Mexican American Unity Council, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1973

207 N.L.R.B. 800 (N.L.R.B. 1973)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mexican American Unity Council, Inc., Employer-
Petitioner and Mexican American Union for
Community Change and Community Service
Workers Association . Case 23-RM-279
December 11, 1973
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Under a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Clayton
Corley. Following the hearing and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 23, this case was
transferred to the National Labor Relations Board
for decision. No briefs were filed by any of the
parties.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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. They are hereby affirmed.
The Board has considered the entire record in this
case and makes the following findings:
1. The Employer, referred to herein as MAUC, is
a nonprofit community development corporation
with offices and principal place of business located in
San Antonio, Texas. MAUC's stated purpose is to
improve economic and social conditions for Ameri-
cans of Mexican descent in its "impact area," the
west and southwest areas of San Antonio. To this
end it is engaged in providing a number of health
care, social service, job training, and economic
development programs. As more fully discussed
below, these programs are funded primarily by
Federal Government and private foundation grants.
MAUC's job training efforts include a program
called New Careers, which is designed to give area
residents an opportunity to obtain college degrees in
social work. MAUC also sponsors a construction
trades training program which is operated with the
cooperation of the San Antonio Building and
Construction Trades Council, and which trained 200
persons in 1972.
The health and social service programs include the
following: the Field Mental Health Program, operat-
ed in conjunction with several other health organiza-
tions and designed to train area residents as
paraprofessionals in the field of mental health; the
Family Health Services Program, which provides
counseling to new mothers concerning available
medical services; and, the Child Mental Health
Program, which provides counseling and referral
services to help prevent mental illness among
children. In addition, MAUC employees counsel
welfare and food stamp recipients and intercede for
them with appropriate agencies-when necessary.
In addition to the above-described nonprofit
programs, MAUC has several wholly owned subsidi-
aries which are incorporated for profit under Texas
law. One of these corporations is Industrias del
MAUC, a holding company whose purpose is to
foster economic development in the impact area by
investing in businesses owned or operated by area
residents. To this end, Industrias has acquired a 40-
percent interest in a housing development consisting
of 23 single-family homes and also owns 5 such
homes outright. Industrias also loaned $69,000 to a
local contractor for a 60-unit apartment project,
called Cheyenne Village, in order to enable said
contractor to obtain the necessary performance
bond. Two other corporations, U.C. Franchise, Inc.,
and U.C. Maintenance, Inc., are owned by Industri-
as. The former owns a 70-percent interest in a
McDonald's franchise. The remaining 30-percent
interest is owned by an area resident who manages
the business and is expected eventually to buy out
MAUC's interest in it. U.C. Maintenance, Inc., is a
janitorial and maintenance service wholly owned by
Industrias. It has a contract to provide janitorial
services for the General Services Administration in
San Antonio. Although Industrias has not yet shown
a profit, when it does become profitable, MAUC
intends to make stock in Industrias available to
residents of the impact area.
The following grants were made to MAUC for
programs covering the 2-year period from January
1972 to December 19731 from private organizations:
$500,000 from the Ford Foundation, to be used for
MAUC's administrative costs, and $100,000 from
Opportunities Industrialization Centers; from vari-
ous Federal agencies: $650,000 from the Office of
Economic Opportunity for economic development,
nearly $205,000 from Model Cities for the construc-
tion trades training program, about $86,000 from the
National Institute of Mental Health for the New
Careers program, and a total of more than $543,000
from the same source for the Field Mental Health,
Child Mental Health, and Family Health Services
programs.
1 While all of these are 1-year grants, they all commence on different
dates, so the years covered by the grants do not conform to MAUC' s fiscal
year.
207 NLRB No. 128
MEXICAN AMERICAN UNITY COUNCIL, INC. 801
The record shows that in the fiscal year which
ended in 1972 the various enterprises engaged in by
MAUC and its subsidiaries had total revenues of
$807,454 and expenditures of $986,351. Part of these
expenditures consisted of $24,915 for travel, includ-
ing some interstate travel of an unspecified amount;
$145,884 for consumable supplies, including
$128,600 for food used in the franchised McDonald's
operation; $17,327 for equipment rental; $12,196 for
telephone services; and $17,380 for advertising.
All parties to this proceeding contend that MAUC,
despite its status as a nonprofit, tax-exempt organiza-
tion, is engaged in substantial commercial activities
which warrant the Board's assertion of jurisdiction.
