The New York Board of Fire Underwriters

N.Y. BOARD OF FIRE UNDERWRITERS 551 The New York Board of Fire Underwriters and Uniformed Fire Patrol Officer Association of Greater New York, Local 1-14, IAFF,AFL-CIO. Case AO-136 October 6, 1971 ADVISORY OPINION BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY The petition herein was filed July 30, 1971, by Uniformed Fire Patrol Officer Association of Greater New York, Local 1-14, IAFF, AFL-CIO, herein called the Union, pursuant to Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. Thereafter, The New York Board of Fire Underwriters, herein called the Employer, filed on August 16, 1971,' a Response to Petition for Advisory Opinion and Motion to Dismiss Same and a Cross-Petition for Advisory Opinion.2 On August 27, 1971, the Union filed a response to Employer's cross-petition. In pertinent part, the petitions and responses3 allege that: 1. There is pending before the New York State Labor Relations Board, herein called the State Board, a petition for investigation and certification of representatives, Case No. SE-44727, filed by the Union which is seeking to represent for purposes of collective bargaining the captains, lieutenants, and sergeants of the Employer's Fire Patrol. 2. The Employer is a nonprofit New York State corporation engaged in fire prevention through electrical inspections and in salvage operations which are brought about due to fires in the State of New York. The Employer is composed of over 100 member insurance companies doing business throughout the country as well as in New York City. Among these insurers are the Aetna Insurance Company, the Insurance Company of North America, and the Travelers Indemnity Company. 3. The Employer's income, in excess of $3 million in 1970, was derived from two main sources: more than $1,200,000 from assessments from member companies for services rendered for them by the Employer's Fire Patrol and nearly $2 million in inspection fees primarily from services performed by the electrical department for New York State counties and municipalities and for companies over whom we i The Executive Secretary, by telegraphic order, extended the time for filing the response to August 16, 1971 2 In its motion to dismiss , the Employer argues that the Union's petition is defective in that it asks "that this Board issue an advisory opinion that the NLRB will not assert jurisdiction " rather than an advisory opinion on whether it would assert jurisdiction, in accord with Section 102 98(a) of the Board's Rules and Regulations However, as the Employer has filed a cross-petition for an advisory opinion stating that the Board would assert would assert jurisdiction. For example, the Employer renders electrical inspection services for Stirling Homex Corp., the nation's largest modular home builder. Last year Stirling built 1,400 dwelling units at its Avon, New York, facility and it intends to build a new plant at Gulfport, Mississippi, which will triple its capacity. The average home sold for $12,000, exclu- sive of land and transportation. For the first 7 months of 1971, the Employer received $35,000 for inspection services rendered this company, and, if the figure were projected on an annual basis, the yearly figure would be $60,000. In addition, during the preceding year, the Employer purchased approximately $125,000 worth of automotive equipment and other merchandise directly or indirectly from outside the State of New York. 4. The Union's petition alleges generally that, because the Employer is a nonprofit corporation, its operations do not affect interstate commerce at all and that "the activities of the Employer do not meet any of the yardsticks of jurisdiction of NLRB as the entire activity of the Fire Patrol is confined solely to New York City and is fully supported by a percentage of premiums written only within New York City." On the other hand, the Employer argues that its opera- tions affect interstate commerce and meet the Board's jurisdictional standards and that the Board has rejected the contention that it should decline to assert jurisdiction because an employer is a nonprofit enterprise. 5. The State Board has made no findings with respect to the aforesaid commerce data but has held the proceeding before it in abeyance pending applica- tion to the Board for an Advisory Opinion. 6. There is no representation or unfair labor practice proceeding involving the same labor dispute pending before the National Labor Relations Board.4 On the basis of the foregoing, the Board is of the opinion that: 1. The Employer, a nonprofit New York State corporation, is a nonretail enterprise engaged in fire prevention through electrical inspections and in fire salvage operations in the State of New York. 2. The current standard for the assertion of jurisdiction over nonretail enterprises is an annual outflow or inflow, direct or indirect, across state lines of at least $50,000. (Siemons Mailing Service, 122 NLRB 81, 85.) It is reasonable to assume, for purposes of this advisory opinion, that Stirling Homex jurisdiction, and as for purposes of this advisory opinion we are treating the two petitions as one, the wording of the Union's petition is immaterial and we hereby deny the Employer's motion to dismiss 3 In view of our determination herein, the Employer's Motion for Permission to File Memorandum of Law is denied 4 On May 11, 1970, the Regional Director dismissed an unfair labor practice charge against the Employer in Case 2-CA-12053 The Union herein was not involved in that proceeding 193 NLRB No. 82 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corp. meets our nonretail jurisdictional test and that, therefore, the services rendered to this company by the Employer constitute indirect outflow. As project- ed for calendar 1971, the value of such services is sufficient to meet the Siemons test. In addition, the Employer's 1970 purchases of approximately $125,000 worth of automotive equipment and other merchandise originating outside the State of New York constitute direct and indirect inflow and are sufficient to meet the Siemons test. 3. The Union's contention that the Employer is a nonprofit organization whose operations are noncom- mercial in nature and therefore do not affect interstate commerce is without merit. The Employer is engaged in rendering fire inspection services as an important part of the insurance business and the Board has found such activities to be commercial in nature in Middle Department Association of Fire Underwriters, 122 NLRB 1115 (1959). In that case, where the operations of the employer were similar to those of the Employer herein, we stated that "it is immaterial that an employer is a nonprofit corpora- tion motivated by considerations not strictly commer- cial where the activities themselves are commercial in nature. Accordingly, we find no basis for concluding that the Employer is the type of nonprofit corporation over which the Board has declined to assert jurisdic- tion." Accordingly, the parties are advised, under Section 102.103 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, that, under the allegations submitted herein, the Board would assert jurisdiction over the operations of the Employer with respect to disputes cognizable under Sections 8, 9, and 10 of the Act.