Wyndham West at Garden City

National Labor Relations Board - Board Decisions

Apr 17, 1992

307 N.L.R.B. 136 (N.L.R.B. 1992)

136
307 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We have been administratively advised that the SLRB has taken
no action on the petition pending the Board’s ruling on the Peti-
tioner’s request for an advisory opinion.
2 The number of apartments sold was less than 10 percent.
3 This figure includes taxes paid for previous periods. The Em-
ployer’s cost and operating expenses for this 8-month period, minus
the taxes paid, exceeds $1 million.
4 The Petitioner submitted a ‘‘cash receipts’’ and ‘‘cash disburse-
ments’’ statement for calendar year 1991 with the petition.
5 The National Labor Relations Board has delegated its authority
in this proceeding to a three-member panel.
6 See, e.g., Carroll Associates, 300 NLRB 698 (1990) (apartment
buildings); Coastal Property Services, 299 NLRB 106 (1990)
(condominiums/cooperatives).
7 Although the Employer may not have met the Board’s jurisdic-
tional requirements in 1990 resulting in the dismissal of the petition
in Case 29–RC–7529, it is clear from the amounts alleged to have
been received in 1991 that it now satisfies the Board’s jurisidictional
standards. We note in this regard that in applying its standard, the
Board uniformly relies ‘‘on the experience of an employer during
the most recent calendar or fiscal year . . . .’’ Hebrew Free Burial
Assn., 299 NLRB 678 (1990).
Wyndham West at Garden City and Local 32B-32J,
Service Employees International Union. Case
AO–291
April 17, 1992
ADVISORY OPINION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On March 11, 1992, a petition for an advisory opin-
ion pursuant to Sections 102.98 and 102.99 of the
Board’s Rules and Regulations was received from Wil-
liam Ackerman, the court-appointed receiver for the
Employer, Wyndham West at Garden City, through his
attorney, Sidney L. Meyer, seeking to determine
whether the Board would assert jurisdiction over the
Employer’s operations.
The petition, in pertinent part, alleges as follows:
1. This matter was previously before the Board in
Case 29–RC–7529 but was dismissed by the Regional
Director for Region 29 on March 29, 1990, prior to
any hearing, on grounds that the Employer did not
meet the Board’s jurisdictional standards. A similar
matter is currently pending before the New York State
Labor Relations Board (the SLRB) in Case SE–
575739.1
2. The Employer is a housing complex located in
Long Island, New York, which was originally intended
as a condominium development that proved unsuccess-
ful.2 Foreclosure action was thereafter instituted by
two lending institutions, and the Petitioner was ap-
pointed as receiver by the court to operate the Employ-
er’s property while the foreclosure action is pending.
The Petitioner has been authorized by the court to rent
the unsold apartments. The Petitioner alleges that the
change in the nature of the development from a condo-
minium to a rental apartment complex also resulted in
a change in the Employer’s financial basis rendering
obsolete the evidence relied on by the Regional Direc-
tor in his dismissal of the petition in Case 29–RC–
7529.
3. From April to November 1990, the Employer’s
cost of operating and maintaining the property in ques-
tion exceeded $3 million.3 During the calendar year
1991, the Employer’s income totaled $6,440,083.91,
and its expenses totaled $5,813,239.83.4 The Employer
also purchased at least $50,000 worth of goods and
services from suppliers located outside the State of
New York, or from suppliers who purchased their
goods and services outside New York State for resale
within the State.
The Union has submitted a statement of position op-
posing the petition. It contends that in Case 29–RC–
7529, the Employer obtained a dismissal of the rep-
resentation petition by claiming it did not meet the
Board’s jurisdictional standards, and only after the
Union instituted proceedings with the SLRB did the
Employer contend that it was subject to the Board’s ju-
risdiction. The Union asserts that if the Board were to
assert jurisdiction, it would be rewarding the Employer
for its inconsistent, misleading, and delaying tactics,
and would deprive employees of the ability to file
charges due to the passage of time. The Union, how-
ever, does not contest the revenue data submitted by
the Petitioner in support of the petition, and the SLRB
has made no findings with respect thereto.
Having duly considered the matter,5 the Board is of
the opinion that it would assert jurisdiction over the
Employer. The Board has established a $500,000 dis-
cretionary standard for asserting jurisdiction over resi-
dential premises such as apartments and condomin-
iums.6 As the petition alleges that the Employer’s in-
come from the operation of its property during 1991
was $6,440,083.91, the Employer clearly satisfies the
Board’s discretionary jurisdiction.7 Further, as the Em-
ployer allegedly purchased over $50,000 worth of
goods and services from suppliers located outside the
State of New York, or from suppliers who purchased
such goods and services outside New York State for
resale
137WYNDHAM WEST AT GARDEN CITY
8 We find Elmsford Transportation Corp., 213 NLRB 257 (1974),
which the Union cites as support for its position that dismissal of
the petition is warranted, factually distinguishable from the instant
case. In Elmsford, the Board dismissed an employer’s petition for an
advisory opinion at a time when an election had already been con-
ducted by a state board and the Board’s policy is to accord to a
state-directed election the same effect it accords to its own elections.
The Board found dismissal to be warranted on grounds that the em-
ployer had engaged in ‘‘forum shopping’’ by asserting initially that
it was not subject to the Board’s jurisdiction and by thereafter not
contesting the state board’s jurisdiction over it until just prior to the
state-board election. Here, unlike in Elmsford, no SLRB election has
been conducted, and the Petitioner, who was not a party to the pro-
ceedings in Case 29–CA–7529, has, since August 1990 (soon after
being appointed receiver), asserted that the SLRB does not have ju-
risdiction over the Employer and that the Employer, instead, is sub-
ject to the Board’s jurisdiction, an assertion that the Union does not
contest. For these reasons, we find that Elmsford is not controlling
here, and that the Petitioner has not engaged in ‘‘forum-shopping,’’
as suggested by the Union.
9 The Board’s advisory opinion proceedings under Sec. 102.98(a)
of the Board’s Rules and Regulations are designed primarily to de-
termine whether an Employer’s operations meet the Board’s ‘‘com-
merce’’ standards for asserting jurisdiction. Accordingly, the instant
advisory opinion is not intended to express any view as to whether
the Board would, under Sec. 9(c) of the Act, certify the Union as
the representative of the unit petitioned for in the SLRB proceeding,
or as to the merits or timeliness of any charge that may be filed with
the Board. See generally Sec. 101.40(e) of the Board’s Rules and
Regulations.
within the State, the Employer also clearly satisfies the
Board’s statutory standard for asserting jurisdiction.8
Accordingly, the parties are advised that, based on
the foregoing allegations and assumptions, the Board
would assert jurisdiction over the Employer.9