German School Society, Washington, D.C., The, d/b/a The German School of Washington, D.C.

National Labor Relations Board - Board Decisions

Mar 29, 1982

260 N.L.R.B. 1250 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The German School Society, Washington, D.C.,
d/b/a The German School of Washington, D.C.
and Employees Association of the German
School, Washington, D.C., Petitioner. Case 5-
RC-11486
March 29, 1982
DECISION AND DIRECTION OF
ELECTIONS
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a petition for representation filed on April
1, 1981, under Section 9(c) of the National Labor
Relations Act, as amended, a hearing was held
before Hearing Officer Arlene C. Thorne on var-
ious dates between May 5 and May 15, 1981. Fol-
lowing the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, and by direction
of the Acting Regional Director for Region 5, this
proceeding was transferred to the Board for deci-
sion. Thereafter, briefs were filed by the Employer
and the Petitioner and Intervenor (Vertrauensrat
der Deutschen Schule Washington (Trustee Coun-
cil of the German School, Washington, D.C.)).
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record' in this case, the Board
finds:
I. THE BOARD'S JURISDICTION
The parties stipulated, and we find, that the Em-
ployer, The German School Society, Washington,
D.C., an unincorporated voluntary association, is a
private nonprofit educational institution licensed to
do business in the State of Maryland, with its prin-
cipal place of business located in Potomac, Mary-
land. During the preceding 12-month period, the
Employer derived gross revenues in the course of
conduct of its operations in excess of $1 million, in-
cluding contributions from the Federal Republic of
Germany, but excluding contributions which, be-
cause of limitations by the grantor, were not availa-
ble for operating expenses. During the same 12-
On June 10, 1981, the Employer filed a request to correct the tran-
script. By letter dated June 12, the Board's Deputy Executive Secretary
informed all parties of their right to file objections or comments regard-
ing the Employer's request No such objections or comments have been
received. Accordingly, the Board grants the Employer's request in its en-
tirety.
260 NLRB No. 169
month period, the Employer received gross rev-
enues in excess of $50,000 directly from points lo-
cated outside the State of Maryland for the per-
formance of services.
The Employer contends, however, that the
Board is without jurisdiction in this matter because:
(1) it does not control the conditions of employ-
ment and is not the employer; (2) it is dominated
and substantially controlled by the Federal Repub-
lic of Germany, which is exempt from our jurisdic-
tion under the Foreign Sovereign Immunities Act
of 1976, 28 U.S.C. § 1602, et seq.; and (3) it is not
engaged in "commerce" within the meaning of the
Act. The Employer further contends that the
Board should exercise its discretion and as a matter
of policy should not assert jurisdiction because of
the Employer's intimate connection with the gov-
ernment of the Federal Republic of Germany. For
the reasons set forth below, we shall assert jurisdic-
tion over the Employer's operations.
A. The Nature of the Employer's Operations
The record reveals that the Employer operates a
private, nonprofit school. The school offers courses
of instruction in grades kindergarten through 13, is
open to the general public, and is accredited by the
Maryland State Department of Education. The
school has an enrollment of approximately 720 stu-
dents, of whom about two-thirds are German na-
tionals whose parents are employed by the Embas-
sy of the Federal Republic of Germany, other
agencies of the Federal Republic of Germany, or
international organizations such as the World Bank
and the International Monetary Fund. The school
operates in two buildings located in Potomac,
Maryland. Both of the facilities, as well as the real
property on which those facilities are sited, are
owned by the Federal Republic of Germany and
are exempt from local taxation. For the school year
1980-81, the school's total gross receipts were
$1,497,575, including $909,145 in tuition, $209,680
from bus fees, $13,140 in membership fees, $9,150
from other private sources, and $356,460 in direct
subsidy payments from the Federal Republic of
Germany. The school's budget for the 1981-82
school year anticipates gross receipts of $1,702,590,
including $1,075,520 in tuition, $15,400 in member-
ship fees, $11,000 from other private sources,
$235,800 from bus fees, and $364,870 in direct sub-
sidy payments from the Federal Republic of Ger-
many. In addition to the direct subsidies, the Fed-
eral Republic of Germany provides the school's
two buildings to the Employer on a rent-free basis,
and also assigns approximately 22 teachers from
Germany to the school at no cost to the Employ-
1250
THE GERMAN SCHOOL OF WASHINGTON, D.C.
er.2 The Employer approximates the value of these
items at $704,419 per annum and $1,210,000 per
annum, respectively.
