International Union Of Operating Engineers Local No. 49

National Labor Relations Board - Board Decisions

Jul 10, 1989

295 N.L.R.B. 966 (N.L.R.B. 1989)

966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers Local
No. 49 and The Catholic Cemeteries . Case AO-
269
July 10, 1989
ADVISORY OPINION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFr, HIGGINS, AND DEVANEY
On June 6 and 26, 1989, respectively, The
Catholic Cemeteries (the Petitioner) filed a Petition
for Advisory Opinion and a brief in support thereof
with the Board . In pertinent part the petition al-
leges as follows.
1. A petition for clarification or amendment of
appropriate unit (Case 89-R-2281 ) is currently
pending before the State of Minnesota Bureau of
Mediation Services (BMS) in which International
Union of Operating Engineers , Local No . 49 (the
Union) is seeking the inclusion of certain individ-
uals in the currently existing bargaining unit.
2. The Petitioner is a religious organization that
operates six cemeteries in Minneapolis and St. Paul,
Minnesota.
3. In the past fiscal year the Petitioner had gross
revenues equal to or exceeding $ 1.5 million and
purchased in excess of $19,900 in materials or serv-
ices directly from outside the State of Minnesota.
4. The Petitioner is unaware whether the Union
admits or denies the aforesaid commerce data and
the BMS has not made any findings with respect
thereto.
5. There are no representation or unfair labor
practice proceedings involving the matter currently
pending before the Board.
On June 22, 1989, the Union filed a brief in re-
sponse to the Petition for Advisory Opinion. The
Union asserts therein that it has no information by
which to admit or deny the aforesaid commerce al-
legations . However , the Union contends that the
Board should decline to assert jurisdiction over the
Petitioner inasmuch as the Union was certified by
the BMS as representative of the subject unit in
1980, the parties have voluntarily resolved all their
disputes through the BMS since that time , and the
volume of the Petitioner 's out-of-state purchases
has "in all probability not changed significantly"
during that period.
Having duly 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 revenue exceeds $500,000 and whose
annual out-of-state purchases are more than de min-
imis.l As the Petitioner alleges that its gross reve-
nues equaled or exceeded $ 1.5 million in the past
fiscal year , and that its direct out-of-state purchases
exceeded $19,900 in the same period , the Petitioner
clearly satisfies these standards. Although the Peti-
tioner may indeed have likewise satisfied these
standards in 1980 when the BMS initially certified
the Union in the subject unit, and has continued to
do so since during which time the Petitioner volun-
tarily submitted to the BMS's jurisdiction, this is
not in itself a reason for the Board to decline to
issue an advisory opinion or to exercise jurisdiction
where appropriate. 2
Accordingly, the parties are advised that, based
on the allegations in the petition, the Board would
assert jurisdiction over the Petitioner.3
i See Sunset Memorial Park Management Corp., 284 NLRB 480 (1987)
(citing Inglewood Park Cemetery Assn., 147 NLRB 803 (1964), enfd. 355
F.2d 448 (9th Cir.), cert. denied 384 U.S 951 (1966).
2 See Clifford W. Beers Guidance Clinic, 266 NLRB 89 (1983) We note
in this regard that the Union does not contend or present any facts that
would indicate that the Board would decline to entertain a unit -clarifica-
tion petition similar to the one now before the BMS . Cf. Box Tree Res-
taurant, 235 NLRB 926 (1978).
a 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 asserting jurisdiction . Accordingly, the instant Advisory Opinion is
intended to address this issue only , and expresses no view as to whether
there may be some other basis which might exempt the Petitioner from
the Board 's jurisdiction See, e .g., Christ the King Regional High School,
266 NLRB 738 (1983)
295 NLRB No. 103