Elias Mallouk Realty Corp.

32B-325, AFL- 15, 32B-325, (1) 114 $500,000 ' SEE-52943-1360 SEE- 52944-711 Brlghtwaters SEE-52945- 5lst SEE-52946-101 SEE-52948-8831 SEE-52949-70 SEE-52951-2044 minimis (1) $500,000 10 facilities.= 29-CA- 8042, 29-CA-8042-1, Edwirl (1) $500,000 $50,000 no 29-RC-5122: 29-RC-5123; 29-RC-5124; Hamillon 29-RC-5125; 101 29-RC-5127; 51st 29-RC-5128: 29-RC-5131. 1 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elias Mallouk Realty Corp. and Local Service Employees International Union, CIO and New York State Independent Union of Building Service Employees and Factory Work- ers, Local 2, N.F.I.U. Case AO-226 October 1980 ADVISORY OPINION A petition was filed on August 18, 1980, by Local Service Employees International Union, AFL-CIO, herein called the Petitioner, pursuant to Sections 102.98 and 102.99 of the Na- tional Labor Relations Board Rules and Regula- tions, Series 8, as amended, seeking an advisory opinion regarding Board jurisdiction. On Septem- ber 8, 1980, Elias Mallouk Realty Corp., herein called the Employer, entered an appearance herein and filed an answer denying allegations of the peti- tion and setting forth affirmative defenses thereto. Thereafter, on September 23, 1980, the Regional Director for the Board's Region 29 filed a Motion To Intervene, with exhibits attached. Such motion is hereby granted. In pertinent part the petition, the Employer's answer, and the Regional Director's motion allege as follows: 1. Currently pending before the New York State Labor Relations Board, herein called the State Board, are nine representation petitions filed by the Employer on or about July 7, 1980, asserting that one or more labor organizations, including the Pe- titioner and New York State Independent Union of Building Service Employees and Factory Workers, Local 2, N.F.I.U., herein called Local 2, have claimed recognition as representaties of the Em- ployer's employees at nine business locations in Brooklyn, New York.' The Petitioner has inter- vened in all nine proceedings. 2. Based on information and belief, the Petitioner alleges that the Employer, a New York corpo- ration, with its principal place of business located at Seventh Avenue, Garden City, New York, is engaged in the business of operating and manag- ing residential apartment houses in various loca- tions in the city of New York and in Long Island, including the nine Brooklyn locations involved in the State Board proceedings; (2) during the past 12 months, the gross Employer revenues derived in excess from the collection of of Case 48th Street, Brooklyn, New York; Case Court. Brooklyn, New York; Case 1320 Street. Brooklyn. New York; Case Ocean Parkway. Brooklyn. New York; Case SEE-52947-2301 Kings Highway, Brooklyn. New York; Case Fort Hamilton Parkway. Brooklyn, New York; Case Dahill Road. Brooklyn, New York, Case SEE-52950-3101-3115 Avenue I, Brooklyn. New York; and Case East 13th Street. Brooklyn, New York. 253 NLRB No. rents for the apartments in the nine Brooklyn build- ings; and (3) during the same period, the Employer purchased heating oil and other goods and materi- als of more than de nature from local New York firms which, in turn, purchased said goods in interstate commerce directly from outside the State of New York. 3. In its answer to the petition the Employer denies the commerce allegation of the petition and affirmatively asserts that it is not the owner or managing agent of any of the nine Brooklyn build- ings; (2) it did not derive in excess of gross revenues from rent collections in each of the nine buildings; and (3) it did not purchase oil or other goods and materials from local firms which, in turn, purchased said goods in interstate com- merce directly from out-of-state firms. 4. There are pending in the Board's Region 29 representation petitions filed on August 29, 1980, by Local 2, seeking to repesent the Employer's service and maintenance employees at of the Employer's Brooklyn, New York, Proc- essing of these petitions was blocked by the Re- gional Director's issuance on August 22, 1980, of a consolidated unfair labor practice complaint against the Employer based on charges in Cases and 29-CA-8042-2 filed by an individual, Weise. 5. During the course of his investigation of the above unfair labor practice charges, counsel for the Employer stipulated, for that proceeding only, that the Employer, a New York corporation, owns an apartment house located at 2301 Kings High- way, Brooklyn, New York; and (2) during the past year, he believes that the Employer had gross rev- enues in excess of from rentals of its apartments and that it purchased products, goods, and materials valued in excess of from local New York enterprises, each of which, it be- lieves, received said products, goods, and materials directly from outside the State of New York. In its answer to the complaint, the Employer denies that it is engaged in commerce. 6. The State Board made finding concerning the above commerce data. 7. Although the State Board was served with a copy of the petition for advisory opinion, it filed 2044 East 13th Street. Brooklyn, New York. Case Dahill Road. Brooklyn, New York. Case 3101-3115 Avenue I,Brooklyn, New York, Case 8831 Fort Parkway. Brooklyn. New York. Case 2301 Kings Highway. Brooklyn. New York. Case 29-RC-5126; Ocean Parkway. Brooklyn. New York, Case 1320 Street. Brooklyn. New York, Case 71 Brightwaters Court. Brooklyn. New York. Case 29-RC-5129: 1360 48th Street, Brooklyn. New York, Case 29-RC-5130; and 8300 Fourth Avenue. Brooklyn. New York. Case Except for the last location, all of the remaining locations are the same as those involved in the State Board proceedings. 70 ELIAS and blo ~ c c o r d i n ~ l ~ , Educariva G. Mend= Inc.. (1980); d Resraumnt Employres d Bartendem h a 1 Hotel & Resraumnr Emplops & Barrenden Intemationol, AFL-C/O Sprinm Hotel Corpmtionl. 1 Inlemarional Bureau Pmr~lion & In*cs~@goriar L d . 236 1336 MALLOUK REALTY CORP. no response thereto as permitted by the Board's Rules Regulations. On the basis of the foregoing, the Board is of the opinion that: 1. The Employer has denied the commerce data allegations of the petition and the commerce allega- tions of the complaint pending in the Region. Be- cause these denials appear to be in variance with the commerce data stipulated by the Employer's counsel in the unfair labor practice proceeding-a stipulation based on the belief of the Employer's counsel-we consider the record inadequate for us to make a meaningful determination in this pro- ceeding whether the Employer meets our jurisdic- tional standards. In any event, we would not make such a determination in an advisory opinion since there is pending before the Board a statutory unfair labor practice proceeding which has advanced to a formal stage where a binding adjudication of the jurisdictional issue can be obtained from the Board. other considerations suggesting an urgent need for earlier Board determination of the jurisdictional question alone have been brought to our attention. The underlying purpose of the advisory opinion procedures is best served, and unnecessary duplica- tion and possible confusion can be avoided, if the Board follows the practice of leaving determination of the issue raised for disposition in the statutory proceeding now pending. it is hereby ordered that the peti- tion for advisory opinion be, and it hereby is, dis- missed. Fundacion Ana 249 NLRB 1022. fn. 3 Hotel Union. 49. (Diamond 236 NLRB 71 (1978); for NLRB (1978).