Notwithstanding that all of the parties at the
hearing contended that MAUC is an employer
engaged in commerce or an industry affecting
commerce within the meaning of the Act, and that it
would effectuate the purposes of the Act to assert
jurisdiction, involved are statutory issues which the
Board must determine independently in each case
before asserting jurisdiction.
The Board has not heretofore had occasion to
consider whether a community development corpo-
ration such as MAUC is an employer within the
meaning of the Act and whether or not it would
effectuate the purposes of the Act to assert jurisdic-
tion. It is, of course, well established that the
nonprofit status of an organization is not the
controlling consideration in determining whether to
assert jurisdiction.2 Although the Act specifically
excludes from the term "employer" only one type of
nonprofit organization, that of hospitals, the Board
has used as a guide, in determining whether to assert
jurisdiction over other nonprofit organizations, the
test of whether they are engaged in activities which
are "commercial in the generally accepted sense." 3
Accordingly, we shall apply that test herein.
Although some of the Employer's programs out-
lined above are educational and others may be
viewed as essentially charitable in nature, there are
still others, notably those operated through the
Employer's subsidiary, Industrias, which are wholly
commercial in character. Upon the entire record in
this case, we are persuaded that the Employer's
nonprofit and profit-making programs are but the
means adopted by it to achieve the primarily
economic and commercial, as well as social and
medical, purposes for which it was especially created.
2 Maritime Advancement Programs, 152 NLRB 348, 350.
3 See Sheltered Workshops of San Diego, Inc, 126 NLRB 961, 963; Woods
Hole Oceanographic Institution, 143 NLRB 568, 572, et seq., and cases cited
therein.
4 The fact that the job program trainees are not being trained for a
particular employer under a labor agreement does not, in our view , render
the training program any less a commercial endeavor. Compare Maritime
Advancement Programs, supra
In reaching this conclusion, we rely on the fact that
the Employer's job training programs are designed to
train local residents to obtain and improve saleable
skills and thus to equip these residents to enter the
job markets and become productive members of
society in general and of the impact area in
particular. We note particularly that the job training
program conducted by the Employer in cooperation
with the San Antonio Building and Construction
Trades Council trained some 200 persons in 1972. By
this program alone, a pool of trained construction
workers was created for the benefit of the companies
operating in the San Antonio area.4
In addition, we rely on the fact that the Employer's
wholly owned subsidiary, Industrias, is directly
engaged in commercial ventures and activities.
Industrias, through its wholly owned subsidiaries,
owns a controlling interest in a McDonald's restau-
rant franchise operation, has substantial investments
in several real estate and housing developments, and
operates a janitorial and maintenance service compa-
ny. The latter has a contract to provide the General
Services Administration in San Antonio with janito-
rial and maintenance services.
Based on these activities and the entire record
herein, we conclude that the Employer only inciden-
tally promotes educational and charitable objectives
and that its various programs are principally directed
toward promoting and advancing commercial activi-
ties.5
With respect to the question of whether the
Employer's operations here are sufficiently substan-
tial to warrant the assertion of our jurisdiction, we
find that they are, and that it will effectuate the
purposes of the Act to assert jurisdiction. As detailed
above, the record shows that the Employer annually
spends substantial sums of money, received in the
form of grants from the Federal Government and
private foundations, to operate its various commer-
cial and eleemosynary programs. These expenditures
are sufficient to meet the Board's self-imposed
standards for nonretail and retail enterprises. And,
although the precise amounts of the Employer's
purchases originating outside the State of Texas is
not clearly ascertainable from the record, we find
that such purchases are sufficient in the circum-
5 This case is distinguishable from Center for Urban Education, 189
NLRB 858, where the Board , in an advisory opinion, held that it would not
effectuate the purposes of the Act to assert jurisdiction over a nonprofit
educational research corporation whose activities are centered on the
problems of urban and suburban elementary and secondary public schools.
In view of the localized focus of the employee's endeavors, the Board
concluded that it was essentially local and had only limited impact on
commerce . Compare also Epi-Hab Evansville Inc., 205 NLRB No 114.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances here to satisfy the requirements of statutory
jurisdictions
Accordingly, we find that the Employer is an
employer within the meaning of Section 2(2) of the
Act, whose operations have a substantial impact on
interstate commerce, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organizations involved herein claim
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties at the hearing, the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees employed in the comptroller's
office and in the planning and evaluation,
manpower , economic development , housing,
health and social services , and new career
programs at the Mexican American Unity Coun-
cil in San Antonio , Texas, excluding all profes-
sional employees , confidential employees , guards,
watchmen, and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
6 Woods Hole supra.