The Employer's articles of association provide
that any person may become a member who sub-
mits a written application supported by two mem-
bers of the society and who gives a "written under-
taking" to pay an amount of $5 annually.3 The Em-
ployer's articles of association further provide that
students can be admitted to the school only if the
person responsible for their education is a member
of the society; that a meeting of members must be
held at the beginning of each school year; and that
the functions of the annual membership meeting
are, inter alia, to decide on the draft budget submit-
ted by the school board for the new school year, to
decide on the purchase or sale of assets, to decide
on proposals of the school board and members, and
to elect a new school board. Additionally, the arti-
cles provide that the duties of the school board are,
inter alia, to generally represent the interests of the
Employer both internally and in relation to outside
parties, and specifically to discuss and formulate
budget estimates for the new fiscal year; to appro-
priate necessary funds for operation of the school
and supervise observance of the budget; to make
and receive legal statements and perform legal acts
on behalf of the Employer; to determine the char-
acter and structure of the school; to approve
school regulations, the service instructions, and the
syllabuses; to decide on applications for reduction
of tuition fees; and, most importantly, "to appoint
and dismiss the (p)rincipal, the teachers, and the
employees of the (s)chool." However, the articles
also require that decisions regarding the character
and structure of the school, or decisions entailing
financial consequences, be taken "in agreement
with the head of the foreign mission of the Federal
Republic of Germany, if that mission makes contri-
butions from its budget."
As of the hearing date in this matter, the Em-
ployer employed 79 individuals, including 3 stipu-
lated supervisors. Of these individuals, 57 are local-
ly hired, including 33 teachers, I librarian, I stipu-
lated supervisor, 11 bus drivers, and 11 administra-
tive personnel, 3 of whom were stipulated to be
"confidential" employees. The remaining 22 indi-
viduals, including 2 stipulated supervisors, are
teachers from the Federal Republic of Germany
who are on temporary assignment to the school.
Each of these "assigned teachers" must be a
"Beamter" civil servant of a State of the Federal
Republic of Germany. The distinguishing charac-
teristic of a Beamter civil servant is that he has life-
' The status of these German-assigned teachers is discussed infra.
'The articles also provide for certain "honorary members."
time tenure in his job. A Beamter teacher interested
in teaching for the Employer files an individual ap-
plication with the Central Office for German
Schools Abroad, an agency of the Foreign Office
of the Federal Republic of Germany, hereinafter
referred to as the Central Office. This application is
then reviewed and matched against the Employer's
previously filed requests. The Employer's requests
are filed prior to the start of each school year and
reflect its anticipated needs both in terms of the
number of assigned teachers requested and the sub-
ject areas in which those teachers should be quali-
fied. The Central Office then selects two or three
applicants for each vacant assigned teacher position
and forwards their files to the Employer. Some-
times the applicants receive personal interviews
with an Employer official but the more frequent
practice appears to be for the Employer to base its
hiring decisions on the contents of the files for-
warded by the Central Office, together with some
telephonic communication. In either event, once
the Employer has chosen an applicant from the
names forwarded by the Central Office, the chosen
applicant and the Employer enter into a 3-year
contract, subject to the applicant receiving a leave
of absence for that period from his home state's
school system. The executed contract is then for-
warded to the Central Office for approval. The
contract specifies, inter alia, the subject matter and
number of hours the individual will be required to
teach, certain conditions regarding contract exten-
sions, limitations on outside employment, and a me-
diation procedure.4
Assigned teachers employed by the Employer
are paid by the Central Office. Their salaries are
paid in German marks and are deposited directly
into their bank accounts in the Federal Republic of
Germany by the Central Office. In addition to sala-
ries, the assigned teachers receive additional bene-
fits from the Central Office such as a housing al-
lowance, a cost-of-living adjustment, a medical al-
lowance, child support payments, and death bene-
fits. While working for the Employer, the assigned
teachers pay income taxes to the Federal Republic
of Germany, but pay no taxes to the United States
Government or the governments of the several
States. The salaries and other compensation re-
ceived by the assigned teachers, like all Beamter
civil servants in Germany and elsewhere, are set by
the government of the Federal Republic of Ger-
many and enacted into law by the sovereign. Al-
' Several of the Frmployer's officials, including the principal and vice
principal, also are Beumrner civil servants These officials are hired hby the
Employer through the same procedures used for hiring assigned teachers,
except thal individuals applying to he officials always receive personal in-
tervie's. from members of the school board or the soclety
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though Beamter civil servants are prohibited by
law from being represented by a union for pur-
poses of collective bargaining, their collective in-
terests are represented by the "Beamtenbund" (As-
sociation for Lifetime Civil Servants), a voluntary
association which acts as a lobbying group.'
Through its lobbying efforts, the Beamtenbund
often has been successful in convincing the govern-
ment of the Federal Republic of Germany to
accept and apply to the Beamter civil servants the
monetary adjustments negotiated between that gov-
ernment and the Union Federation for German Sal-
aried Employees covering nontenured employees
of the Federal Republic.
In addition to the assigned teachers, the school
employs approximately 34 locally hired teachers.
