Point East Condominium Owners Association, Inc.

National Labor Relations Board - Board DecisionsSep 1, 1971

193 N.L.R.B. 6 (N.L.R.B. 1971)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Point East Condominium Owners Association, Inc. and Service Employees International Union, Local # 362, AFL-CIO, Petitioner . Case 12-RC-3794 September 1, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Jack T. Brellis of the National Labor Relations Board. Following the close of the hearing the Regional Director for Region 12 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed motions and briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed.2 Upon the entire record in this proceeding, the Board finds, for the reasons stated below, that it will not effectuate the policies of the Act to assert jurisdiction over the Employer at this time. The Employer is a Florida nonprofit corporation engaged in the business of operating and maintaining a condominium in Miami, Florida, which contains 1,266 residential units and various recreational facilities. The record shows that the Employer is a distinct and separate legal entity from the individual unit owners. The parties stipulated and we find that during 1970 the Employ- er's gross revenues exceeded $500,000 and the Employer purchased and received goods in an i Employer's motion for oral argument is hereby denied , since the record and briefs adequately present the issues and positions of the parties. 2 We have duly considered the Employer 's arguments based upon the Constitution and the Administrative Procedure Act and find that they are without merit We further find that the Petitioner's timely posthearing amount in excess of $6,000, which goods have moved in interstate commerce. The Employer contends that its operations do. not satisfy any applicable established jurisdictional stand- ard. We agree. There is an insufficient showing on the record before us that our retail standard is appropri- ate in this case. Customarily, a retail enterprise is engaged in the sale of a product or service to the ultimate consumer. Thus, a transaction between entities is assumed. On the record before us it appears that the Employer exists to provide upkeep on premises, which house 1,266 privately owned units. For all intents and purposes, the Employer, not dissimilar to any other cooperative, appears to be the creature of unit owners, each of whom shares only generally in its services. Yet the Employer provides no services to persons other than the owners, nor does it operate for a profit. Any profits received are returned to the unit owners. In these circumstances, it is not entirely clear that the Employer, though incorporated pursuant to Florida law, is an entity engaged in the sale of a service to persons. Rather, the Employer appears to be an instrumentality through which the owners have merged together to share collectively in meeting the expenses entailed in maintaining the upkeep and appearance of their property. According- ly as we are not satisfied, on the record before us, that the relationship between, the Employer and the unit owners is one of doing business, and as the commerce data fails to satisfy any other appropriate Board standard, we shall, at this time, decline to assert jurisdiction and shall dismiss the petition. ORDER It is hereby ordered that the subpoena duces tecum issued at the hearing be, and hereby is, quashed. IT IS FURTHER ORDERED that the petition filed herein be, and it hereby is, dismissed. motion to quash a subpoena duces tecum issued at the hearing should be granted , as the documents sought by the Employer lack relevancy to our determination , and since the subpena is in any event technically defective. The Employer's motion for enforcement of the subpena is accordingly denied. 193 NLRB No. 6