Hebrew Free Burial Association, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1990

299 N.L.R.B. 678 (N.L.R.B. 1990)

678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hebrew Free Burial Association, Inc. and Cemetery
Workers and Greens Attendants Union, Local
365, S.E.I.U., AFL-CIO. Case A0-279
August 31, 1990
ADVISORY OPINION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
On July 20, 1990, Hebrew Free Burial Associa-
tion, Inc , the Petitioner, filed a petition for an ad-
visory opinion with the Board, pursuant to Section
102 98 et seq of the Board's Rules and Regula-
tions, to determine if the Board would assert juns-
diction.over
In pertinent part, the petition alleges as follows
1 There is currently pending before the New
York State Labor Relations Board (the SLRB) an
unfair labor practice charge filed by Cemetery
Workers and Greens Attendants Union, Local 365,
SEIU, AFL-CIO (the Union) alleging that the
Petitioner refused to bargain in good faith during
collective-bargaining negotiations by failing to
make a counteroffer to the Union's last bargaining
proposal
2 The Petitioner is a not-for-profit charitable or-
ganization engaged in providing burial services for
Jewish indigents, homeless, and individuals without
surviving family members The Petitioner owns
two cemeteries in Staten Island, New York, and
cemetery plots at other Jewish cemeteries in New
York and New Jersey, where the burial services
are arranged
3 During 1989, the Petitioner's gross annual rev-
enues were $518,619 In 1990, the Petitioner pur-
chased goods and matenals from outside the State
of New York, such as caskets manufactured in
Tennessee, valued m excess of $15,000
4 The Union does not challenge the Petitioner's
1989 gross annual revenue data, and the SLRB has
made no findings with respect thereto
5 There is no representation or unfair labor
practice proceeding involving the same labor dis-
pute currently pending before the Board
On July 30, 1990, the Union filed a statement of
position opposing the petition, 1 contending that the
'On August 10, 1990, the Union filed a supplemental statement with
the Board which basically reiterates its position On August 16, 1990, the
Petitioner filed a response to the Union's supplemental statement reiterat-
Petitioner does not meet the Board's $500,000 dis-
cretionary jurisdictional standard because certain
amounts listed as revenue by the Petitioner in its
1989 financial statement—$156,120 in contributions
and $45,947 in insurance reimbursement—appear to
be of a nonrecurring nature and should not be con-
sidered by the Board in determining whether the
Petitioner satisfies its jurisdictional standards The
Union further contends that the Petitioner should
be required to furnish the Board with a profit-and-
loss statement for the first 6 months of 1990 so that
it can ascertain whether the Petitioner's financial
activity for 1989 was a one-time event Finally, it
contends that the Board should not, in any event,
assert jurisdiction over the Petitioner because the
latter is a religious organization
Having considered the matter, the Board is of
the opinion that it would assert jurisdiction over
the Petitioner The Board has traditionally asserted
jurisdiction over the operators of cemeteries whose
gross annual revenues exceed $500,000 and whose
annual out-of-state purchases are more than de mm-
inns 2 As the Petitioner alleges that its gross annual
revenues during the calendar year endmg 1989 ex-
ceeded $500,000, and that its direct out-of-state
purchases were over $15,000, the Petitioner clearly
satisfies these standards Contrary to the Union's
assertion, the inclusion of certain alleged nonrecur-
ring revenues in calculating the Petitioner's total
gross annual revenues for 1989 does not constitute
grounds for declining to assert jurisdiction 3 Nor
do we deem it necessary for the Petitioner to
submit a fmancial statement for the first 6 months
of 1990 in order to determine whether the Petition-
er meets our jurisdictional standards, because in ap-
plying its standards the Board has uniformly relied
"on the expenence of an employer dunng the most
recent calendar or fiscal year, or the 12-month
period immediately preceding the hearing before
the Board, where such expenence was available "4
mg its own position that its charitable contributions and insurance reim-
bursement for 1989 are properly includable as part of its total 1989 gross
annual revenues
2 See Operating Engineers Local 49 (Catholic Cemeteries), 295 NLRB
966 (1989)
3 See, e g, NLRB v Timberland Packing Corp. 550 F 2d 500, 502 (9th
Cir 1977) We note, in any event, that the Union's assertion concerning
the alleged nonrecurring nature of some of the Petitioner's 1989 revenues
is not supported by any evidence and is based on speculation
4 See Myers & Camille Painters, 131 NLRB 72, 74 (1961), citing Aroos-
took Federation of Farmers, 114 NLRB 538, 539 (1955)
299 NLRB No 100
HEBREW FREE BURIAL ASSN 679

Accordingly, the parties are advised that, based Board would assert jurisdiction over the Petition-

on the foregoing allegations and assumptions, the er 5
The Union, as noted, also seeks dismissal of the petition on the
ground that the Petitioner is a religious organization and that the Board
consequently lacks junschction over it under NLRB v Catholic Bishop of
Chicago, 440 US 490 (1979) However, the Board's advisory opinion
proceedings under Sec 102 98(a) of the Board's Rules and Regulations
are designed primarily to determine whether an employer's operations
meet the Board's commerce standards for assertmg jurisdiction Accord-
ingly, the instant Advisory Opinion addresses this Issue only, and ex-
presses no view as to whether the Petitioner may be exempt from the
Board's jurisdiction on some other grounds See, e g, Operating Engi-
neers, supra at fn 3