The Employer hires these individuals without con-
sultation with the Central Office. Each locally
hired teacher has an individual employment con-
tract with the Employer similar to, but broader in
scope than, the contracts for assigned teachers. The
Employer determines the salaries and fringe bene-
fits to be received by each locally hired teacher, al-
though the Central Office must approve the pro-
posed salaries.6 The other locally hired employees
are hired, fired, and compensated by the Employer
without input from the Central Office.
As noted above, the school is approved by the
Maryland State Department of Education in ac-
cordance with state laws and regulations governing
private educational institutions. The applicable
state laws and regulations require that the school
meet certain minimum qualification standards gov-
erning, inter alia, student-teacher ratios, library
holdings, minimum number of school days per
year, minimum number of teaching hours per day,
minimum instructional requirements,7 and financial
reporting and audits. To review and enforce these
requirements, the State Department of Education
conducts regular onsite inspections, which include
classroom visitation. The school's accreditation by
the State of Maryland permits it to award a Mary-
land high school diploma to those students who
successfully complete the 12th grade. Graduation
from the school, however, takes place at the com-
pletion of the 13th grade. Most of the school's stu-
dents attend universities in the Federal Republic of
Germany following graduation. In order to be ad-
mitted to such universities, the students must suc-
cessfully pass the Abitur, a written examination
5 Apparently, an unknown number of the Employer's assigned tealchrs
belong to either the Beamrenbund or a similar association, the "(iewerk-
schaft fuer Eriziehung und Wiissernscha'" (Union for Educationl and Sci-
ence). hereinafter referred to as GEW
' Such approval has never been withheld.
'This includes minimum credit requirements in English and United
States history, which the Employer admits it would not otherwise pro-
vide.
given at the end of the 13th grade. Officials from
the Federal Republic of Germany supervise the ad-
ministration of the Abitur, which is also adminis-
tered to students in schools in the Federal Repub-
lic.
B. The Board's Statutory Jurisdiction
At the hearing, the parties entered into the fol-
lowing stipulation concerning the Employer's com-
merce statement:
The German School Society, Washington,
D.C., doing business as the German School of
Washington, D.C., a private, non-profit educa-
tional institution whose principal place of busi-
ness is located at 8617 Chateau Drive, Poto-
mac, Maryland, is licensed to do business in
the State of Maryland. During the preceding
twelve-month period, the German School So-
ciety, Washington, D.C., doing business as the
German School of Washington, D.C., in the
course and conduct of its operations, derived
gross revenues in excess of $1 million, includ-
ing contributions from the Federal Republic of
Germany, but excluding contributions which,
because of limitation by the grantor, are not
available for operating expenses. During the
same preceding twelve-month period, the
German School Society, Washington, D.C.,
doing business as the German School of Wash-
ington, D.C., in the course and conduct of its
operations, received gross revenues in excess
of $50,000 directly from points located outside
the State of Maryland for the performance of
services.
These stipulated facts are sufficient to warrant our
finding that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act. In Cornell University, 183 NLRB 329 (1970),
the Board held that it would assert jurisdiction
over nonprofit educational institutions where their
operations have a substantial impact on interstate
commerce, despite the fact that such institutions do
not engage in purely commercial activities. There-
after, in Shattuck School, 189 NLRB 886 (1971), the
Board determined that it would assert jurisdiction
over nonprofit secondary schools which meet the
dollar volume standards applicable to nonprofit
colleges and universities published at Section 103.1
of the Board's Rules and Regulations, Series 8, as
amended; i.e., secondary schools which have a
gross annual revenue from all sources (excluding
only contributions which, because of limitation by
the grantor, are not available for use for operating
expenses) of not less than $1 million. Clearly, the
Employer's operations satisfy our jurisdictional
1252
THE GERMAN SCHOOL. OF WASHINGTON, D.C
standards. It is also plain that the Employer is not
within the terms of any of the statutory exclusions
contained in Section 2(2) of the Act, and we find
that we have the statutory power to assert jurisdic-
tion herein.8 State Bank of India, 229 NLRB 838,
840-841 (1977). Accord: S K Products Corp., 230
NLRB 1211 (1977); Alcoa Marine Corporation, 240
NLRB 1265 (1979).
