Broome-Tioga Chapter of the New York State Assn.

BROOME-TIOGA CHAPTER OF THE NEW YORK STATE ASSN. 459 Broome-Tioga Chapter of the New York State Association for Retarded Children, Inc. and Team- sters Local 693, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case AO-192 May 5, 1977 ADVISORY OPINION A petition and brief were filed on November 29 and December 9, 1976, respectively, by Broome- Tioga Chapter of the New York State Association for Retarded Children, Inc., herein called the Employer, for an Advisory Opinion, in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, seeking to determine whether the Board would assert jurisdiction over the Employer on the basis of its current standards. In pertinent part, the petition and brief allege as follows: 1. There is pending before the New York State Labor Relations Board, herein called the State Board, a representation proceeding, docket number CR-1753, filed by Teamsters Local 693, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, seeking to be certified as the representative of certain employees of the Empbyer herein. 2. The Employer is a not-for-profit corporation organized and existing under the laws of the State of New York. The general nature of the Employer's business is the education and rehabilitation of mentally retarded persons. During the calendar year 1975, the Employer's income was $5 18,724, of which the State of New York provided a substantial portion. The remainder of the Employer's income was provided primarily by Broome County, Tioga County, United Way of Broome County, Inc., and from sales and subcontracts of the Employer. There is no allegation that these funds derive from Federal revenue sharing programs nor is there an allegation as to the extent, if any, to which the Employer makes direct or indirect purchases from outside the State of New York or makes sales or renders services directly or indirectly outside of New York State, or is otherwise affected by activities having a significant impact on interstate commerce. ' CJ Easr Oakland Community Health Alliance, Inc., 218 NLRB 1290 (!975); Bewr!v Foundation, Inc., 2!9 NLR!? !3'5 :!975)1 4,-0 ,f Guiding Hands, 2 18 NLRB 1277 (1975). 3. The petition alleges that the Union has admitted the aforesaid commerce data and that 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 the parties have been 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 any of them. On the basis of the above, the Board is of the opinion that: 1. The Employer is a not-for-profit corporation whose general nature of business is the education and rehabilitation of mentally retarded persons. 2. Although the submission by the Employer alleges that during the calendar year 1975 actual income amounted to in excess of $500,000, of which the State of New York provided a substantial portion, no evidence-such as direct or indirect out- of-state purchases, sales, or services by the Employer or participation in Federal revenue sharing pro- grams-has been submitted in this proceeding to show that its operations affect commerce and would be subject to the Board's legal or statutory jurisdic- tion.1 In these circumstances, the Board is unable to make a meaningful determination as to whether or not statutory jurisdiction exists over the operations of the Employer herein.* Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations that, on the allegations submitted herein, the Board is unable to conclude whether or not it would assert jurisdiction over the operations of the Employer herein. MEMBER MURPHY, concurring: I agree with my colleagues that this petition for an advisory opinion should be dismissed. However, I find this dismissal appropriate because a question exists here as to whether jurisdiction should be rejected on the ground that the Employer is a charitable organization over whom this Board should, in the exercise of its discretion, not assert its jurisdiction, and such matters are not properly determinable in this proceeding. See my dissenting opinion in Valley United Health Services, Inc., 227 NLRB 728 (1977). 2 Oak Haven Nursing Home, Inc. and Spruce Haven Nursing Home, Inc., !69 NLRS 28': ("W). 229 NLRB No. 60