Decoster Egg Farms

350 325 NLRB No. 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 Compare Secs. 9(c)(1) and 10(b) of the National Labor Relations Act, which provide for the conduct of hearings in representation and unfair labor practice proceedings, respectively. We have been admin- istratively advised that there are no representation or unfair labor practice proceedings involving these parties currently pending before the NLRB. 3 For cases where the Board has issued an Advisory Opinion based on facts which were either undisputed or previously determined by the state agency, or court. See Correctional Medical Systems, 299 NLRB 654 (1990); University of Vermont, 297 NLRB 291 (1989); and St. Paul Ramsey Medical Center, 291 NLRB 755 (1988). Austin J. DeCoster, d/b/a DeCoster Egg Farms, L&L Cleaning, Inc., Maine Contract Farming, Northern Transportation, LLC, PFS Loading, Inc., and Turner Maintenance and Services, Inc. and United Paperworkers International Union and Maine Labor Relations Board, Peti- tioner. Case AO–347 February 4, 1998 ORDER DENYING PETITION FOR ADVISORY OPINION BY MEMBERS LIEBMAN, HURTGEN, AND BRAME Pursuant to Sections 102.98 and 102.99 of the Board’s Rules and Regulations, on December 29, 1997, the Maine Labor Relations Board (MLRB) filed a petition for an Advisory Opinion as to whether the Board would decline to assert jurisdiction over Austin J. DeCoster, d/b/a DeCoster Egg Farms, L&L Clean- ing, Inc., Maine Contract Farming, Northern Transpor- tation, LLC, PFS Loading, Inc., and Turner Mainte- nance and Services, Inc. (the Employers), on the ground that their employees are ‘‘agricultural labor- ers’’ within the meaning of Section 2(3) of the Na- tional Labor Relations Act. In pertinent part, the peti- tion alleges as follows: 1. A proceeding (Docket No. 98–7) is currently pending before the MLRB in which the United Paper- workers International Union (the Union) has charged the Employers, as an alleged single-integrated enter- prise, with engaging in certain prohibited practices under the Maine Agricultural Employees Labor Rela- tions Act, 26 M.R.S.A. ch. 16. Several of the Employ- ers, L&L Cleaning, Inc., Northern Transportation, LLC, and Turner Maintenance and Services, Inc., have interposed as defenses in that proceeding that the com- plaint is preempted by the National Labor Relations Act and that the MLRB is without jurisdiction. 2. The general nature of the Employers’ business is as follows: Austin J. DeCoster d/b/a DeCoster Egg Farms owns all the land and buildings that formerly constituted the premises of DeCoster Egg Farms. L&L Cleaning, Inc. engages in the business of industrial cleaning. Maine Contract Farming operates the hen houses, hatchery, feed mill, and the sanitation depart- ment of the former DeCoster Egg Farms. Northern Transportation, LLC engages in the business of trans- portation and trucking services. Turner Maintenance and Services, Inc. engages in the business of vehicle repair and maintenance and property upkeep. The MLRB has no information concerning the nature of the business conducted by PFS Loading, Inc. In its petition, the MLRB states that it has no evi- dence concerning the commerce operations of the sev- eral Employers and has not made any findings in the proceeding. Due to the number of employers involved and the nature of their alleged business relationships, the MLRB requests that the Board conduct an evi- dentiary proceeding to determine whether any of the employees at issue are exempt from the Board’s juris- diction as agricultural employees. The MLRB asserts that a hearing would help clarify the business relation- ships among the various employers and identify the ac- tual employer or employers of the employees. The MLRB asserts that the record developed through such a proceeding could also be used by the MLRB in mak- ing its own jurisdictional determination, if any of the employees at issue are determined to be agricultural employees by the Board, thereby avoiding duplication of effort by the parties. On January 13, 1998, Austin J. DeCoster d/b/a DeCoster Egg Farms filed a response to the MLRB’s petition. Having duly considered the matter,1 we deny the MLRB’s petition for an Advisory Opinion. The Board’s Advisory Opinion proceedings are not de- signed to resolve disputed issues of fact. Brooklyn Bu- reau of Community Service, 320 NLRB 1148 fn. 2 (1996).2 Thus, Section 101.39 of the Board’s Rules and Regulations, as amended 61 FR 65189 (Dec. 11, 1996), specifically provides that a petition for Advi- sory Opinion may only be filed if the relevant facts are undisputed or the agency or court has already made the relevant factual findings. See also Section 102.99 of the Board’s Rules (providing that the petition shall al- lege the findings of the agency or court or, in the ab- sence of findings, a statement of the evidence relating to the jurisdictional question).3 Here, as indicated above, the MLRB asserts that it has not received any evidence or made any factual findings regarding the jurisdictional issue. Further, the response filed by Austin J. DeCoster d/b/a DeCoster Egg Farms also does not set forth any facts and, more- over, denies various factual allegations made by the Union in the state proceeding regarding the relation- ship between the Employers. Thus, it is clear that the petition fails to satisfy the requirements of the Board’s Rules, and must be dismissed. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00350 Fmt 0610 Sfmt 0610 D:\NLRB\325.039 APPS10 PsN: APPS10