The Employer further argues, however, that it
does not have sufficient control over the salaries,
wages, hours, and other terms and conditions of
employment of its employees to enable it to bar-
gain meaningfully with a labor organization, citing
National Transportation Service, Inc., 240 NLRB
565 (1979). To the contrary, the Petitioner argues
that both the record and Board precedent make it
clear that the Employer can engage in meaningful
bargaining about the terms and conditions of its
employees' employment. We agree with the Peti-
tioner. Initially, we stress that the Employer con-
cedes that it can bargain, without limitation or re-
striction from the Federal Republic of Germany,
over the wages and terms and conditions of em-
ployment applicable to its 11 administrative em-
ployees, 11 bus drivers, and 5 kindergarten teach-
ers, all of whom are hired locally without input
from the government of the Federal Republic and
paid by funds from tuition moneys under the exclu-
sive control of the Employer. With respect to the
remaining locally hired teachers,9 the record clear-
ly establishes the Employer's ability to engage in
meaningful bargaining with a certified representa-
tive concerning those teachers' wages, hours, and
working conditions. The locally hired teachers are
hired and disciplined by the Employer without in-
terference from the government of the Federal Re-
public of Germany, and the Employer has the sole
discretion to determine whether to renew or termi-
nate the locally hired teachers' employment con-
tracts at the conclusion of each school year. In the
past, the locally hired teachers have been repre-
sented by the Intervenor in informal negotiations
with the Employer. These negotiations have result-
ed in a salary schedule tied to wages received by
public school teachers in Montgomery County,
Maryland, the situs of the school; subsequent cost-
of-living increases; a health insurance plan; a retire-
ment system; procedures for teachers' evaluations; t'
increased liability insurance; certain curriculum
changes; reduced working hours; and a modified
I See also Soy City Bus Services. Division of R. W. Harmon & Sons, Inc.,
249 NLRB 1169, 1170 (1980).
'Our discussion concerning locally hired teachers is equally applicable
to the locally hired libranan.
0' The agreed-upon evaluation procedures were unilaterally repudiated
by the Employer shortly after the filing of the petition herein, allegedly
at the behest of the Central Office
school calendar. Additionally, the terms of the in-
dividual employment contracts between the Em-
ployer and each assigned teacher are the product
of negotiations between the Employer and the In-
tervenor. Some of these items, however, including
the salary schedule and the content of the individu-
al employment contracts, were agreed to by the
Employer subject to the approval of the Central
Office. In any event, the record indicates that even
in those areas where the Employer's articles of as-
sociation require agreement of the government of
the Federal Republic of Germany described supra,
the Employer is able to negotiate with a labor or-
ganization representing its employees concerning
those items which will be submitted to that govern-
ment for its approval." Furthermore, we find that
the remaining discretion left to the Employer
under its articles of association and other applicable
regulations is broad enough to permit good-faith
bargaining over substantial terms and conditions of
employment. 12
Similarly, we also find that the Employer retains
sufficient discretion over the terms and conditions
of employment of the Employer's assigned teachers
to permit good-faith bargaining with a labor orga-
nization representing those employees. As set forth
above, there is no dispute but that the Federal Re-
public of Germany sets and enacts into law a salary
schedule and certain fringe benefit allowances ap-
plicable to all Beamter civil servants, including the
Employer's assigned teachers. It is further undis-
puted that, as Beamter civil servants, the assigned
teachers enjoy lifetime job tenure in their job posi-
tions in the Federal Republic, that the Central
Office sets the maximum number of hours per
week that the assigned teachers may be required to
teach, and that the government of the Federal Re-
public retains the exclusive right to promote or
demote the assigned teachers. However, it appears
that the Employer could bargain about granting
the assigned teachers other fringe benefits (e.g., ad-
ditional holidays), supplementary salary compensa-
tion payable from tuition moneys, 13 or reduced
teaching hours in exchange for assumption of extra-
curricular duties. Additionally, it is clear that the
Employer retains considerable discretion to engage
in meaningful bargaining concerning the assigned
teachers' working conditions, including Employer-
furnished liability insurance; class and homeroom
assignments; scheduling of, and limitations on the
" See The Singer Company. Education Division. Career Systems. Detroit
Job Corps Center, 240 NLRB 965 (1979)
'2 Id
' Such additional compensation might require Central Office approval,
howsever, in order for the assigned leacher receiving same to avoid poi
tential charges of "illegal practices "
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount of, student supervision outside of class such
as field trip assignments; hiring and premature con-
tract termination procedures; contract renewal pro-
cedures; department head selection procedures;
school calendar; arbitration or mediation proce-
dures; methods of compensation; and content of the
Employer's annual request for assigned teachers
from the Central Office. In finding that the Em-
ployer retains discretion to bargain collectively
concerning the matters set forth above, we particu-
larly note that the Employer and the Intervenor
previously have negotiated agreements governing
some of these subjects, including liability insurance,
the school calendar, and the method by which as-
signed teachers are compensated." Further, the
Employer conceded at the hearing that it could
compensate for any lost subsidy revenues from the
Central Office by increasing the school's tuition. 15
Accordingly, for all the foregoing reasons, we
find that the Employer retains sufficient control
over the salaries, hours, and other terms and condi-
tions of employment of its employees to enable it
to bargain meaningfully with a labor organization,
and thus satisfies the National Transportation Serv-
ice, supra, criteria.
