to be treated as a single employer for jurisdictional purposes. Accordingly, only the ,commerce data attributable to Major is being considered. 7. When an employer has been in business for less than a year, the Board will project or estimate his commerce data for an appropriate annual period. Mercury Mining and Construction Corporation, 96 NLRB 1389, 1390-1391. In such instances, however, the available figures which are projected must create a "'reasonable expectation' that the yearly minima would be met." Fairmount Construction Company, 95 NLRB 969, 971. See New London Mills, Incorporated, 91 NLRB 1003, 1004. 8. On the record before it, the Board is unable to project or estimate Major's gross volume of business for an appropriate annual period at its Everett and Olympia gas stations since it is conjectural when TRENTON MANUFACTURING AND DISTRIBUTING CO. 797 operations commenced at these stations . Cf. Cenit Noll Sleep Prod- ucts, Inc., 115 NLRB 318. Accordingly, the parties are advised , pursuant to Section 102.103 of the Board's Rules and Regulations that : 1. The Board would not assert jurisdiction over Major on the facts presented herein because they fail to show an annual gross volume of $500,000 or more. On the facts before it the Board is unable to conclude that Major, Central, and Mission constitute a single em- ployer for jurisdictional purposes . Hence the only basis for asserting jurisdiction is the commerce data relating to Major's operations, and these fall below present pertinent Board standards . We are of the opinion that Indiana Bottled Ga s Company, 128 NLRB 1441, is distinguishable, and that Man Products , Inc., 128 NLRB 546, is inapplicable. Trenton Manufacturing and Distributing Company and Am- brosene Peterson, Charging Party and Local Union No. 299, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 7-CA-P3554. November 29, 1960 DECISION AND ORDER On July 25,1960, Trial Examiner John H. Dorsey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent, the General Counsel, and the Intervenor filed exceptions to the Intermedi- ate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations t of the Trial Examiner. 1 The Trial Examiner found that Respondent illegally assisted the Intervenor by solicit- ing its employees to join the Intervenor and by threatening them with reprisals if they failed to select that Union as their bargaining agent. Because the Respondent had not 129 NLRB No. 100.