American Lung Association Of Nassau-Suffolk, Inc.,

12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Lung Association of Nassau-Suffolk, Inc., Employer-Petitioner and District Council 1707 AFSCME Union. Case AO-270 August 7, 1989 ADVISORY OPINION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT, HIGGINS, AND DEVANEY Pursuant to Sections 102.98(a) and 102.99 of the National Labor Relations Board Rules and Regula- tions, on June 15 and 28, 1989, the American Lung Association of Nassau-Suffolk, Inc. (the Petitioner) filed a petition and a supporting brief, respectively, requesting an advisory opinion whether the Board would assert jurisdiction over it. In pertinent part, the petition and supporting brief allege as follows: 1. A representation proceeding, Case No. SE- 57188, is currently pending before the New York State Labor Relations Board (SLRB) in which Dis- trict Council 1707 AFSCME (the Union) is seeking to represent certain of the Petitioner's employees. In addition, there are at least two unfair labor prac- tice charges involving the same parties currently pending ' before the Board. These charges, Cases 29-CA-14059 and 29-CA-14134, allege that the Petitioner has committed various violations of Sec- tion 8(a)(3) and (4) of the National Labor Relations Act. The Board's Regional Director has not yet decided whether to issue a complaint on these charges. 2. The Petitioner, an affiliate of the state and na- tional American Lung Associations, is a nonprofit 501(c)(3) corporation, known colloquially as the "Christmas Seal people," which solicits funds, pro- vides services, and sponsors programs in Nassau and Suffolk counties, New York, for the purpose of preventing and controlling lung disease. 3. During the fiscal year ending June 30, 1988, the Petitioner received revenue from all sources in the amount of $966,022. Of this sum, $837,393 was received from the public through individual and local corporate contributions, grants, memorials, bequests and gifts, and special events. The balance of $128,629 was received from investment income, service fees, rental income, and miscellaneous income. During the same fiscal period, the Petition- er's expenses, before depreciation, totaled $1,019,954. Of this sum, $525,975 was spent on sala- ries, professional fees, payroll taxes, and employee benefits; $125,662 for printing and publications; $107,576 for building-occupancy expenses such as mortgage servicing, electricity, office maintenance, heating oil, rubbish removal , and security services; $91,624 for postage and shipping; $62,204 for re- gional fund raising; and $179,222 for remissions to the affiliate state and national organizations, both of which are located within the State. Virtually all the foregoing amounts of revenue and expenses (except for the remissions to the affiliate state and national organizations) were derived or spent in Nassau and Suffolk counties. Although about $7500 was paid to a local vendor for heating oil-which oil was "probably" imported from outside the State-no funds were expended directly outside the State. On July 6, 1989, the Board's Regional Director for Region 29 filed a Motion to Intervene in the in- stant advisory opinion proceeding in order to present certain additional relevant information that was secured during the Region's investigation in the aforementioned pending Section 8(a)(3) and (4) unfair labor practice cases ." The Regional Director asserts that several of the witnesses for the Charg- ing Party-Union in those cases have submitted affi- davits indicating that the Petitioner, contrary to its allegation above, expended over $52,300 in funds directly outside the State during the past fiscal year for such items as books, tapes, videos, brochures, and other supplies. Having duly considered the matter, we hereby grant the Regional Director's motion to intervene and deny the Petitioner's request for an advisory opinion. The Board has a longstanding policy, based on sound principles of administrative efficien- cy and economy, that a petition for an advisory opinion will not be entertained where, as here, a statutory unfair labor practice proceeding is pend- ing and there is no indication that a more expedi- tious jurisdictional determination is urgently needed.2 We find it particularly appropriate to apply this policy to the instant petition . First, as in- dicated above, there appears to be a material factu- al issue regarding whether or to what extent the Petitioner is involved in interstate commerce and whether it would therefore satisfy the Board's stat- utory jurisdictional standard . Such issues could ob- viously best be resolved at a full unfair labor prac- tice hearing where all interested parties would have the opportunity to introduce evidence and to examine and cross-examine witnesses.3 Second, the Board has historically exercised jurisdiction in cases alleging violations of Section 8(a)(4) irrespec- tive of whether the respondent employer in those cases would have satisfied the Board's discretion- ' The Regional Director's motion indicates that there are actually three unfair labor practice cases pending : Cases 29-CA-14059, 29-CA-14134, and 29-CA-14142. a See, e.g, Rrv Realty, 267 NLRB 325 (1983) a Cf Meat Cutters Local 576 (Market Basket Food), 230 NLRB 992 (1977) (dismissing union's petition for an advisory opinion where the em- ployer disputed alleged commerce data) 296 NLRB No. 3 AMERICAN LUNG ASSN. ary jurisdictional standards.4 Thus, even if we were to find in the instant advisory opinion pro- ceeding that the Petitioner did not meet our discre- tionary jurisdictional standards, given that at least one of the pending unfair labor practice cases before the Board contains 8(a)(4) allegations, we * See, e.g., Nutmeg Coal Co., 224 NLRB 1098 (1976) 13 might nevertheless ultimately decide to exercise ju- risdiction over the Petitioner in those cases. To issue an advisory opinion on the jurisdictional issue now without reference to those cases might there- fore simply sow confusion. Accordingly, it is ordered that, for the reasons set forth above, the petition for an advisory opin- ion is dismissed.