Terrizzi Beverage Co.

TERRIZZI BEVERAGE COMPANY 495 Terrizzi Beverage Company and Local Union No. 830, Brewery and Beer Distributor Drivers, Helpers and Platform Men, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. A0-36. June 5,196,0 ADVISORY OPINION This is a petition filed on April 5, 1962, by Local Union No. 830, Brewery and Beer Distributor Drivers, Helpers and Platform Alen, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Peti- tioner, for an advisory opinion in conformity with Section 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. Thereafter, on April 10, 1962, Terrizzi Beverage Company, herein called the Employer or primary Employer, filed an Answer to Peti- tion for Advisory Opinion. A. In pertinent part, the petition alleges as follows : 1. There is pending a complaint in equity filed by the Employer against the Petitioner and some individuals in the Court of Common Pleas, No. 6, of Philadelphia County, Pennsylvania, and docketed in that court as December Term of 1961, No. 2333. That complaint al- leged that the Petitioner and its members coerced the Employer by preventing and delaying the loading and unloading of beer onto its trucks at the platforms of C. Schmidt & Sons, Inc., herein called Schmidt, thereby interfering with the oral contract between the Em- ployer and Schmidt. In this court litigation, the Employer sought to have the Petitioner enjoined from : (1) Causing any platform man or member of said Local 830 or any member of said union or its representatives from doing any act or thing tending toward or having the effect of interfering, harassing or delaying the plaintiff's (Terrizzi) rights to be un- loaded and loaded with beer at the platforms of C. Schmidt & Sons, Inc. (2) Continuing to coerce, harass, humiliate and intimidate and interfere with the plaintiff's business by delaying said loading and unloading operations. 2. Thereafter, although it made no specific jurisdictional findings, the Court of Common Pleas, No. 6 of Philadelphia County issued a preliminary injunction against the Petitioner. An appeal from said preliminary injunction is pending in the Supreme Court of Pennsyl- vania, having been docketed there as January Term 1962, No. 285. 3. The Employer is engaged in the retail and wholesale distribution of malt beverages and soft drinks in West Chester, Chester County, 137 NLRB No. 59. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania, where its principal place of business is located. Al- though during the year 1960, its total sales were less than $500,000 and its direct and indirect purchases of goods from outside Pennsyl- vania were less than $50,000, the Board, in October 1961, asserted jurisdiction over the Employer and 18 other retail and wholesale bev- erage distributors, as members of the multiemployer Chester County Beer Distributors Association, herein called Chester Association which had bargained with the Petitioner on an associationwide basis.' 4. Schmidt is a brewery engaged in the manufacture of beer at Philadelphia, Pennsylvania. Annually, Schmidt ships outside of Pennsylvania, beer and malt products valued in excess of $50,000. Previously on November 9, 1959, the Board asserted jurisdiction over Schmidt's operations in connection with certain secondary activities of the Petitioner.2 5. The Petitioner believes that the allegations of the complaint filed in the court of common pleas fall within the purview of Section 8 (b) (4) of the Act and that the Board would assert jurisdiction herein because the Petitioner's activities involve Schmidt, a secondary em- ployer, over whose operations the Board would assert jurisdiction. 6. The Petitioner has no knowledge of any representation or un- fair labor practice proceedings involving the Petitioner or the Em- ployer now pending before the Board. B. In pertinent part, the Employer's answer alleges : 1. Schmidt and Chester Association are not parties to the proceed- ing herein and the Employer is not a member of Chester Association with respect to the court litigation instituted by the Employer against the Petitioner. 2. The Employer denies that it purchased any goods outside of Pennsylvania or that its sales and purchases of 1960 reflect its sales and purchases in 1961 or 1962. Further, it avers that no evidence was presented to the court of common pleas as to its commerce data during those 2 years. 3. The Employer asserts that, as the Petitioner has asserted no requests of any kind upon it concerning labor matters, there is no labor dispute between them and that, therefore, the court litigation for damages and injunctions against the Petitioner only concerned a personal, nonlabor question. It also avers that the litigation arose because the Petitioner and its members who were platform employees of Schmidt willfully and maliciously delayed the loading and unload- ing of the Employer's trucks at Schmidt's platform, thereby tortiously interfering with the oral contract between the Employer and Schmidt ' See Chester County Beer Distributors Association, 133 NLRB 771 The election directed therein was conducted on November 1, 19G1, and resulted in a determination that the Petitioner did not represent the employees of the members of the Chester Association. 2 Delaware Valley Beer Distributors Association , 125 NLRB 12, 20, 21, enfd . 