Hebrew Free Burial Association, Inc.

678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hebrew Free Burial Association, Inc. and Cemetery Workers and Greens Attendants Union, Local 365, S.E.I.U., AFL-CIO. Case A0-279 August 31, 1990 ADVISORY OPINION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT, DEVANEY, AND OVIATT On July 20, 1990, Hebrew Free Burial Associa- tion, Inc , the Petitioner, filed a petition for an ad- visory opinion with the Board, pursuant to Section 102 98 et seq of the Board's Rules and Regula- tions, to determine if the Board would assert juns- diction.over In pertinent part, the petition alleges as follows 1 There is currently pending before the New York State Labor Relations Board (the SLRB) an unfair labor practice charge filed by Cemetery Workers and Greens Attendants Union, Local 365, SEIU, AFL-CIO (the Union) alleging that the Petitioner refused to bargain in good faith during collective-bargaining negotiations by failing to make a counteroffer to the Union's last bargaining proposal 2 The Petitioner is a not-for-profit charitable or- ganization engaged in providing burial services for Jewish indigents, homeless, and individuals without surviving family members The Petitioner owns two cemeteries in Staten Island, New York, and cemetery plots at other Jewish cemeteries in New York and New Jersey, where the burial services are arranged 3 During 1989, the Petitioner's gross annual rev- enues were $518,619 In 1990, the Petitioner pur- chased goods and matenals from outside the State of New York, such as caskets manufactured in Tennessee, valued m excess of $15,000 4 The Union does not challenge the Petitioner's 1989 gross annual revenue data, and the SLRB has made no findings with respect thereto 5 There is no representation or unfair labor practice proceeding involving the same labor dis- pute currently pending before the Board On July 30, 1990, the Union filed a statement of position opposing the petition, 1 contending that the 'On August 10, 1990, the Union filed a supplemental statement with the Board which basically reiterates its position On August 16, 1990, the Petitioner filed a response to the Union's supplemental statement reiterat- Petitioner does not meet the Board's $500,000 dis- cretionary jurisdictional standard because certain amounts listed as revenue by the Petitioner in its 1989 financial statement—$156,120 in contributions and $45,947 in insurance reimbursement—appear to be of a nonrecurring nature and should not be con- sidered by the Board in determining whether the Petitioner satisfies its jurisdictional standards The Union further contends that the Petitioner should be required to furnish the Board with a profit-and- loss statement for the first 6 months of 1990 so that it can ascertain whether the Petitioner's financial activity for 1989 was a one-time event Finally, it contends that the Board should not, in any event, assert jurisdiction over the Petitioner because the latter is a religious organization Having considered the matter, the Board is of the opinion that it would assert jurisdiction over the Petitioner The Board has traditionally asserted jurisdiction over the operators of cemeteries whose gross annual revenues exceed $500,000 and whose annual out-of-state purchases are more than de mm- inns 2 As the Petitioner alleges that its gross annual revenues during the calendar year endmg 1989 ex- ceeded $500,000, and that its direct out-of-state purchases were over $15,000, the Petitioner clearly satisfies these standards Contrary to the Union's assertion, the inclusion of certain alleged nonrecur- ring revenues in calculating the Petitioner's total gross annual revenues for 1989 does not constitute grounds for declining to assert jurisdiction 3 Nor do we deem it necessary for the Petitioner to submit a fmancial statement for the first 6 months of 1990 in order to determine whether the Petition- er meets our jurisdictional standards, because in ap- plying its standards the Board has uniformly relied "on the expenence of an employer dunng the most recent calendar or fiscal year, or the 12-month period immediately preceding the hearing before the Board, where such expenence was available "4 mg its own position that its charitable contributions and insurance reim- bursement for 1989 are properly includable as part of its total 1989 gross annual revenues 2 See Operating Engineers Local 49 (Catholic Cemeteries), 295 NLRB 966 (1989) 3 See, e g, NLRB v Timberland Packing Corp. 550 F 2d 500, 502 (9th Cir 1977) We note, in any event, that the Union's assertion concerning the alleged nonrecurring nature of some of the Petitioner's 1989 revenues is not supported by any evidence and is based on speculation 4 See Myers & Camille Painters, 131 NLRB 72, 74 (1961), citing Aroos- took Federation of Farmers, 114 NLRB 538, 539 (1955) 299 NLRB No 100 HEBREW FREE BURIAL ASSN 679 Accordingly, the parties are advised that, based Board would assert jurisdiction over the Petition- on the foregoing allegations and assumptions, the er 5 The Union, as noted, also seeks dismissal of the petition on the ground that the Petitioner is a religious organization and that the Board consequently lacks junschction over it under NLRB v Catholic Bishop of Chicago, 440 US 490 (1979) However, the Board's advisory opinion proceedings under Sec 102 98(a) of the Board's Rules and Regulations are designed primarily to determine whether an employer's operations meet the Board's commerce standards for assertmg jurisdiction Accord- ingly, the instant Advisory Opinion addresses this Issue only, and ex- presses no view as to whether the Petitioner may be exempt from the Board's jurisdiction on some other grounds See, e g, Operating Engi- neers, supra at fn 3