Walanae Coast Day Care Centers

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waianae Coast Day Care Centers, Inc. and United Public Workers, Local 646, AFSCME, AFL-CIO. Case AO-201 October 31, 1977 ADVISORY OPINION BY CHAIRMAN FANNING AND MEMBERS JENKINS, PENELLO, AND MURPHY On August 29, 1977, Waianae Coast Day Care Centers, Inc., herein called the Employer, filed a petition, with exhibits, for an advisory opinion, in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended, seeking to determine whether the Board would assert jurisdiction over the Employer. United Public Workers, Local 646, AFSCME, AFL-CIO, herein called the Union, filed a response thereto. In pertinent part, the petition and exhibits and the response allege as follows: 1. There is pending before the Hawaii Employ- ment Relations Board, herein called the State Board, a complaint, docket number HERB 76-12, filed by the Union, alleging that the Employer has refused, and continues to date to refuse, to bargain with the Union, which has been certified by the State Board since 1975 as the representative of the Employer's employees. 2. By its petition and exhibits, the Employer asserts that it is a Hawaii nonprofit corporation engaged in providing day care services to the State of Hawaii, Department of Social Services and Housing. Pursuant to a written contract, with the State of Hawaii, effective July 1, 1977, through June 30, 1978, the Employer generates income in the amount of $308,690,2 to which a service charge of $24,695 is added, producing a total contract amount of $333,385. Of this latter figure, $250,039, or 75 percent, is directly funded by moneys from the Federal Government pursuant to Title XX of the Social Security Act. The Employer will also receive, As an exhibit the Employer has submitted a copy of a contract entered into between the Employer and the State of Hawaii, Department of Social Services and Housing, effective July 1, 1977, through June 30, 1978. 2 Net project cost under contract. 3 Pennsylvania Labor Relations Board (George Junior Republic), 215 during the contract year, $35,280 from the United States Department of Agriculture to fund food service operations of the Employer's day care center. The Employer does not allege that its operations affect interstate commerce. 3. The Union denies the commerce data, and the State Board has made no findings with respect thereto. 4. There is no representation or unfair labor practice proceeding involving the same labor dispute pending before this Board. 5. Although served with a copy of the petition for Advisory Opinion, no response, as provided by the Board's Rules and Regulations, has been filed by the State Board. On the basis of the foregoing, the Board is of the opinion that: 1. The Employer is a nonprofit corporation engaged in providing day care services to the State of Hawaii, Department of Social Services and Housing. The Board's advisory opinion proceedings are designed primarily to determine questions ofjurisdic- tion by application of the Board's discretionary standards to the "commerce" operations of an employer. 3 The entire submission by the Employer reflects that, pursuant to a contract with the State of Hawaii, the Federal Government directly funds 75 percent thereof. In its response to the Employer's petition for advisory opinion, the Union asserts, in substance, that the issue raised herein is whether the Employer is subject to such state and Federal control so as to preclude the assertion of jurisdiction under Section 2(2) of the Act. Thus, the basic issue presented herein is whether the Employer is an "employer" within the meaning of Section 2(2) of the Act. As this issue does not fall within the intendment of the Board's advisory opinion rules,4 we shall dismiss the petition herein. Accordingly, it is hereby ordered that, for the reasons set forth above, the petition for an advisory opinion herein be, and it hereby is, dismissed. NLRB 323 (1974); Globe Security Systems. Inc., 209 NLRB 35 (1974); Robert C Coleman, et al., 180 NLRB 529 (1969); International Air Service, Inc. ofSan Juan, Puerto Rico, 165 NLRB 584 (1967). 4 Ibid 233 NLRB No. 30 138