Lastly, the Employer argues that even if the
Board does have jurisdiction over its operations,
the government of the Federal Republic of Ger-
many is the employer of the assigned teachers, not
the Employer herein. We find no merit in the Em-
ployer's contention. Even apart from the various
controls exercised over the assigned teachers by
the Employer, it is uncontroverted that each and
every assigned teacher employed at the school ob-
tained a leave of absence from the Federal Repub-
lic or one of its component states. Most important,
however, is the fact that the Federal Republic itself
has cautioned the assigned teachers that their em-
ployer at the school was the "School Carrier"
("Schultraeger")-that is, the Employer herein.
Indeed, the documentary evidence introduced in
the hearing of this proceeding reveals that the Cen-
tral Office has cautioned applicants for assigned
teacher positions that:
Neither is the Federal Republic of Germany,
nor are the governments of the individual
"Thus, the record reveals that in 1972 the Employer and the Interve-
nor negotiated an agreement whereby the assigned teachers would be
paid their entire salaries in marks within the Federal Republic of Ger-
many. Previously, the assigned teachers received a portion of their sala-
ries in dollars paid to them within the United States.
1 That the Employer's relationship to the government of the Federal
Republic of Germany may place it under handicaps or even substantial
hardships in bargaining is not reason for us to refuse jurisdiction.
N.LR.B. v. Austin Development Center. Inc., 606 F.2d 785, 789, fn. 8 (7th
Cir. 1979), enfg. 236 NLRB 724 (1978); Herbert Hlarvey. Inc. v. NVL.R.B.,
424 F.2d 770, 778-779 (D.C. Cir. 1969), enfg. 171 NLRB 238 (1968). Cf.
Kal Leasing. Inc., 240 NLRB 892 (1979).
states (i.e., of Germany) carriers of the schools
abroad under consideration. [Translator's
Note: "carriers" is meant for the responsible
parties who found, support, and run the
schools.] (sic)
Therefore, the teacher does not transfer into
employment by the Federal Civil Service in
working at a school abroad, but into the em-
ployment of the school carrier. Contracts of
employment are made with the school carrier,
the Central Office serving as the go-between.
Another document, also issued to applicants for as-
signed teacher positions, similarly states that:
The schools abroad which are coming under
consideration for the assignment of teachers
are private institutions of foreign law. The
contract drawn between teacher and school
holding body is of a private legal nature and
forms no work relationship with the Federal
Republic or of a State in the Federal Republic
of Germany ....
Further indicating that the government of the Fed-
eral Republic disavows any employment relation-
ship between itself and the assigned teachers is an
excerpt appearing in a letter or memorandum from
the Central Office to the Embassy of the Federal
Republic of Germany in the United States. This
letter, dated October 31, 1972, explains the imple-
mentation of the new compensation method for as-
signed teachers (discussed supra) which required
that the Central Office deposit the teachers' salaries
directly to their bank accounts in the Federal Re-
public. In pertinent part, the letter states that: "It is
asked (that you) inform the teaching personnel,
that the Payments-of-contract will be paid by the
Central Office on behalf of the School Carrier (or
by order of) and because of this the employee rela-
tionship with the School Carrier is not affected."
Hence, we reject the Employer's contention that
the Federal Republic is the employer of the as-
signed teachers.
In summary of all the foregoing, we find that the
Employer meets our jurisdictional dollar standard
for private secondary schools; is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act; is an employer within the meaning of
Section 2(2) of the Act; retains sufficient control
over the terms and conditions of employment of all
individuals in the unit sought by the Petitioner to
enable it to bargain meaningfully with the Petition-
er or another labor organization under the stand-
ards set forth in National Transportation Service,
supra; and is the sole employer of all of the em-
ployees in the petitioned-for unit, including the as-
1254
THE GERMAN SCHOOL. OF WASHINGTON, D.C.
signed teachers."6 Thus, we find that we have the
statutory power to assert jurisdiction herein.
