Aid for the Retarded, Inc.

678 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Aid for the Retarded, Inc. and District 1199, New England Health Care Employees Union. Case AO-233 June 18, 1981 ADVISORY OPINION A petition was filed on May 4, 1981, by Aid for the Retarded, Inc., herein called the Employer, 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 that the Board would assert jurisdiction over the Employer. In pertinent part, the petition and its transmittal letter allege as follows: 1. On March 6, 1980, District 1199, New Eng- land Health Care Employees Union, herein called the Union, filed with the Connecticut State Board of Labor Relations, herein called the State Board, a petition in Case No. E-5684, seeking to represent certain employees of the Employer, including su- pervisors as defined in Section 2(11) of the Nation- al Labor Relations Act. On March 16, 1981, the State Board certified the Union as exclusive bar- gaining representative of the employees of the Em- ployer, including supervisors, although the Em- ployer had consistently maintained before the State Board that such unit would be inappropriate.' The Employer asserts that the State Board proceedings have not been closed. 2. The Employer is a private, nonprofit Con- necticut corporation engaged at Stamford, Con- necticut, in providing rehabilitation, training, and educational services to mentally retarded children, adults, and their families. It performs these services through a sheltered workshop program, and through group home and preschool educational programs. During the calendar year 1980, the Em- ployer received revenues totaling $675,210 includ- ing $400,000 in state and municipal grants and con- tributions. During that same period, the Employer provided services valued in excess of $140,000 to corporations directly engaged in interstate com- merce and purchased supplies, foodstuffs, and other goods valued in excess of $50,000 directly and indi- rectly from suppliers located outside the State of Connecticut. 3. The Employer asserts that certification of the Union as exclusive bargaining representative of a unit of employees, including supervisors, is prohib- ited by Connecticut State law "where an employer is within the jurisdiction of the National [Labor t At the same time, the State Board found that the Employer had not committed the unfair labor practices under the Connecticut State Labor Relations Act as alleged in the charges filed by the Union on March 20, 1980. 256 NLRB No. 106 Relations] Board." 2 Because it has a continuing duty under the State Board certification to meet and bargain with the Union unless the certification is a nullity, the Employer has filed the instant peti- tion to have the Board advise that the Employer is within the jurisdiction of the Board. 4. The Employer is unable to attest that the Union admits or denies the aforesaid commerce facts, although it states that the State Board has made no findings with respect thereto. 5. Although served with a copy of the petition for advisory opinion, neither the Union nor the State Board has filed a response thereto as permit- ted by the Board's Rules and Regulations. On the basis of the above, the Board concludes that: 1. The Employer is a private, nonprofit Con- necticut corporation engaged at Stamford, Con- necticut, in providing rehabilitation, training, and educational services to mentally retarded children, adults, and their families. 2. The current standard for the assertion of juris- diction over specialized institutions such as day care centers, which come within the Board's legal jurisdiction and which perform specialized services involving the care and custody of children, is a gross annual revenue of $250,000.3 As indicated above, the Employer's annual revenue during cal- endar year 1980 exceeded $675,000 and, therefore, meets the aforesaid discretionary monetary stand- ard. The more than $140,000 services rendered to corporations directly engaged in interstate com- merce and the more than $50,000 purchases of sup- plies directly and indirectly from out-of-state sup- pliers establish the Board's legal jurisdiction. We do not reach or pass upon the Employer's contention that the State Board's certification of the Union in a bargaining unit, including supervi- sors, is prohibited by Connecticut law where the employer comes within the Board's jurisdiction, as an advisory opinion is primarily for determining whether an employer's operations in commerce meet the Board's discretionary jurisdictional stand- 2 The Employer cites Sec 31-101 (7) of the general statutes of the State of Connecticut which defines the term "Employer" as: Any person acting directly or indirectly in the interest of an employ- er in relation to an employee, but shall not include any person . subject to the provisions of the National Labor Relations Act, unless the National Labor Relations Board has declined to assert jurisdic- tion over such person .. . 3 Salt & Pepper Nursery School & Kindergarten No. 2, 222 NLRB 1295 (1976); The Rhode Island Catholic Orphan Asylum a/k/a St. Aloysuis Home, 224 NLRB 1344 (1976); The Kent County Association for Retarded Citizens d/b/a J. Arthur Trudeau Center, 227 NLRB 1439 (1977); United Services for the Handicapped, 239 NLRB 976 (1978); Beverly Farm Foun- dation. Incorporated, 218 NLRB 1275 (1975). AID FOR THE RETARDED. INC 679 ards. 4 The State Board's unit determination and certification of the Union in the unit are substantive matters, not resolvable in this proceeding. 4 See Sec. 101.40(3) of the Board's Statements of Procedure, Series 8. as amended; Yale New-Haven lospiral 214 NLRB 130 (1974), Allegheny General fHospital, 216 NLRB 1001 (1975) Accordingly, the parties are advised that, under Section 102.103 of the Board's Rules and Regula- tions, on the allegations presented herein, the Board would assert jurisdiction over the Employ- er's operations with respect to labor disputes cogni- zable under Sections 8, 9, and 10 of the Act.