Wave Hill, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1980

248 N.L.R.B. 1149 (N.L.R.B. 1980)

WAVE HILL, INC. 1149
Wave Hill, Inc. and District Council 37, AFSCME,
AFL-CIO. Case AO-218
April 16, 1980
ADVISORY OPINION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS, PENELLO, AND TRUESDALE
A petition for advisory opinion was filed on Feb-
ruary 13, 1980, by Wave Hill, Inc., herein called
the Employer, pursuant to Sections 102.98 and
102.99 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, seek-
ing a determination whether the Board would
assert jurisdiction over its operations on the basis
of the Board's current standards. Thereafter, Dis-
trict Council 37, AFSCME, AFL-CIO, herein
called the Union, filed, on February 20, 1980, a re-
sponse to the Employer's petition for an advisory
opinion and, on February 28, 1980, a brief supple-
menting its response.
In pertinent part, the petition, response, and brief
allege as follows:
1. There is pending before the New York State
Labor Relations Board, herein called the State
Board, a petition docketed as Case SE-52401, filed
by the Union, seeking certification as representative
of certain employees of the Employer.
2. The Employer is a not-for-profit New York
corporation located in the city of New York
where, under the management of an independent,
private board of trustees, it operates what it de-
scribes as an environmental center. Under its con-
tract with the city of New York, the Employer
agreed to operate its grounds, known as Perkins
Garden, as: (1) an aboretum and botanical garden;
(2) an arts and/or cultural center; and (3) an envi-
ronmental science center for conservation, educa-
tional, and scientific studies. Its facilities and activi-
ties have been devoted to botany, horticulture,
conservation, environment, performing arts, educa-
tion, sculpture, painting, and research. In the area
of conservation, it has participated in studies con-
cerning migratory birds, the improvement of the
ecology of the Hudson River, and the preservation
of the New Jersey Palisades, and has engaged in
research on air and water resources. The Employ-
er's educational activities have taken a variety of
forms including the conduct of (1) mobile educa-
tion programs with schools, senior citizen centers,
and other community groups; (2) teacher training
workshops on integrating outdoor education into
teachers' school curriculum; and (3) conferences
and symposia on land use. In addition, it has pre-
sented art exhibitions, concerts, chamber music,
poetry reading, and ballet.
248 NLRB No. 149
3. According to the affidavit of its executive di-
rector, the Employer's current budgeted expendi-
tures are approximately $840,000 annually,' includ-
ing significant amounts of funding from the Federal
Government and foundations, and its direct out-of-
state purchases of goods, services, and supplies
exceed $50,000 annually.
4. The State Board has made no findings with re-
spect to the commerce data submitted by the Em-
ployer, and the Union has neither admitted nor
denied them. Meanwhile, the State Board has de-
ferred its proceedings pending Board determination
of the instant petition for advisory opinion.
5. There is no representation or unfair labor
practice proceeding involving the parties now
pending before the Board.2
6. The Employer contends, in effect, that the
Board should assert jurisdiction over its operations
by establishing a new standard for environmental
centers. It argues that, because it is an environmen-
tal center different from other insititutions, the
Board should not apply to it the museum jurisdic-
tional standard which is an annual gross volume of
revenue of $1 million and which it does not meet,3
but instead should adopt and apply "a lesser thresh-
old monetary jurisdictional standard" for interstate
commerce institutions such as the Employer.
7. In its submission, the Union argues that the
Employer most nearly approximates the education-
al institution category used by the Board and that,
therefore, it ought to be subject to the $1 million
annual gross revenue jurisdictional standard estab-
lished for such institutions.4 Accordingly, the
Union contends that, as the Employer's annual
gross volume of business fails to meet this jurisdic-
tional standard, the Board should advise that it de-
clines to assert jurisdiction over the Employer's op-
erations.
8. Although served with a copy of the petition
for advisory opinion, the State Board has not filed
a response as permitted by the Board's Rules and
Regulations.
On the basis of the foregoing, the Board is of the
opinion that:
i The Employer's balance sheet, attached to the Union's submission.
shows that the total public support and revenues for the fiscal year
ending June 30, 1978, amounted to a little less than $820.000
2 The Employer's petition in Case 2-RM 1875 was withdrawn pursu-
ant to an informal agreement between the parties and the Board's Region
2 Office, opting for the Board's advisory opinion procedures.
3 Presumably, the Employer is adverting to such precedents as The
Museum of Fine Arts, 218 NLRB 715 (1975); The Helen Clay Frick Foun-
dation, 217 NLRB 1100 (1975); Minneapolis Society of Fine Arts, 194
NLRB 371 (1971); Trustees of the Corcoran Gallery of Art, 186 NLRB 565
(1970). See also The Colonial 'illimsburg Foundation, 224 NLRB 718
(1976). and Pacifica toundation-KPF4, 186 NLRB 825, 826 (1970).
4 Citing Sec. 103 1 of the Board's Rules and Regulations, Series 8, as
amended; and The Windsor School. Inc., 200 NLRB 991 (1972)
Wave Hill, Inc. and District Council 37, AFSCME,
WAVE HILL, INC.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Employer is a not-for-profit corporation
located in the city of New York where, as an envi-
ronmental center known as Perkins Garden, it op-
erates (1) an aboretum and botanical garden; (2) an
arts and/or cultural center; and (3) an environmen-
tal science center for conservation, education, and
scientific studies. As noted above,6 the Board has
asserted jurisdiction private nonprofit galleries and
cultural enterprises having a gross annual revenue
of over $1 million on the premise that they are op-
erating as an adjunct to the educational system.
Based on the submissions of the parties, it appears
that the Employer is, in many ways, similar to an
art museum, contributes to the cultural and educa-
tional values of the community, and thus, acts as an
adjunct to the educational system. In these circum-
stances, we believe, in accord with the aforemen-
tioned precedents and contrary to the Employer,
I See, e.g., cases cited in fn. 3.
that the application of the $1 million gross annual
revenue standard to the Employer's operations is
warranted.
The Employer's direct out-of-state purchases in
excess of $50,000 annually establish the Board's
statutory jurisdiction over the Employer. However,
as the Employer's annual gross revenue is less than
$1 million, it does not meet the aforementioned
Board's discretionary monetary standard for asser-
tion of jurisdiction over enterprises such as the
Employer. Accordingly, we conclude that it would
not effectuate the policies of the Act to assert juris-
diction herein.
Accordingly, the parties are advised, under Sec-
tion 102.103 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amend-
ed, that, based on the allegations made herein, the
Board would not assert jurisdiction over the Em-
ployer's operations with respect to labor disputes
cognizable under Sections 8, 9, and 10 of the Act.