C. The Board's Exercise of Discretionary
Jurisdiction
The Employer contends that, even assuming that
the Board has statutory jurisdiction over the oper-
ations of the school, the Board should exercise its
discretion and as a matter of policy should not
assert jurisdiction because the Employer is substan-
tially controlled by the government of the Federal
Republic of Germany. We disagree. Although the
Board previously followed a discretionary policy
of declining jurisdiction over employers operating
in the United States which had a "close relation-
ship" with an "agency" or "an instrumentality" of
a foreign government, 17 those cases were overruled
in State Bank of India. supra. There, we stated that:
[W]e now conclude that there is no public
policy or policy of the Act which, on the
ground that the employer is disclosed to be an
"agency" or "instrumentality" of a foreign
state, justifies us to continue to decline juris-
diction in cases affecting employees in our
own country whose employer engages in com-
mercial activity which meets the Board's
standards for such enterprises. i"
We find that State Bank of India and its progeny19
are controlling herein. If there are distinctions be-
tween the situations in those cases and the facts of
the case at bar, it is that there is even less reason
here to decline jurisdiction. Unlike the cited cases,
the Employer herein is not an "agency" or "instru-
mentality" of a foreign government, but rather is
an unincorporated, voluntary association seated in
the District of Columbia and registered in the State
of Maryland to operate a private school. The
school is open to the general public, accepts tu-
ition, and provides educational services in a like
manner as any other nonprofit private school. The
Employer complies with many other laws of the
United States and the State of Maryland including,
"' The fact that the assigned teachers are admitted to the United States
under "A-2" visas is not determinative. Although the Employer contends
that such visas are granted only to representatives of a foreign govern-
ment temporarily admitted to this country to perform official duties, we
note that the "A-2" visas held by the Employer's assigned teachers spe-
cifically state that those individuals are admitted in order to perform pe-
dagogical duties for the Employer. We find, therefore, that the bare fact
that the assigned teachers hold "A-2" visas does not establish that their
employer, within the meaning of Sec. 2(2) of the Act, is the Federal Re-
public of Germany. Of course, the immigration status of the assigned
teachers does not alter the fact that they, as employees in this country,
are entitled to the protections of the Act. iVL. RB. v. Actors' Equity Asso-
ciation, 644 F.2d 939 (2d Cir. 1981), enfg 247 NLRB 1193 (1980)
'" See British Rail-International. Inc., 163 NLRB 721 (1967), and AGIP,
USA. Inc., 196 NLRB 1144 (1972)
" State Bank of India, supra at 842
" Alcoa Marine Corporation. supra: S K Products Corp., supra.
inter alia, the Fair Labor Standards Act, workers'
compensation and unemployment compensation
laws, state and local safety, health, and zoning reg-
ulations, and regulations of the Maryland State De-
partment of Education, discussed supra.2 0 The Em-
ployer's articles of association, relevant portions of
which are set forth above, provide that it shall be
operated by the membership of the German School
Society and a school board elected by that mem-
bership. The school's chief operating officer, its
principal, and its teachers and other employees are
hired and fired2 t by the school board, and, as dis-
cussed above, are employees of the Employer-not
the government of a foreign sovereign.
In sum, inasmuch as the employees involved in
this proceeding are employed within the United
States by the Employer and such Employer is en-
gaged in commerce within the meaning of the Act,
we find and conclude that it will effectuate the
purposes of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATION
The Employer contended at the hearing that nei-
ther the Petitioner nor the Intervenor is a labor or-
ganization within the meaning of the Act because
some of their members are employed by the gov-
ernment or school system of the Federal Republic
of Germany. The Petitioner and the Intervenor
contend that they are labor organizations within
the meaning of the Act. The record reveals that
the Petitioner and the Intervenor admit employees
to membership, that employees participate in the
activities of both organizations, and that both orga-
nizations exist for the purpose of representing em-
ployees regarding the betterment of the terms and
conditions of their employment. The officials of
both the Petitioner and the Intervenor were elected
by the employees in secret-ballot elections, and
both organizations have negotiated, or have at-
tempted to negotiate, on behalf of their members
with the Employer. Since the Petitioner and the
Intervenor are willing to represent employees and
exist for the purpose of dealing with employers
concerning wages, hours, and other terms and con-
ditions of employment, we find that both the Peti-
tioner and the Intervenor are labor organizations
° See S K Products Corp., supra at 1213.
The Employer relies on the fact that no United States income taxes are
paid by the assigned teachers. We find, however, that this evidence is en-
titled to little weight We will not speculate as to the reason or reasons
that such taxes are not withheld or paid It seems equally plausible that
no such taxes are payable because the income is received or "realized" in
the Federal Republic, as for any other reason advanced by the Employer
In any event, we are unwilling to ascnbe any probative value to evidence
on this issue absent an official interpretation from the Internal Resenue
Service.
