Milk Drivers Local 680

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Milk Drivers and Dairy Employees Local 680 and Cream-O-Land Dairy, A Corporation of New Jer- sey. Case AO- 123 August 26, 1970 ADVISORY OPINION This is a petition filed on July 23, 1970, by Milk Drivers and Dairy Employees, a labor organization herein called the Petitioner, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regu- lations, Series 8, as amended . On July 27, 1970, Cream-O-Land Dairy, herein called the Employer, filed a response to the petition. On July 29, 1970, the Petitioner filed a reply to the Employer's response. Thereafter, on August 7, John J. Cuneo, Regional Director for Region 22, National Labor Relations Board, Newark, New Jersey, herein called the Region- al Director, filed a motion to intervene, setting forth jurisdictional information discovered in the course of his investigation of the representation proceedings in Case 22-RC-3174. Subsequently, on August 17, 1970, the Petitioner and the Employer filed responses to the Regional Director's intervention. On August 20, 1970, the Employer filed a supplemental response. The Regional Director's motion to intervene is grant- ed.' In pertinent part, the petition, the response thereto, the reply to the response, and the intervention and responses thereto allege as follows: 1. There is presently pending an injunction action, Docket No. C 3226-69, in the Superior Court of New Jersey, Chancery Division, New Brunswick, New Jersey, herein called the State Court, instituted by the Employer seeking to enjoin the Petitioner from picketing the products of the Employer. The State Court has enjoined and restrained the Petitioner "until further Order of the Court." On July 23, 1970, the Petitioner forwarded to the Employer's Counsel a notice of intent to move for leave to appeal, from the State Court's Order. 2. The Employer, a New Jersey Corporation, is engaged in the processing and sale of milk and milk products in the State of New Jersey. 3. At the present time, July 1970, none of the Employer's total purchases of milk and dairy products are made form outside the State of New Jersey, and all its milk sales are made within the State of New Jersey. Annually, the Employer has made approximately $1 million in retail sales and ' The Board has not considered the Petitioner's request for injunctive relief in the United States District Court against the State Court proceed- ings mentioned hereinafter since the Board views such a request to be inappropriate in an Advisory Opinion proceeding 185 NLRB No. 28 home deliveries, approximately $625,000 in sales to supermarkets and chain stores, and approximately $1'/2 million in sales to other wholesale accounts. As indicated above, all these sales are made entirely within the State of New Jersey. In addition, the Employer annually purchases approximately $200,000 worth of bottles, containers, cases, supplies and trucks directly from outside the State of New Jersey. 4. In his investigation of Case 22-RC-3174, the Regional Director found as follows: For calendar year 1965, the Employer had a gross annual revenue of $1,610,151.50, none of which came from sales of milk and milk products made directly out of the State of New Jersey, or from sales to local customers who were engaged in interstate commerce. Its purchas- es of goods, supplies, commodities, or services was $998,316.26, most of which represented purchases made directly outside the State of New Jersey or local purchases of goods, supplies, commodities, or services originating outside the State of New Jersey. The Employer conceded that it was engaged in inter- state commerce and subject to the Board's jurisdiction. On March 4, 1966, the Regional Director approved the withdrawal of the petition because of a contract- bar issue. 5. The Employer argues that the petition should be dismissed for lack of jurisdiction, relying particular- ly on the factual findings of the State Court that the Board, "has on previous occasion' indicated that the [Employer] corporation did not meet the criteria established by the National Labor Relations Board relative to its volume and interstate activity and had declined to accept jurisdiction of the problems therein confronted by the corporation." On the other hand, the Petitioner argues that the Regional Director in Case 22-RC-3174 had asserted jurisdiction. As the Regional Director has advised, the Employer had conceded the Board's jurisdiction in that proceeding. 6. Except to the extent herin set forth, the State Court has made no findings with respect to the aforementioned commerce data. 7 There is no representation or unfair labor practice proceeding involving the same labor dispute now pending before the Board. On the basis of the above, the Board is of the opinion that: 1. The Employer is a retail and nonretail enterprise engaged in the sale and processing of milk products in the State of New Jersey. Its home deliveries and sales are retail in nature, while its sales to chain stores, supermarkets, and other wholesale accounts are nonretail in nature. As a combined retail and nonretail enterprise whose nonretail business is not ' Apparently in 1954, see, Milk Drivers & Dairy Employees Local 680 v Cream-O-Land Dairy, 39 N J Sup 163, 120 A 2nd 640 (App Div 1956) MILK DRIVERS LOCAL 680 de minimis, either the retail or nonretail jurisdictional standards is applicable to the Employer's operations.' 2. The current Board standards for the assertion of jurisdiction over retail establishments 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. The Employer's approximately $200,000 purchases of bottles, contain- ers, cases and supplies, and trucks, directly from outside the State of New Jersey, establishes the Board's statutory jurisdiction, while its annual revenues of approximately $3.1 million in sales and home deliver- 143 ies exceeds the monetary test for the assertion of jurisdiction over retail enterprises.' Accordingly, the parties are advised, under Section 102.113 of the Board's Rules and Regulations, Series 8, as amended, that, on the allegations submitted herein, the Board would assert jurisdiction over the Employer's operations with respect to matters cogniza- ble under Sections 8, 9, and 10 of the Act. ' Appliance Supply Company, 127 NLRB 318, Man Products, Inc, 128 NLRB 546, Indiana Bottled Gas Co, 128 NLRB 1441 ' In these circumstances, it is unnecessary to consider the applicability of the nonretail jurisdictional standard