Blaylock, Rebecca, Nursery School, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1428 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rebecca Blaylock Nursery School, Inc. and Mary K.
Weaver and Georgia Mae Crawford. Case AO-
234
March 31, 1982
ADVISORY OPINION
The petition and brief in support thereof were
filed on December 11 and 22, 1981, respectively,
by Mary K. Weaver and Georgia Mae Crawford,
two former employees of the Employer, Rebecca
Blaylock Nursery School, Inc., seeking to deter-
mine whether the Board would assert jurisdiction
over the Employer.
The petition and supporting brief allege that the
Petitioners filed an unfair labor practice charge
with the General Counsel of the Board in Case 10-
CA-17482, alleging that the Employer, a nonprofit
day care center, terminated the Petitioners' em-
ployment in violation of the National Labor Rela-
tions Act, as amended. The General Counsel dis-
missed the charge on the grounds that the Employ-
er's gross annual revenue of $158,479 for the 12-
month period ending June 30, 1981, did not meet
the Board's discretionary standard of at least
$250,000 gross annual income for asserting jurisdic-
tion over day care centers within its statutory juris-
diction. The Petitioners filed a motion for reconsid-
eration and the matter is now pending before the
General Counsel. Although the Employer and the
General Counsel were served with copies of the
petition and supporting brief, neither has filed a re-
sponse.
The Board's current standard for asserting juris-
diction over day care centers within its statutory
jurisdiction is, as indicated above, an annual gross
revenue of at least $250,000, Salt & Pepper Nursery
School & Kindergarten No. 2, 222 NLRB 1295
(1976).1 The Petitioners concede that the Employ-
er's gross annual income does not meet the Board's
standard for asserting jurisdiction but contend that
the standard should be lowered to extend the bene-
fits and protection of the Act to a larger segment
of the day care industry. The Petitioners note that
in announcing the $250,000 standard in Salt &
Pepper, supra, the Board indicated that the standard
was being adopted on the basis of existing knowl-
edge of the day care and similar industries and that
the standard would be reexamined as more infor-
mation concerning the operation of day care cen-
ters became available. The Petitioners contend that
available information now requires such a Board
' See also The Rhode Island Catholic Orphan Asylum a/k/a St. Aloysius
Home, 224 NLRB 1344 (1976); The Kent County Association for Retarded
Citizens d/b/a J Arthur Trudeau Center, 227 NLRB 1439 (1977); United
States Services for the Handicapped, 239 NLRB 976 (1978); and Aidfor the
Retarded, Inc., 256 NLRB 678 (1981).
260 NLRB No. 195
reexamination. They argue, in essence, that availa-
ble data, including the size of the day care industry
and the number of working parents who depend on
the industry for child care, evidence that labor
strife in the industry has the potential to greatly
disrupt interstate commerce. They contend further
that current data indicate that the $250,000 stand-
ard is too high to have a meaningful impact on the
industry's labor relations. Thus, the Petitioners
urge the Board to lower the standard.
As an alternative, the Petitioners request the
Board to lower the jurisdictional standard insofar
as it applies to day care centers which receive Fed-
eral subsidies. 2 They argue that the purpose of fed-
erally subsidized day care is to assist the unem-
ployed in gaining permanent employment and con-
tend that labor strife among such day care centers
may deter the unemployed from using the centers
and, thereby, defeat the purpose of the Federal
subsidies.
We have considered carefully the petition and
the supporting brief and we are of the opinion that
the petition should be dismissed. Section 102.98 of
the Board's Rules and Regulations provides for
state agencies and parties to state proceedings who
are in doubt as to whether the Board would assert
jurisdiction to petition the Board for an advisory
opinion on whether it would assert jurisdiction on
the basis of its current standard. Since there is no
proceeding involving the question of Board juris-
diction pending in any agency or court of a State
or territory, the petition does not satisfy the re-
quirement of the Board's Rules. Also, the Board's
advisory opinion proceedings are designed primar-
ily to determine questions as to the applicability of
the Board's discretionary jurisdictional standard to
an employer's operations.3 Therefore, a request for
reconsideration of Board policy or its rules does
not come within the intent of the advisory opinion
rules. Moreover, assuming it would be proper in
this proceeding to consider Petitioners' request to
reconsider the Board's standard pertaining to day
care centers, on careful review and consideration
of the petition and supporting brief, we are not per-
suaded that we should reconsider our $250,000 ju-
risdictional standard for day care centers at this
time. 4
2 The Employer herein derives 91 percent of its gross revenue from
Federal subsidies.
3 See Massachusetts Labor Relations Commission (Baystate Bus Corpora-
rion), 236 NLRB 1357 (1978), and cases cited in fn. 4.
' Member Fanning concurs in the dismissal of the petition on the
grounds that reconsideration of Board policy does not come within the
intent of the Board's advisory opinion rules. For the reasons enunciated
in his dissenting opinion in Salt & Pepper Nursery & Kindergarten School
No. 2. supra, he would assert jurisdiction over day care centers which
meet the Board's statutory jurisdictional standard and have gross annual
revenues of S100,000
1428
REBECCA BLAYLOCK NURSERY SCHOOL, INC 1429
Accordingly, for the reasons set forth herein, the
petition for an Advisory Opinion is dismissed.