281 F. 2d 319 (C.A. 3). TERRIZZI BEVERAGE COMPANY 497 and causing the Employer substantial time loss in the use of its equip- ment and employees. Accordingly, contrary to the Petitioner, the Employer contends that the allegations of the complaint in the court litigation do not fall within the scope of Section 8(b) (4) of the Act and that the Board should determine that it would not assert juris- diction herein. On the basis of the above, the Board is of the opinion that: 1. The Employer is engaged in the retail and wholesale distribu- tion of beverages in West Chester, Pennsylvania. The Board's stand- ard for exercising jurisdiction over retail enterprises which satisfy its legal or statutory jurisdiction is a minimum gross volume of business of $500,000 per annum (Carolina Supplies and Cement Co., 122 NLRB 88) ; while the Board's standard for asserting jurisdiction over wholesale or nonretail enterprises requires an annual minimum of $50,000 inflow or outflow, direct or indirect, as those terms are described in Siemons Mailing Service, 122 NLRB 81. On the facts submitted herein, the Employer's operations by themselves do not meet the Board's standard for asserting jurisdiction either as a re- tail or nonretail enterprise. 2. Schmidt, the secondary employer, is a brewery engaged in the manufacture of beer in Philadelphia, Pennsylvania. Although the Employer generally denied the allegations in the paragraph which set forth, inter alia, the commerce data with respect to Schmidt, it did not specifically deny that Schmidt annually ships products valued in excess of $50,000 outside of Pennsylvania. Such out-of-State shipments not only bring Schmidt within the Board's legal or statu- tory jurisdiction but also constitute sufficient outflow under the Board's decision in Siemens Mailing Service, supra, to warrant its assertion of jurisdiction over Schmidt under the nonretail standard.' 3. In cases involving secondary activities by a union which may be violative of Section 8(b) (4) of the Act where, as here, the primary Employer's operations do not meet the Board's jurisdictional standard, the Board will take into consideration for jurisdictional purposes not only the operations of the primary Employer but also the entire opera- tions of the secondary employer at the locations affected by the alleged conduct involved 4 The dispute between the Petitioner and the pri- mary Employer exists in Philadelphia and the Petitioner's activity with respect to the secondary employer Schmidt also occurred in Philadelphia, Pennsylvania. Philadelphia is thus the location af- fected by the Petitioner's secondary conduct. As indicated above, Schmidt is a Philadelphia enterprise which meets the Board's juris- dictional standard and over which the Board would assert jurisdiction. 3 As indicated above, the Board has previously asserted jurisdiction over Schmidt with respect to the Petitioner's secondary activities toward Schmidt. See footnote 2, supra. ' Jemcon Broadcasting Company, 135 NLRB 362, and cases cited in footnote 2 therein. 649856-63-vol . 13 7-3 3 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, and in accord with established Board prece- dent, the Board would assert jurisdiction over Terrizzi, the primary Employer, and Schmidt, the secondary employer, affected by the Petitioner's secondary activities, whether or not such activities are in fact violative of Section 8(b) (4) of the Act.' In view of the fore- going, the Board finds no merit in the primary Employer's conten- tion that the Petitioner's secondary activity may not be violative of Section 8 (b) (4) of the Act, nor in the further contention that the dispute is nonlabor in character. Advisory opinions are rendered only on the jurisdictional issue presented by the facts submitted and the Board will not presume to render an opinion on whether the sub- ject matter of the dispute is governed by the Act. See Board's State- ments of Procedures, Section 101.40. Finally, the fact that neither Schmidt nor Chester Association are parties to the court litigation or to the proceeding herein would not prevent the Board from asserting jurisdiction herein.6 Accordingly, the parties are therefore advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the facts here present, the commerce operations of Terrizzi, the primary Employer, and those of Schmidt, the secondary employer, at Philadelphia, Pennsylvania, the location affected by the Petitioner's secondary conduct are such that the Board would assert jurisdiction with respect to labor disputes cognizable under Section 8 or 10 of the Act. B See Jemcon Broadcasting Company, supra; and Madison Building & Construction Trades Council, et at. ( Wallace Hildebrandt, et al., d/b/a H & K Lathing Co., at al.), 134 NLRB 517. 9 See Jemcon Broadcasting Co, supra, where none of the secondary employers affected by the union's activities therein were parties to the court litigation or to the Board's advisory opinion proceeding Budd Electronics, Inc., and Lewyt Corporation, Co-Employers and David J. Rivkin . Case No. 2-CA-7496. June 6, 1962 DECISION AND ORDER On May 24, 1961, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent Budd Electronics, Inc. (referred to herein as Budd), had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action. The Trial Examiner also recommended that the com- plaint be dismissed as to Respondent Lewyt Corporation. Thereafter, the Respondents and Local 1614, International Brotherhood of Elec- trical Workers, AFL-CIO (referred to herein as the Union), filed 1,37 NTJRB No. 53.