Pennsylvania Labor Relations Board

PENNSYLVANIA LABOR RELATIONS BOARD 741 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8 (a)(3) and (1) of the Act by advising Brau to the effect that, if he did not adjust the matter of his reinstatement fee with the Union, the Company would have to abide by the union-security clause in the existing collective-bargaining agreement between the Company and the Union. RECOMMENDED ORDER Based upon the above findings of fact and conclusions of law, it is recommended that the complaint herein be dismissed in its entirety. Pennsylvania Labor Relations Board and Chartiers Country Club and Bartenders Union Local No. 188, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO and Hotel & Restaurant Employees Alliance, Local No. 237, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case No. A0-42. October 31, 1962 ADVISORY OPINION This is a petition filed by the Pennsylvania Labor Relations Board, herein called the State Board, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. Thereafter, Chartiers Country Club, herein called the Employer, filed a "Response to the Petition for Advisory Opinion" and a supporting brief. In pertinent part, the petition,' the response, and brief, show as follows : 1. There is presently pending before the State Board two repre- sentation proceedings involving employees of the Employer (Cases Nos. 56 and 57, year of 1962) filed by Bartenders Union Local No. 188, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and by Hotel & Restaurant Employees Alliance, Local No. 237, Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, herein called Local 188 and Local 237, respectively, as well as an unfair labor practice charge Case No. 73, year of 1962, filed by Local 237 against the Employer. 2. The Employer, incorporated under Pennsylvania law, is a non- profit organization which enjoys a Bureau of Internal Revenue tax exemption. It has 300 bondholder members and, in addition, over 300 social members. For its membership, the Employer operates a golf and country club at Crafton, Pittsburgh, Pennsylvania, where it pro- vides the usual recreational facilities of a country club, and operates I With the petition for Advisory Opinion, the State Board also filed a transcript of the record before it in the two representation proceedings hereafter mentioned. 139 NLRB No. 54. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a bar, dining room, grill, and ballroom. It also conducts banquets and social functions sponsored by its members for educational, civic, and social groups and for industrial firms which are engaged in interstate commerce. Without the sponsorship of a member, none of the Em- ployer's facilities are available to the general public. 3. During the calendar year 1961, the Employer's gross revenue was approximately $550,000, of which $450,000 represented gross annual sales of goods, products, commodities, and/or revenue from services, while $100,000 represented annual dues of members. During that same annual period, the Employer made approximately $250,000 worth of purchases of goods, supplies, commodities, or services, in- cluding purchases of liquor within the State of Pennsylvania, a por- tion of which originated outside the State. 4. The Employer moved to dismiss the State Board petition on the grounds that : (a) The Board's Advisory Opinion procedures are inap- plicable because the Employer is a member of a class of employers for which there is no specific current standard; and (b) Section 14(c) of the Act precludes the Board from utilizing Advisory Opinion proce- dures to divest itself of jurisdiction over the Employer's country club operation in favor of the State Board. On the basis of the above, the Board is of the opinion that : 1. The Employer, a nonprofit Pennsylvania organization, is en- gaged in the operation of a golf and country club at Crafton, Pitts- burgh, Pennsylvania. 2. In the absence of any specific jurisdictional standard for the Employer's type of operation, the Board will apply to this particular case its current retail and nonretail standards, specifically leaving open the question whether to apply these standards in future cases involving similar employers 2 The current Board standard for the assertion of jurisdiction over retail enterprises within its statutory jurisdiction is an annual gross volume of business of at least $500,000, Carolina Supplies & Cement Company, 122 NLRB 88, 89; while the current nonretail standard requires an annual minimum of $50,000- out-of-State inflow or outflow, direct or indirect, Sievnons Mailing Service, 122 NLRB 81185. 3. During the calendar year of 1961, the Employer' s gross annual sales amounted to approximately $450,000, an unknown portion of which was revenue derived from banquets and social functions for industrial firms engaged in interstate commerce ; while its gross an- nual purchases amounted to approximately $250,000, an unknown portion of which represented local purchases of liquor originating outside the State of Pennsylvania. The Employer has no direct inflow- 2 See Dl Paso Country Club, Inc., 132 NLRB 942, 944, footnote 4. PENNSYLVANIA LABOR RELATIONS BOARD 743 or outflow and the amount of its indirect inflow or outflow, cognizable under our standards, if indeed there is any at all, is unknown. Under these circumstances, it does not appear that the Employer satisfies the Board's retail jurisdictional standard of $500,000 annual gross volume of business or the nonretail standard of $50,000 annual inflow or outflow. 4. In moving to dismiss the Petition herein, the Employer first con- tends that the Advisory Opinion procedures are inapplicable because Section 102.98 of the Board's Rules and Regulations requires that an Advisory Opinion be based upon the Board's "current standards," 3 and a current standard specifically for country clubs-the type of operation to which the Employer belongs-does not exist. Contrary to the Employer, and apart from the question as to the existence of a specific standard for country clubs as a class, the Board finds that its retail and nonretail standards are "current standards" within the meaning and intendment of Section 102.98 of its Rules and Regu- lations and that they have been properly applied in the Advisory Opinion rendered herein 4 The Board also rejects the Employer's second contention that the Board cannot act herein because under Section 14(c) of the Act, the Board can take jurisdictional action over "any class or category of employers" only "by rule of decision or by published rules adopted pursuant to the Administrative Pro- cedure Act" and that an Advisory Opinion is neither of these statu- tory alternatives. As the Board has applied its current retail and nonretail standards only to the specific Employer herein, and not to the class of employers to which it belongs, the Board finds that, aside from any other considerations, the statutory limitations of Section 14(c) of the Act are inapplicable because no "class or category of employers" is involved.5 Accordingly, the parties are advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the facts submitted, it does not appear that the commerce operations of the Employer satisfy the Board's standards for asserting jurisdic- tion over retail or nonretail enterprises and that, therefore, the Board would not assert jurisdiction over the Employer's operations with respect to disputes cognizable under Sections 8, 9, or 10 of the Act. CHAIRMAN MCCULLOCH and MEMBER FANNING took no part in the ,consideration of the above Advisory Opinion. 3 Section 102.98 (b) provides that "the agency or court may file a petition with the Board for an Advisory Opinion on whether the Board would decline to assert jurisdiction on the basis of its current standards." [ Emphasis supplied.] 4 See the El Paso ease, supra, footnote 2. 5 The Board, as iu El Paso, is not here deciding whether it would assert over country clubs which do meet the retail or the nonretail standards.