New York Institute

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1099 (N.L.R.B. 1979)

THE NEW YORK INS'IIIll'tIIE
The New York Institute for the Education of the Blind
and New York State United Federation of Teach-
ers. Case AO-217
December 14, 1979
ADVISORY OPINION
On October 2, 1979, The New York Institute for
the Education of the Blind, herein called the Peti-
tioner, filed a petition for an advisory opinion in con-
formity with Sections 102.98 and 102.99 of the Na-
tional Labor Relations Board Rules and Regulations,
Series 8, as amended, seeking a determination that
the Board would assert jurisdiction over its opera-
tions.' On October 15, 1979, the Petitioner filed a let-
ter brief in support of its position and requesting oral
argument. Thereafter, on November 6, 1979, a letter
was received from the Union advising that its opinion
and that of the State Board's general counsel was that
Board jurisdiction was "likely" and submitting that
the petition for advisory opinion should be dismissed
as premature and inappropriate.
In pertinent part, the petition, the letter brief, and
the Union's letter allege as follows:2
1. There are pending before the State Board repre-
sentation petitions filed in Cases SE-52258, SE-
52234, and SE-52235 by the Union, which seek to be
certified as the representative of certain employees of
the Petitioner. Thereafter the Union filed with the
Board three similar representation petitions in Cases
2 RC-18532, 2 RC-18533, and 2-RC-18534, which
duplicate the petitions presently before the State
Board. A hearing had been scheduled by the Board's
Regional Director for Region 2 for November 5,
1979.
2. The Petitioner is a residential care educational
facility for blind and blind multiple-handicapped
children. During the fiscal year 1978 79, the Peti-
In addition. the Petitioner has filed an action in the Supreme Court of the
State of New York, County of New York. against the New York State Labor
Relations Board, herein called the State Board, and against the New York
State United Federation of Teachers, herein called the Union. seeking a
declaration that the State Board has no jurisdiction over the Petitioner
herein.
2 The Petitioner's request for oral argument is denied as the suhmissions of
the parties adequately present their positions.
tioner received, in addition to tuition income of
$36,950., New York state grants amounting $2,215.-
587. and unrestricted Federal grants totaling in excess
of $1 million. During this period, its expenses for pay-
roll, materials and supplies, and equipment and its
telephone costs exceeded $3.400,000.
3. The above commerce data has been neither ad-
mitted nor denied by the Union nor has the State
Board, which has stayed its proceedings pending the
Board's resolution of the jurisdictional issue, made
any findings with respect thereto.
4. Although served with a copy of the petition for
advisory opinion, the State Board has filed no re-
sponse thereto, as provided by the Board's Rules and
Regulations.
On the basis of the foregoing, the Board is of the
opinion that:
As indicated above the Petitioner seeks an advisory
opinion determining that the Board has jurisdiction,
and the Union, while sharing the opinion of the State
Board's general counsel that Board jurisdiction is
"likely," has submitted that the petition herein be dis-
missed as premature and inappropriate because of the
petitions pending before the Board. We agree with
the Union.
Our rules providing for the issuance of advisory
opinions were promulgated to provide a method for
state agencies and persons in doubt to determine
whether the Board would assert jurisdiction in certain
circumstances. However, when a statutory represen-
tation proceeding instituted before the Board has ad-
vanced to a formal stage where a binding adjudica-
tion of the jurisdictional issue can be obtained from
the Board within the framework of that proceeding,
and no other consideration suggesting an urgent need
for earlier Board determination of the jurisdictional
question alone is brought to the Board's attention, the
underlying purpose of the advisory opinion proce-
dures is better served, and without unnecessary dupli-
cation and possible confusion, if the Board follows
that practice of confining itself solely to the resolution
of the statutory representation proceeding.3
Accordingly, it is hereby ordered that the petition
for advisory opinion be, and it hereby is, dismissed.
I International Bureau for Protection & Insestigation. Ltd. 236 NLRB 1356
(1978); Hotel & Restaurant Employees & Bartenders nion, Local 49, etc.
(Diamond Springs Hotel Corporation). 236 N.RB 711 (1978). Maitr'D) Res-
taurant. 145 NI.RB 1161 (1964).
246 NLRB No. 173
1099