Mount Holyoke College

National Labor Relations Board - Board Decisions

Dec 5, 1973

207 N.L.R.B. 730 (N.L.R.B. 1973)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mount Holyoke College and International Brother-
hood of Police Officers, a/w National Association
of Government Employees . Case AO-151
December 5, 1973
ADVISORY OPINION
This is a petition filed on September 27, 1973, by
Mount Holyoke College, herein called the Employer,
for an Advisory Opinion, in conformity with Sections
102.98 and' 102.99 of the Board's Rules and Regula-
tions, Series 8, as amended, seeking to determine
whether the Board would assert jurisdiction over the
Employer with respect to the dispute underlying the
representation case pending before the Massachu-
setts Labor Relations Commission, herein called the
Commission . On October 3, 1973, International
Brotherhood of Police Officers, a/w National Associ-
ation of Government Employees, herein called the
Association, filed a response to the petition for an
Advisory Opinion. On October 11, 1973, the Region-
al Director for the Board's Region 1 filed a Motion
To Intervene, setting forth commerce data concern-
ing the Employer, which was disclosed by his
investigation of three representation cases,
1-RC-12143, 1-RC-12345, and 1-RC-12947, filed
with him.' Thereafter, pursuant to Board permission,
the Employer and the Association, on October 24
and 25, 1973, respectively, each filed briefs in support
of their positions on the jurisdictional issue.
In pertinent part, the petition, response, interven-
tion, and brief allege as follows:
1. On June 21, 1973, the Association filed a
Petition for Investigation and Certification of Repre-
sentative with the Commission (Case CR-3397),
seeking to represent a unit of approximately five
security guards employed by the Employer to patrol
its college campus in South Hadley, Massachusetts,
and to enforce its rules . The Employer moved to
dismiss the petition on the grounds that it was
outside the scope of the Commission's jurisdiction.
2. The Employer, a nonprofit Massachusetts
corporation, operates a liberal arts college in South
Hadley, Massachusetts . Its gross annual revenues
from all sources for unrestricted use (excluding only
contributions which, because of limitations by the
grantor, are not available for use for operating
expenses) exceed $1 million and its annual purchases
of goods and materials directly from points outside
the Commonwealth of Massachusetts exceed
$50,000.
3. Although the Commission does not appear to
have made any findings with respect to the aforesaid
commerce data, the Association does not dispute this
data which the Employer supplied.
4. There are no representation or unfair labor
practice proceedings pending which involve the same
labor dispute between the Employer or the Associa-
tion and only Case 1-RC-12947, involving the
Employer, is now pending in Region 1.
5. Although served with a copy of the petition for
Advisory Opinion, no response, as provided by the
Board's Rules, has been filed by the Commission.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is a nonprofit educational
institution operating a liberal arts college at South
Hadley, Massachusetts.
2. The current standard for the assertion of
jurisdiction over the operations of any nonprofit
college or university is a gross annual revenue
(excluding only contributions which, 'because of
limitations by the grantor, are not available for use
for operating expenses) of not less than $1 million.2
The Employer's gross annual revenues from all
sources for unrestricted use exceed $1 million and
satisfy this monetary standard while the more-than-
$50,000 out-of-state purchases establish the Board's
statutory jurisdiction.
3. While both the Employer and Association
agree that the Employer's operations come within the
Board's jurisdiction, they disagree as to whether the
Board has jurisdiction over the labor dispute which
gave rise to the proceedings before the Commission
and to the instant petition. The Association argues
that, under the precedent in Massachusetts Society for,
Prevention of Cruelty to Animals, 203 NLRB No. 22,
the Board must decline to assert jurisdiction herein
because of the employees' dual function as security
guards for the Employer and as special police
officers appointed by the town of South Hadley,
while the Employer, in support of the assertion of
jurisdiction, contends that the cited precedent is
factually distinguishable from the situation herein. In
the Massachusetts SPCA case, the Association filed a
representation petition seeking to represent employ-
ees of the Massachusetts SPCA who were designated
as law enforcement officers. The Board found that
the employees in question performed their duties to a
significant degree on behalf of the Commonwealth
and were under its control and that the Common-
wealth and the Massachusetts SPCA were joint
employers of the employees. Concluding that Section
2(2) of the Act foreclosed the assertion of jurisdiction
therein, the Board dismissed the petition therein. It
has been well established that our Advisory Opinion
proceedings are designed primarily to determine
1 The Motion To Intervene is hereby granted.
2 Sec. 103.1 of the Board's Rules.
207 NLRB No. 121
MOUNT HOLYOKE COLLEGE
questions as to the applicability of the Board's
discretionary jurisdictional standards to an employ-
er's commerce operations .3 The entire submission by
the Employer and the Association as to whether the
Massachusetts SPCA case governed herein raises the
basic issue of whether Section 2(2) of the Act
precludes the assertion of jurisdiction-an issue
which does not fall within the intendment of the
Advisory Opinion rules.4 The - Board is of the view
that questions raised by such an issue can best be
resolved at a full hearing in an appropriate Board
proceeding where all interested parties would have
the opportunity to introduce evidence, to examine
and cross-examine witnesses, to file briefs, to argue
731
orally, and to participate to the extent necessary to
present their positions .5 These procedures are neces-
sary to enable the Board to make an informed
judgment on the jurisdictional issue which has been
raised by the parties herein.
Accordingly, the parties are advised, under Section
102.103 of the Board's Rules, that, on the allegations
herein, the Board would assert jurisdiction over the
Employer's operations with respect to disputes
cognizable under Section 8, 9, and 10 of the Act, but
it expresses no opinion as to the jurisdictional issue
raised by the dispute concerning the representation
of the Employer's security guards herein.
3 See, e.g., The Children's Village, Inc, 180 NLRB 1044, and cases cited. 5 See, e.g., National Bulk Carriers, Inc and UniverseTankshius, Inc., 134
4 Ibid NLRB 1186.