21 In the case of assigned teachers, the school board may ask that the
Central Office recall the teacher from the school
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of the Act. Bally's Park Place,
Inc., 257 NLRB 777 (1981); Roytype, Division of
Litton Business Systems, Inc., 199 NLRB 354 (1972);
Gino Morena, d/b/a Gino Morena Enterprises, 181
NLRB 808 (1970). 22
Ill. THE QUESTION CONCERNING
REPRESENTATION
A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
The Employer contends there is a contract bar
to the election requested by the Petitioner by
virtue of a collective-bargaining agreement alleged-
ly in effect between the government of the Federal
Republic of Germany and certain labor organiza-
tions in the Federal Republic covering the Em-
ployer's assigned teachers. We find that no such
bar exists. Initially, we note that it is well settled
that the party asserting that a contract is a bar to
an election bears the burden of proving the facts
establishing the applicability of the contract-bar
doctrine. Roosevelt Memorial Park, Inc., 187 NLRB
517 (1970); Appalachian Shale Products Co., 121
NLRB 1160 (1958); Bo-Low Lamp Corporation, 111
NLRB 505 (1955). Here, the Employer failed to
satisfy that burden. Thus, as discussed above, the
"collective-bargaining agreement" alleged as a bar
in the instant case was not the fruit of collective
bargaining, but rather was unilaterally imposed by
the government of the Federal Republic and en-
acted into law. Further, the asserted "collective-
bargaining agreement" covers only Beamter civil
servants employed by the Federal Republic or its
constituent States. The Employer's assigned teach-
ers, however, have all taken leaves of absence from
their positions in the Federal Republic and are em-
ployed in this country by the Employer. Moreover,
the asserted "collective-bargaining agreement"
merely enumerates the financial compensation to be
paid to certain employees. In order to constitute a
bar, a contract "must contain substantial terms and
conditions of employment deemed sufficient to sta-
bilize the bargaining relationship; it will not consti-
22 We note that the Intervenor did not intervene in this proceeding
until the latter portion of the hearing, was represented in common by the
Petitioner's counsel, and waived all rights to examine and cross-examine
witnesses. We further note that the officials of the Petitioner and the In-
tervenor are nearly identical. Also, the Intervenor appeared in this pro-
ceeding only when an issue arose as to whether it was dominated by the
Employer. Under these circumstances, and since the record does not
clearly reflect that the Intervenor wishes to appear on the ballot along
with the Petitioner, we shall not place the Intervenor on the ballot of the
elections we direct infra. However, in the event that the Intervenor de-
termines that it wishes to appear on the ballot, an appropriate motion
may be directed to the Regional Director for Region 5. Said Regional
Director shall be, and he hereby is, authorized to rule on the said motion
and, in his discretion, amend the Direction of Elections accordingly.
tute a bar if it is limited to wages only .... " Ap-
palachian Shale Products Co., supra at 1163-64.
While it is thus apparent that no contract bar pres-
ently exists, the Employer further contends that
one of the German labor organizations representing
Beamter civil servants (the GEW) has expressed an
interest in also representing certain of the Employ-
er's locally hired teachers. However, since the Em-
ployer concedes that no collective-bargaining
agreement covering such employees yet exists,
there is no bar. Appalachian Shale Products Co.,
supra at 1162. Accordingly, we find that neither
the asserted "collective-bargaining agreement" ap-
plicable to the Employer's assigned teachers nor
the asserted interest of the German labor organiza-
tion in representing certain locally hired teachers
constitutes an obstacle to the election sought by
the Petitioner.23
IV. THE APPROPRIATE BARGAINING UNIT
The Petitioner seeks to represent a unit of all
full-time and regular part-time employees employed
by the Employer, including German-assigned and
locally hired teachers, bus drivers, building engi-
neers, maintenance assistants, counselors, librarians,
librarian aides, and secretaries, but excluding life
guards, confidential employees, guards, and super-
visors as defined in the Act. Alternatively, the Peti-
tioner is willing to proceed to an election in any
other unit or units found appropriate. The Employ-
er contends that there must be three separate units:
(1) assigned teachers; (2) bus drivers; and (3) all
other employees sought by the Petitioner.
As discussed in detail previously, the Employer's
assigned teachers are paid salaries and other com-
pensation as mandated by applicable laws of the
Federal Republic of Germany. The record reveals,
however, that in almost every other relevant con-
sideration the assigned teachers share a community
of interest with the Employer's locally hired em-
ployees. Thus, the assigned teachers perform the
same duties as locally hired teachers, are super-
vised by the same individuals as the locally hired
teachers, work side by side with the locally hired
teachers and other employees, work the same
hours as the locally hired employees, and have the
same interests in other vital employment matters in-
cluding personal liability insurance, subject assign-
ments, student discipline, grade assignments, home-
room assignments, promotions to department head
positions, hiring and firing procedures, contract re-
newal procedures, curriculum changes, and modifi-
cations to the school calendar. Accordingly, we
3' Thus, we find it unnecessary to decide whether our contract- bar
rules are applicable to extraterritorial collective-bargaining agreements.
1256
THE GERMAN SCHOOL OF WASHINGTON, D.C.
find that the assigned teachers share a community
of interest with the Employer's locally hired teach-
ers and other employees, and thus we shall include
them in the overall unit.
With respect to the bus drivers, however, the
facts reveal a lack of commonality of interests with
the Employer's other employees. The bus drivers
work different hours from other employees, are
paid on a weekly basis rather than the monthly
basis of other employees, are separately supervised,
are rarely in contact with other employees, have
separate lunch, assembly, and bathroom facilities,
and perform their duties under different working
conditions. Thus, we find that the bus drivers share
a separate and distinct community of interest from
the Employer's other employees, and we shall in-
clude them in a separate voting unit.
