Broome-Tioga Chapter of the New York State Assn.

National Labor Relations Board - Board Decisions

May 5, 1977

229 N.L.R.B. 459 (N.L.R.B. 1977)

BROOME-TIOGA CHAPTER OF THE NEW YORK STATE ASSN. 459
Broome-Tioga Chapter of the New York State
Association for Retarded Children, Inc. and Team-
sters Local 693, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case AO-192
May 5, 1977
ADVISORY OPINION
A petition and brief were filed on November 29
and December 9, 1976, respectively, by Broome-
Tioga Chapter of the New York State Association for
Retarded Children, Inc., herein called the Employer,
for an Advisory Opinion, in conformity with Sections
102.98 and 102.99 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
seeking to determine whether the Board would assert
jurisdiction over the Employer on the basis of its
current standards.
In pertinent part, the petition and brief allege as
follows:
1. There is pending before the New York State
Labor Relations Board, herein called the State
Board, a representation proceeding, docket number
CR-1753, filed by Teamsters Local 693, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, seeking to be certified as the representative of
certain employees of the Empbyer herein.
2. The Employer is a not-for-profit corporation
organized and existing under the laws of the State of
New York. The general nature of the Employer's
business is the education and rehabilitation of
mentally retarded persons. During the calendar year
1975, the Employer's income was $5 18,724, of which
the State of New York provided a substantial
portion. The remainder of the Employer's income
was provided primarily by Broome County, Tioga
County, United Way of Broome County, Inc., and
from sales and subcontracts of the Employer. There
is no allegation that these funds derive from Federal
revenue sharing programs nor is there an allegation
as to the extent, if any, to which the Employer makes
direct or indirect purchases from outside the State of
New York or makes sales or renders services directly
or indirectly outside of New York State, or is
otherwise affected by activities having a significant
impact on interstate commerce.
' CJ Easr Oakland Community Health Alliance, Inc., 218 NLRB 1290
(!975); Bewr!v Foundation, Inc., 2!9 NLR!? !3'5 :!975)1 4,-0 ,f
Guiding Hands, 2 18 NLRB 1277 (1975).
3. The petition alleges that the Union has
admitted the aforesaid commerce data and that the
State Board has made no findings with respect
thereto.
4. There is no representation or unfair labor
practice proceeding involving the same labor dispute
pending before this Board.
5. Although the parties have been served with a
copy of the petition for advisory opinion, no
response, as provided by the Board's Rules and
Regulations, has been filed by any of them.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is a not-for-profit corporation
whose general nature of business is the education
and rehabilitation of mentally retarded persons.
2. Although the submission by the Employer
alleges that during the calendar year 1975 actual
income amounted to in excess of $500,000, of which
the State of New York provided a substantial
portion, no evidence-such as direct or indirect out-
of-state purchases, sales, or services by the Employer
or participation in Federal revenue sharing pro-
grams-has been submitted in this proceeding to
show that its operations affect commerce and would
be subject to the Board's legal or statutory jurisdic-
tion.1 In these circumstances, the Board is unable to
make a meaningful determination as to whether or
not statutory jurisdiction exists over the operations of
the Employer herein.*
Accordingly, the parties are advised under Section
102.103 of the Board's Rules and Regulations that,
on the allegations submitted herein, the Board is
unable to conclude whether or not it would assert
jurisdiction over the operations of the Employer
herein.
MEMBER MURPHY, concurring:
I agree with my colleagues that this petition for an
advisory opinion should be dismissed. However, I
find this dismissal appropriate because a question
exists here as to whether jurisdiction should be
rejected on the ground that the Employer is a
charitable organization over whom this Board
should, in the exercise of its discretion, not assert its
jurisdiction, and such matters are not properly
determinable in this proceeding. See my dissenting
opinion in Valley United Health Services, Inc., 227
NLRB 728 (1977).
2 Oak Haven Nursing Home, Inc. and Spruce Haven Nursing Home, Inc.,
!69 NLRS 28': ("W).
229 NLRB No. 60