Child & Family Service

National Labor Relations Board - Board Decisions

Sep 29, 1994

315 N.L.R.B. 13 (N.L.R.B. 1994)

13
315 NLRB No. 6
CHILD & FAMILY SERVICE
1 The Board has delegated its authority in this proceeding to a
three-member panel.
2 United Way of Howard County, 287 NLRB 987 (1988); Hispanic
Federation for Social Development, 284 NLRB 500 (1987)
($250,000 standard applied for such organizations).
3 See Beers Guidance Clinic, 266 NLRB 89 (1983).
4 Inter-Neighborhood Housing Corp., 311 NLRB 1342 (1993); Riv
Realty, 267 NLRB 325 (1983).
Child & Family Service, Petitioner and United Pub-
lic Workers, AFSCME, Local 646, AFL–CIO.
Case AO–315
September 29, 1994
ADVISORY OPINION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
Pursuant to Sections 102.98(a) and 102.99 of the
National Labor Relations Board’s Rules and Regula-
tions, on August 24, 1994, Child and Family Service
(the Employer), filed a petition for Advisory Opinion
as to whether the Board would assert jurisdiction over
its operations. In pertinent part, the petition alleges as
follows:
1. A proceeding, Case 94–4(CE), is currently pend-
ing before the Hawaii Labor Relations Board (HLRB)
in which the Union alleges that the Employer violated
the terms of a collective-bargaining agreement by fail-
ing to apply the contract between the Employer and
the Union to employees of the Employer located on is-
lands other than the Island of Oahu in the State of Ha-
waii.
2. The Employer is a private, nonprofit organization
that provides social and welfare services within the
State of Hawaii and provides a wide range of
social/human services within the State of Hawaii. The
Employer is not an agency of a Federal or state gov-
ernment, or a subdivision of a Federal or state govern-
ment.
3. During the past fiscal year, the Employer had
gross revenues in excess of $9 million, and purchased
goods and services valued in excess of $25,000 di-
rectly from outside the State of Hawaii and from per-
sons who purchased them from points outside the
State. In addition, the Employer has received revenues
in excess of $2 million from the United States Govern-
ment.
4. The Employer believes that neither the Union nor
the HLRB disputes the aforesaid commerce data.
5. The HLRB issued a decision on August 16, 1994,
in Case 94–4(CE), denying the Employer’s motion to
dismiss the unfair labor practice complaint. In its deci-
sion, the HLRB found that the Employer had gross
revenues of over $9 million in fiscal year 1992 and
that the Employer would otherwise meet the National
Labor Relations Board’s jurisdictional requirements for
nonprofit organizations, but held that the HLRB has
continuing jurisdiction over the Employer, based on a
certification of the Union as the representative of cer-
tain employees of the Employer by the Hawaii Em-
ployment Relations Board, the predecessor of the
HLRB, on July 11, 1975, in Case 74–29, until the
NLRB asserts jurisdiction over the matter. The HLRB
scheduled a hearing for September 2, 1994, in Case
94–4(CE).
6. There are no representation or unfair labor prac-
tice proceedings involving the Employer pending be-
fore the NLRB involving the same labor dispute. The
Employer has filed a charge against the Union in Case
37–CB–1134 alleging a refusal to bargain in violation
of Section 8(b)(3) of the Act, but that refusal-to-bar-
gain charge does not involve the same issue as that
pending before the HLRB, to wit, the status of em-
ployees of the Employer on islands other than the Is-
land of Oahu.
On September 7, 1994, the Union filed a memoran-
dum in opposition to the petition for Advisory Opin-
ion. The Union argues, inter alia, that because the
HLRB asserted jurisdiction over the Employer in the
representation proceeding in 1975, when the NLRB
was declining to assert jurisdiction over such nonprofit
organizations, the Petitioner is precluded by the doc-
trines of res judicata and collateral estoppel from seek-
ing to relitigate the jurisdictional facts. Accordingly,
the Union argues, the NLRB should deny any effort to
raise the issue of the NLRB’s jurisdiction over the Em-
ployer. In its brief in support of the petition, however,
the Employer argues, inter alia, that the NLRB was not
involved in the HLRB’s 1975 assertion of jurisdiction
over the Employer, and that the Union’s argument that
the NLRB’s assertion of jurisdiction is now precluded
by res judicata or collateral estoppel is misplaced, friv-
olous, and without any legal support.
Having duly considered the matter,1 the Board is of
the opinion that, based on the foregoing commerce
data, it would assert jurisdiction over the Employer.2
Contrary to the Union’s contention, the fact that the
HLRB previously has asserted jurisdiction over the
Employer does not preclude the NLRB from asserting
jurisdiction at a later date.3 Further, although the
Board has a longstanding policy, based on sound prin-
ciples of administrative efficiency and economy, that a
petition for advisory opinion will not be entertained
when an unfair labor practice proceeding is pending
before the NLRB and there is no need for a more ex-
peditious jurisdictional determination,4 here there is a
hearing before the HLRB scheduled for September 2,
1994, in Case 94–4(CE) which would warrant an expe-
ditious jurisdictional ruling. Under these circumstances,
we find it appropriate to issue the requested opinion.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Board’s advisory opinion proceedings under Sec. 102.98(a)
are designed primarily to determine whether an employer’s oper-
ations meet the Board’s ‘‘commerce’’ standards for asserting juris-
diction. Accordingly, the instant Advisory Opinion is not intended
to express any view whether the Board would certify the Union as
representative of the current unit under Sec. 9(c) of the Act. See
generally Sec. 101.40 of the Board’s Rules.
Accordingly, the parties are advised that, based on
the foregoing allegations and assumptions, the Board
would assert jurisdiction over the Employer.5