The parties stipulated, and we find, that the Em-
ployer's principal, business manager, and assistant
principal are supervisors within the meaning of
Section 2(11) of the Act, and should therefore be
excluded from the overall unit. The parties also
stipulated, and we find, that the secretary to the
school board, secretary to the principal, and secre-
tary to the business manager are confidential em-
ployees within the meaning of the Act, and similar-
ly should be excluded from the overall unit. The
parties further stipulated, and we find, that the li-
brarian, all of the teachers, and the counselors are
professional employees within the meaning of Sec-
tion 2(12) of the Act, and are entitled to vote in a
"self-determination" election.2 4 Accordingly, we
shall direct separate elections in the following
voting groups and units:
Unit I
All bus drivers employed by the German
School Society, Washington, D.C., doing busi-
ness as the German School of Washington,
D.C., but excluding all other employees,
guards, and supervisors as defined in the Act.
Unit II
Voting Group (a): All full-time and regular
part-time nonprofessional employees employed
by the German School Society, Washington,
D.C., doing business as the German School of
Washington, D.C., including building engi-
neers, maintenance assistants, librarian aides,
and secretaries, but excluding all professional
employees, life guards, bus drivers, confiden-
2" The Board is prohibited by Sec 9(b)(1) of the Act from including
professional employees in a unit with employees who are not professional
employees unless a majority of the professional employees vote for inclu
sion in the unit
tial employees, guards, and supervisors as de-
fined in the Act.
Voting Group (b): All full-time and regular
part-time professional employees employed by
the German School Society, Washington,
D.C., doing business as the German School of
Washington, D.C, including German-assigned
and locally hired teachers, librarians, and
counselors, but excluding all nonprofessional
employees, confidential employees, guards,
and supervisors as defined in the Act.
The employees in the nonprofessional voting
group (a) will be polled to determine whether or
not they desire to be represented for collective-bar-
gaining purposes by Employees Association of the
German School, Washington, D.C.
The employees in the professional voting group
(b) will be asked two questions on their ballot:
(1) Do you desire to be included in the same unit
as nonprofessional employees for purposes of col-
lective bargaining?
(2) Do you desire to be represented for collec-
tive-bargaining purposes by Employees Association
of the German School, Washington, D.C.?
If a majority of the employees in voting group
(b) vote "yes" to the first question, indicating a
choice to be included in unit II with the nonprofes-
sional employees, the group will be so included. Its
votes on the second question will then be counted
with the votes of the nonprofessional voting group
(a) to decide the representative for the entire unit.
If, on the other hand, a majority of the professional
employees in voting group (b) do not vote for in-
clusion, these employees will not be included with
the nonprofessional employees and their votes on
the second question will be separately counted to
decide whether they want to be represented in a
separate professional unit.
We make the following findings with regard to
the appropriate units:
1. If a majority of the professional employees
vote for inclusion in unit II with nonprofessional
employees, we find that the following two groups
of employees will constitute separate units appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act:
All full-time and regular part-time employees
employed by the German School Society,
Washington, D.C., doing business as the
German School of Washington, D.C., includ-
ing German-assigned and locally hired teach-
ers, librarians, counselors, building engineers,
maintenance assistants, librarian aides, and sec-
retaries, but excluding life guards, bus drivers,
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confidential employees, guards, and supervi-
sors as defined in the Act.
All bus drivers employed by the German
School Society, Washington, D.C., doing busi-
ness as the German School of Washington,
D.C., but excluding all other employees,
guards, and supervisors as defined in the Act.
2. If a majority of the professional employees do
not vote for inclusion in unit II with nonprofes-
sional employees, we find that the following three
groups of employees will constitute separate units
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full-time and regular part-time nonprofes-
sional employees employed by the German
School Society, Washington, D.C., doing busi-
ness as the German School of Washington,
D.C., including building engineers, mainte-
nance assistants, librarian aides, and secretaries,
but excluding all professional employees, life
guards, bus drivers, confidential employees,
guards, and supervisors as defined in the Act.
All full-time and regular part-time professional
employees employed by the German School
Society, Washington, D.C., doing business as
the German School of Washington, D.C, in-
cluding German-assigned and locally hired
teachers, librarians, and counselors, but exclud-
ing all nonprofessional employees, confidential
employees, guards, and supervisors as defined
in the Act.
All bus drivers employed by the German
School Society, Washington, D.C., doing busi-
ness as the German School of Washington,
D.C., but excluding all other employees,
guards, and supervisors as defined in the Act.
[Direction of Elections and Excelsior footnote
omitted from publication.]
1258