The District Court of the Tenth Judicial District of the State of Idaho

IDAHO STATE DISTRICT COURT The District Court of the Tenth Judicial District of the State of Idaho , in and for the County of Nez Perce and Cox's Food Center, Inc., a Corporation and Retail Clerks Union, Local No. 1653; Retail Clerks Union, Local No. 1439; Retail Clerks International Association , AFL-CIO, et als. Case AO-101. April 24, 1967 ADVISORY OPINION This is a petition filed by the District Court of the Tenth Judicial District of the State of Idaho in and for the county of Nez Perce, herein called the State district court, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board Rules and Regulations, Series 8, as amended. In pertinent part, the petition and attachments thereto allege as follows: 1. There is presently pending in the State district court an injunction proceeding (Docket 15171) filed on May 25, 1962, by Cox's Food Center, Inc., herein called the Employer, for injunctive relief and damages against Retail Clerks Union, Local No. 1653 and Retail Clerks Union, Local No. 1439, herein called Locals 1653 and 1439, respectively, and against Retail Clerks International Association, AFL-CIO, and certain individuals for picketing and handbilling the Employer's place of business since February 16, 1962.' On appeal from the State district court's October 11, 1964, ruling dismissing the proceeding and dissolving the temporary injunction for lack of jurisdiction, the Supreme Court of the State of Idaho on December 16, 1966, reversed and remanded (Docket 9622), with instructions to file the instant Advisory Opinion. 2. The Employer, a corporation, operates a retail store in Lewiston Orchards, Nez Perce County, about 5 miles from Lewiston, Idaho. 3. Pursuant to the request of the Commissioner of Labor for the State of Idaho for telegraphic advice, the Officer-in-Charge of the Board's Portland, Oregon, office advised on February 28, 1962, that the Employer had reported that its total sales for the past calendar and fiscal year exceeded $500,000 and that during this same period it purchased from local firms in excess of $50,000 goods which originated outside the State of Idaho. Accordingly, he advised further that "you may anticipate that [the Board] has asserted jurisdiction over [the Employer] on the basis of [the Employer's] report since the figures he ' The Employer previously had refused to execute a new collective-bargaining agreement with Local 1653, the recognized bargaining representative 2 Section 14(c)(1) provides "The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute involving any class or category of employers, 95 reports are in excess of the minimum required for an assertion of federal jurisdiction under established criteria." Previously, unfair labor practice charges in Case 19-CA-2386 filed by Local 1439 against the Employer had been dismissed as lacking in merit. 4. On March 16 and November 2, 1962, the Employer, in order to determine the jurisdictional issue, filed representation petitions. in Cases 19-RM-380 and 429, respectively. The Board dismissed these petitions because Locals 1439 and 1653 disclaimed any interest in representing the Employer's employees. 5. In its dismissal of the Employer' s injunction action, the State district court on October 11, 1964, had found that (a) the Employer's volume of business for 1960 and 1961 exceeded $500,000; (b) its 1962 volume had dropped to $465,671.08 because of the picketing; (c) most of its stock purchased for resale was shipped from outside the State of Idaho; and (d) jurisdiction was exclusively in the Board. 6. On appeal, the Supreme Court of Idaho, after considering, inter alia, Section 14(c)(1) of the National Labor Relations Act,' found that the dismissals of the unfair labor practice and representation proceedings before the Board "did not ipso facto constitute declinations of the NLRB to assert jurisdiction." Accordingly, it instructed the lower court to file the petition for Advisory Opinion to determine whether the Board would decline to assert jurisdiction on the basis of its current standards. 7. There is no representation or unfair labor practice proceeding presently before us involving the parties hereto. 8. Although served with a copy of the petition for Advisory Opinion herein, no response as provided by the Board's Rules and Regulations has been filed by any party. On the basis of the above, the Board is of the opinion that: 1. The Employer, a corporation, is a retail enterprise engaged in retail operations at Lewiston Orchards, Nez Perce County, Idaho, about 5 miles from Lewiston. 2. The Board's current 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 and Cement Co., 122 NLRB 88, 89. 3. The Employer's annual purchases of most of its stock which originates outside the State of Idaho constitute inflow under Siemons Mailing Service, 122 where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959 " 164 NLRB No. 16 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 81, 85, thereby establishing the Board's statutory jurisdiction over the Employer. The Employer's gross volume of business of more than $500,000 during calendar years 1960 and 1961 meets the monetary test for retail enterprises so that the Board would have asserted jurisdiction over the Employer's operations in 1962 (when the dispute herein arose), even though the gross volume of business for 1962 fell below $500,000. The Supreme Court of Idaho properly cited the Board's McSweeney decision where it is stated that "the Board, in applying its jurisdictional standards, uniformly relies on the past experience of an employer rather than its future operations."3 Further, that Court correctly stated that the drop in the Employer's 1962 volume of business as a result of the picketing "can not be taken into consideration as a factor in defeasance of the jurisdiction of the NLRB."4 Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations that upon such commerce facts as are contained in the allegations above, the Board would assert jurisdiction over the operations of the Employer with respect to disputes cognizable under Sections 8, 9, and 10 of the Act. 3 Jos McSweeney & Sons, Inc, 119 NLRB 1399, 1400, see also E. L. Boggs Plastering Company, 150 NLRB 158, 170 " See Fairmount Construction Co , 95 NLRB 969, 971, where the Board stated "If, absent the occurrence of this strike. the operations of Fairmount would have met the requirements set forth by the Board for asserting jurisdiction , a dismissal for want of jurisdiction would be self-defeating."