Rent Stabilization Association

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rent Stabilization Association of NYC, Inc. and Office & Professional Employees International Union, Local 153, AFL-CIO and New York State Labor Relations Board. Case AO-232 June 1, 1981 ADVISORY OPINION A petition and memorandum in support thereof were filed on March 19 and April 6, 1981, respec- tively, by Rent Stabilization Association of NYC, Inc., 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, seek- ing to determine whether the Board would assert jurisdiction over the Employer's operations on the basis of its current jurisdictional standards. On April 6, 1981, the New York State Labor Relations Board, herein called the State Board, filed an oppo- sition urging the Board to decline jurisdiction herein. Thereafter, on April 27, 1981, the Employ- er filed a response to the State Board's letter urging that the Board reject the letter as untimely because of late service on the Employer and alter- natively submitting an additional response to the State Board's substantive arguments. The Employ- er's motion to reject the State Board's letter as un- timely is denied. In pertinent part, the petition, memorandum, and opposition allege as follows: 1. There is pending before the State Board a rep- resentation petition, Case SE-53592, filed by Office & Professional Employees International Union, Local 153, AFL-CIO, herein called the Union, seeking to be certified as the collective-bargaining representative of the Employer's secretaries, book- keepers, and computer section employees.' 2. The Employer, a private, not-for-profit mem- bership corporation, is a real estate industry associ- ation consisting of dues-paying members who own rent-stabilized apartment buildings in New York City.2 It provides various services to its members and the public. Informational and counseling serv- ices are provided to tenants who have questions or problems, seminars are given to owners of rent-sta- bilized buildings, and bulletins and publications are distributed to the public and its members. During 1980, a representative year, the Employer's gross revenues which are derived entirely from member- ship dues were in excess of $4 million, while the value of goods and services furnished directly to it i On February 9, 1981, the State Board certified the Union as the rep- resentative of the Employer's receptionists, mailroom employees, intervenors/interviewers, and membership counselors in Case SE-53043 2 The Employer has 20,000 members who own 900,000 apartments in 43,000 buildings. 256 NLRB No. 38 from outside the State of New York exceeded $200,000. 3. The thrust of the State Board's opposition to the Board's assumption of jurisdiction herein is that the Employer is not engaged in commercial activi- ty within the meaning of the National Labor Rela- tions Act. It points out that the Employer neither operates nor manages real estate and that it was or- ganized pursuant to the Rent Stabilization Law to provide rent regulation within the city of New York. The statute enables all interested landlords to provide voluntary self-regulation, by the promulga- tion of city-approved rules and regulations, guard- ing against excessive rent increases. The Employer also funds a conciliation and appeals board, a sepa- rate and distinct quasi-judicial agency whose mem- bers are appointed by the mayor of the city of New York and which resolves disputes over claims of hardship in rent increases. 3 4. The Union neither admits nor denies the afore- said commerce data and the State Board has not made any findings with respect thereto. The State Board has advised that it has not agreed to hold its proceedings in abeyance pending a Board decision on the jurisdictional issue herein. 5. There is no representation or unfair labor practice proceeding involving the same labor dis- pute pending before this Board. 6. Although served with a copy of the petition herein, the Union has not filed a response as per- mitted by the Board's Rules and Regulations. On the basis of the foregoing, the Board con- cludes that: 1. The Employer is a not-for-profit real estate in- dustry association which does not operate or manage real estate, but does supply various serv- ices to the public and to its thousands of members who own rent stabilized apartment buildings in the city of New York. Its annual gross revenue of more than $4 million not only meets the Board's $500,000 discretionary standard for assertion of ju- risdiction over residential real estate,4 but also ex- ceeds the Board's maximum monetary standard of $1 million for assertion of jurisdiction. 5 In addition, the more than $200,000 annual interstate inflow of goods and services furnished the Employer directly from outside the State of New York establishes the Board's legal jurisdiction. Thus, the Employer's op- erations are sufficient to meet any of the Board's 3 The State Board asserts that this quasi-judicial board was found to be a political subdivision within the meaning of Sec. 2(2) of the Act and exempt from Board jurisdiction. (New York City Conciliation and Appeals Board and Local 8 of B. , Case 2 RC-18368 ) 4Karl Gerber. Max l7etle, Nathan Metz & Estate of Bernard Katz. Co- Partners d/b/a Parkview Gardens, 166 NLRB 697 (1967), and James John- ston Property Management, 221 NLRB 301 (1975). 5 See, e.g., Board Rules and Regulations. Sees. 103 1 and 103.2. RENT STABILIZATION ASSOCIATION 257 self-imposed jurisdictional standards. However, the State Board argues that the Employer is not en- gaged in commercial activity. We do not agree. To the extent that the Employer is rendering services to its member-owners of rent-stabilized apartment buildings, it is an adjunct to, and a part of, the real estate industry whose operations were found, in Parkview, supra, to have a substantial impact on commerce. As such, its services must be considered as principally promoting and advancing commer- cial activities in the real estate industry of New York City, thereby warranting the assertion of ju- risdiction over the Employer.6 Accordingly, the parties are advised, under Sec- tion 102.103 of the Board's Rules and Regulations, 6 See Middle Department Association of Fire Underwriters 122 NLRB 1155 (1959); The New York Board of Fire Underwriters, 193 NLRB 551 (1971); Legal Services for Northwestern Pennsylvania, 230 NLRB 688 (1977); American Arbitration Association Inc.. 225 NLRB 291 (1976); and Wurster Bernardi d Emmons, Inc., 192 NLRB 1049 (1971). See also Montgomery County Opportunity Board, Inc., 249 NLRB 880 (1980); and Mexican American Unity Council, Inc., 207 NLRB 800 (1973). Series 8, as amended, that, based on the allegations made herein, the Board would assert jurisdiction over the operations of the Employer with respect to labor disputes cognizable under Sections 8, 9, and 10 of the Act. CHAIRMAN FANNING, dissenting: I would dismiss the petition for advisory opinion herein as I believe it goes beyond the intendment of that procedure. The basic purpose of advisory opinions is to advise parties officially whether or not an employer comes within our discretionary ju- risdictional standards. Pennsylvania Labor Relations Board (George Junior Republic), 215 NLRB 323 (1974). The issue here is whether or not the em- ployer is engaged in commercial activities, a con- siderably broader question, and one I am not in- clined to answer in its present posture. See, e.g., Leisure Village Association, Inc., 236 NLRB 102 (1978).