Itt Job Training Services, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 259 (N.L.R.B. 1989)

ITT JOB TRAINING SERVICES 259
ITT Job Training Services, Inc., Petitioner and
. International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers,
AFL-CIO. Case A0-272
- November 21, 1989
ADVISORY OPINION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, HIGGINS, AND DEVANEY
Pursuant to Section 102 98(a) of the National
Labor Relations Board Rules and Regulations, on
October 16 and November 9, 1989, ITT Job Train-
ing Services, Inc (ITT) filed a Petition for an Ad-
visory Opinion and a brief in support, respectively,
seeking a determination whether the Board would
assert jurisdiction over it In relevant part the peti-
tion and brief allege as follows
1 Pursuant to contracts with the U S Depart-
ment of Labor, ITT operates several Job Corps
training facilities in several different states, includ-
ing, since April 1, 1989, a facility located at Wes-
tover Air Force Base in Chicopee, Massachusetts
The projected annual gross revenue from the Wes-
tover facility through March 31, 1990, is in excess
of $1 million, of which in excess of $50,000 will be
derived from services performed directly for cus-
tomers outside Massachusetts It is projected that
during the same period the Westover facility will
also purchase materials and services in excess of
$50,000 directly from sources outside Massachu-
setts
2 On May 2, 1988, the International Union of
Electronic, Electrical, Salaried, Machine and Fur-
niture Workers, AFL-CIO (the Union) filed a rep-
resentation petition with Region 1 of the Board,
Case 1-RC-19082, in which the Union sought to
represent certain of the, employees at the Westover
facility At that time the Westover facility was op-
erated by Operations and Maintenance Services,
Inc, Westover Job Corps Center/GE (GE) Pursu-
ant to a joint stipulation between the Union and
GE, in late May 1988, the Regional Director of
Region 1 dismissed the Union's representation peti-
tion on the grounds that GE "did not retain suffi-
cient control over the employment conditions of its
employees to enable it to engage in meaningful col-
lective bargaining," and thus, under Res Care, Inc ,
280 NLRB 670 (1986), "the Board would decline
to assert its jurisdiction over" GE
3 Shortly thereafter, on May 24, 1988, the
Union filed a virtually identical representation peti-
tion, Case CR-3658, with the Massachusetts Labor
Relations Commission (the State Commission) On
July 19, 1988, GE moved to dismiss the Union's
petition on the grounds, inter aim, that the State
Commission was preempted from asserting junsdic-
tion over it The State Commission denied GE's
motion and, on June 21, 1989, the Massachusetts
Supreme Judicial Court issued a decision upholding
the State Commission's ruling (Operation & Mainte-
nance Service v Labor Relations Commission, 405
Mass 214, 132 LRRM 2634 (1989))
4 Shortly before the decision by the Massachu-
setts Supreme Judicial Court, in April 1989, the
U S Department of Labor awarded the Westover
contract previously held by GE to ITT Accord-
ingly, on August 11, 1989, the Union moved to
amend its representation petition before the State
Commission to substitute ITT for GE as the em-
ployer of the Westover employees In addition, on
October 25, 1989, the Union filed a new representa-
tion petition with the State Commission, Case CR-
3663, which named ITT as the employer at the
Westover facility The Union requested that this
new representation petition be processed only if the
State Commission denied its motion to substitute
ITT for GE on the original representation petition
ITT _opposed both the motion to amend and the
new petition on the same grounds as those previ-
ously asserted by GE, i e, that the State Commis-
sion was preempted from asserting jurisdiction On
November 6, 1989, the State Commission advised
the parties that, inasmuch as it was unaware of any
cases holding that the Board's declination of juris-
diction over a predecessor employer automatically
extends to the successor, it would stay a ruling on
the Union's motion and hold the petitions in abey-
ance until such time as the Union actually obtained
a determination that the Board would decline to
assert jurisdiction over ITT
On November 8, 1989, the Union filed a state-
ment of position in response to the petition for an
advisory opinion The Union's position is that
ITT's petition is merely a "strawman", that "there
is not now, and never has been, a doubt concerning
whether ITT meets the Board's current jurisdic-
tional standards", and that the only real jurisdic-
tional issue in the case involves the application of
Res Care
Having duly considered the matter, we deny
ITT's request for an advisory opinion Although
we would find, based on the undisputed allegations
in paragraph 1 above, that ITT satisfies the Board's
commerce standards for asserting jurisdiction,' this
is not the primary issue raised by ITT Rather, it is
clear from the remaining allegations and from
ITT's brief that the primary issues on which ITT
seeks an opinion are (1) whether, as with GE, the
Board would decline to assert jurisdiction over
' See American Technical Assistance Corp, 224 NLRB 959 (1976)
297 NLRB No 33
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ITT under the principles of Res Care, and (2) if so, 102 98(a) 2 Accordingly, we decline to address
whether, contrary to the decision of the Massachu- them and the Petition for an Advisory Opinion is
setts Supreme Judicial Court, the State Commission dismissed
is preempted from asserting jurisdiction over rrr
Neither of these issues is appropnate for resolution a See Command Security Corp, 293 NLRB 593 (1989), and cases cited
therein (Res Care issue), and District 65, Wholesale, Retail Office & Proe-m an advisory opinion proceeding under Section essing Union, 186 NLRB 791 (1970), and James M Casida, 152 NLRB
526 (1965) (preemption Issue)