Double A Property Associates, Owner

DOUBLE A PROPERTY ASSOCIATES, OWNER, ET AL. Double A Property Associates, Owner, Herbert Donner, Agent; and Double A Property Associates, Owner Herbert Donner and/or Inter Boro Management, Agents and Local 32B-32J, Service Employees International Union, AFL- CIO. Case AO-220 May 13, 1980 ADVISORY OPINION A petition was filed on February 28, 1980, by Double A Property Associates, owner, Herbert Donner, Agent, and Double A Property Associates, owner, Herbert Donner and/or Inter Boro Management, Agents, herein called the Employer, for an advisory opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, requesting the Board to determine whether it would assert jurisdiction over the Employer's operations. On March 17, 1980, the New York State Labor Relations Board, herein called the State Board, filed a statement opposing the petition and on the same date the Employer filed a memorandum of fact and law in support of its request. Thereafter, on March 26, 1980, the State Board filed an additional statement replying to the Employer's memorandum. In pertinent part, the petition, memorandum, and statements allege as follows: 1. There are pending before the State Board two consolidated unfair labor practice proceedings, Cases SU-52271 and SU-52319, filed on July 6 and 30, 1979, respectively, as amended on October 23, 1979, against the Employer by Local 32B-32J, Service Employees International Union, AFL- CIO, herein called the Union, in which the Employer was charged with engaging in unfair labor practices in violation of the New York State Labor Relations Act. The hearing before the administrative law judge was closed on January 7, 1980, without any contention or introduction of evidence on the issue that this Board, not the State Board, has jurisdiction. Thereafter, the State Board denied the Employer's motion to reopen the hearing. On February 27, 1980, the administrative law judge issued his intermediate report (1) finding that the Employer had refused to bargain collectively in good faith with the Union and had unlawfully discharged employee Martin Taylor; and (2) recommending that the Employer take appropriate action. 2. The Employer is engaged in the business of managing residential and commerical properties in the city of New York. It manages properties whose gross annual rent roll is in excess of $500,000. 3. The Union does not admit or deny the aforesaid commerce data and the State Board has made no findings with respect thereto. 4. In contending that the Board should advise that it would have jurisdiction over the Employer's operations which meet the Board's discretionary standard for property management enterprises,¹ the Employer asserts that the State Board had arbitrarily refused to reopen the hearing which the Administrative Law Judge had closed despite an adjournment request. Accordingly, it contends that it had been precluded from developing a complete and separate record and from raising certain legal issues before the Administrative Law Judge. Because of the State Board's failure to deal with these issues, the Employer filed the instant petition for advisory opinion so that the Board, through the exercise of its exclusive jurisdiction, would thereby afford the Employer due process and prevent irreparable harm to it. The Employer further argues that this is not a case of "forum shopping" where the Board would decline to assert jurisdiction because the party had participated in a full hearing before a state agency;2 but rather, this is a case where the State Board had arbitrarily and capriciously denied the Employer a complete hearing to which it is constitutionally and statutorily entitled and, therefore, the Board should not apply its "forum shopping" precedents to refuse to assert jurisdiction herein. 5. In its opposition, the State Board argues that the Board should not assert jurisdiction not only because this is a case of "forum shopping," but also because the Employer should be estopped from belatedly raising at this time the issue of jurisdiction. In support of this position, it points out that (1) although a representative of the Employer appeared at some of the hearings, no contention was made or evidence introduced on the jurisdictional issue nor was such issue raised by the Employer in its motion to the State Board to reopen the hearing, despite the fact that the Employer alone had exclusive knowledge of the relevant commerce data which was withheld from the State Board; and (2) the petition for advisory opinion was not filed until February 28, 1980, when the Administrative Law Judge had issued his intermediate report and when the underlying unfair labor practice charges would be time-barred by the 6-month limitation of Section 10(b) of the National Labor Relations Act. As the purpose of the instant proceeding is to oust the 1 Citing James Johnston Property Management, 221 NLRB 301 (1975). 2 Citing Elmsford Transportation Corp., 213 NLRB 257 (1974); and Box Tree Restaurant of New York, Ltd. operating as Box Tree Restaurant, 235 NLRB 926 (1978); see also Roman Catholic Archdiocese of Newark, 204 NLRB 159 (1973), where the Board also refused to exercise its jurisdiction. 249 NLRB No. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State Board of jurisdiction, the State Board also argues that Board assertion of jurisdiction would resurrect the "no man's land" which Section 14(c) of the Act was intended to abolish. 6. Although served with a copy of the petition for advisory opinion, the Union has filed no response, as permitted by the Board's Rules and Regulations. On the basis of the above, the Board is of the opinion that: 1. The Employer manages residential and commercial properties in New York City. 2. As noted above, the Employer participated in the unfair labor practice proceedings before the State Board and its administrative law judge, but did not raise therein the issue of jurisdiction, despite its sole and exclusive knowledge of the jurisdictional commerce data. Apparently, its basic reason for filing the instant petition is its dissatisfaction with the State Board's denial of the motion to reopen the hearing and its desire to secure a different forum in which to be heard. We agree with the State Board that its refusal to reopen the hearing has nothing to do with issues of jurisdiction and is not relevant to the petition herein. Accordingly, we do not reach or pass upon the propriety of the State Board's rulings, or upon the Employer's alleged denial of due process, as an advisory opinion is designed primarily for determining whether an employer's operations in commerce meet the Board's discretionary jurisdictional standard. 3 In all the circumstances, and as it appears that the petition essentially raises questions which are not resolvable herein, we conclude, therefore, that no useful purpose would be served by the issuance of an advisory opinion on the issue of commerce jurisdiction with respect to this Employer.4 Accordingly, it is hereby ordered that the petition for advisory opinion herein be, and it hereby is, dismissed. 3 See Allegheny General Hospital, 216 NLRB 1001 (1975); Yale-New Haven Hospital, 214 NLRB 130 (1974). 4 See cases cited in fn. 2, supra. Compare Mandel Management Corporation, 248 NLRB No. 66 (1980), where, despite a similar "forum shopping" contention, the Board, in advising that it would assert jurisdiction over the operations now owned by the employer corporation, noted that it had previously asserted jurisdiction over the same operations when it was owned by the predecessor partnership.