United Services for the Handicapped

National Labor Relations Board - Board Decisions

Dec 21, 1978

239 N.L.R.B. 976 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Services for the Handicapped and Retail
Clerks International Union, Local No. 698, AFL-
CIO, Petitioner. Case 8-RC-11252
December 21, 1978
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On April 10, 1978,' the Acting Regional Director
for Region 8 administratively dismissed the petition
filed on March 1 in the above-entitled proceeding,
finding that the Employer was initimately connected
with the exempted functions of governmental entities
and that political subdivisions of the State of Ohio so
substantially controlled the Employer's functions
that it shares their exemption from the Board's juris-
diction. Thereafter, on May 9, Petitioner, pursuant to
Section 102.67 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
filed its timely Request for Review of the Acting Re-
gional Director's administrative dismissal of the peti-
tion, contending that he erroneously declined to as-
sert jurisdiction herein. On May 15 the Employer
filed a brief in opposition. On June 13 the Board
issued a "Ruling on Administrative Action" in which
it directed that the petition be reinstated, the case be
remanded to the Regional Director for hearing, and
thereafter the case be transferred to the Board for
decision.
Pursuant to the Board's direction, a hearing was
held on August 24 and 25. At the close of the hear-
ing, this case was transferred to the Board and both
Petitioner and the Employer submitted briefs.
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 rul-
ings 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
proceeding, including the briefs of the parties, and
hereby finds as follows:
1. The Employer, United Services for the Handi-
capped (herein also referred to as USH), is a nonpro-
fit corporation operating under the laws of the State
of Ohio. It is a United Way agency which operates
both a preschool for children, aged 2 through 5 with
learning disabilities, and a transportation division,
which serves its own school, the Akron Headstart
I All dates herein refer to 1978.
program, and clients of Akron area public service
agencies. Petitioner seeks a unit of the transportation
department employees employed by the Employer.
Petitioner essentially contends that the Board
should assert jurisdiction over the Employer as it ex-
ercises sufficient control over employment condi-
tions of its employees to enable it to engage in mean-
ingful collective bargaining and thus does not share
the statutory exemption of any governmental subdi-
vision within the meaning of Section 2(2) of the Act.
To the contrary, the Employer contends that the
Board should not assert jurisdiction over it and
should dismiss the petition, since its services are so
intimately related to the function of institutions ex-
empt under Section 2(2) of the Act as to partake of
their exemption, and because the foundation and na-
ture of the Employer's services are so controlled by
various governmental entities that it does not have
independent effective ability to bargain over essen-
tial employment conditions. We find that the Em-
ployer's contentions lack merit.
As noted, the Employer, USH, provides preschool
educational services to children with learning disabil-
ities and also provides transportation services to its
own school and to other public service agencies
which are operated for the benefit of those Akron
area residents who are mentally or physically handi-
capped, or who are otherwise disadvantaged. Its
board of directors consists of representatives of the
Akron School Board and cther public agencies.
USH's own educational function is to aid children
with developmental disabilities to bring them to an
educational level which will enable them to enter the
public school system at the correct age. USH also
contracts with the Summit County Welfare Depart-
ment and the city of Akron which send a set number
of pupils to its educational program. USH transports
children to its own educational program and also
provides transportation services, usually pursuant to
contractual arrangement with, inter alia, the follow-
ing groups: Summit County Headstart; United Cere-
bal Palsy, which operates a school; Area Agency on
Aging, a United Way agency; and Cuyahoga Valley
Mental Health, a federally funded nonprofit institu-
tion. Directly or indirectly, the Employer receives
virtually all of its funding from state and Federal
sources, primarily pursuant to Title III and Title XX
of the Social Security Act.
On the basis of the record before us, contrary to
the Employer, we cannot conclude that its transpor-
tation function is one that has been historically fur-
nished by the city, county, or State. Thus, the Em-
ployer cannot be said to be performing the type of
essential governmental service that a city, county, or
State would normally be required to provide. That
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UNITED SERVICES FOR THE HANDICAPPED
state law may mandate educational services for the
handicapped does not alter our conclusion that the
Employer's transportation function is not traditional-
ly an exclusively governmental service. Accordingly,
we conclude that there is no basis here for declining
jurisdiction on the ground that USH is, or is part of,
an exempt governmental agency.2 Moreover, the fact
that the Employer is a nonprofit and noncommercial
entity does not constitute a proper basis for declining
jurisdiction.3 The inquiry thus focuses on whether the
agencies with whom USH contracts to render ser-
vices exercise sufficient control over the terms and
conditions of USH employees so as to render them
incapable of engaging in effective collective bargain-
ing with a labor organization.
From an analysis of the record evidence, it appears
that agencies with which USH contracts regarding
both its education and transportation functions, in-
cluding state and Federal governmental entities, es-
tablish guidelines to be followed by USH in the per-
formance of its services and also exercise an
oversight role which includes such items as program
descriptions, program goals, liability insurance levels,
buses and equipment, scheduling, publicity, confi-
dentiality, service recipient eligibility and evaluation,
and reporting and auditing. In addition to the fore-
going, which relate primarily to the type and quality
of service to be rendered, the record reveals the fol-
lowing regarding employee wages, hours, and terms
and conditions of employment: the Employer exer-
cises its discretion in establishing qualifications for
employment and likewise exercises its discretion in
deciding which job applicants to hire and how many
to hire. USH also promulgates and enforces its own
work rules and has a free hand in disciplining its
employees. USH has established its own employee
grievance procedure and can increase wages when it
determines to do so. The Employer can reassign
transportation employees from one component to
another based on staffing requirements. USH also
2 Catholic Bishop of Chicago, A Corporation Sole. Department of Federal
Programs, 235 NLRB 776 (1978).
3The Rhode Island Catholic Orphan Asylum. a/k/a St. Alovsius Home. 224
NLRB 1344 (1976).
4The Employer is under contract with the city of Akron to hire six em-
ployees under the Comprehensive Employment Training Act (CETA) and is
also under contract with the Summinut County Welfare Department to hire
three Aid to Dependent Children (ADC) recipients. USH has the authority
to reject job applicants referred under both the CETA and ADC contracts.
Similarly, its authority to discipline employees hired under these programs is
unfettered except that in the case of discharge of CETA employees it must
notify CETA program officials and explain the reasons for discharge. The
only pay restriction regarding CETA and ADC employees is that the, must
be treated on a par with other employees with regard to entr>-level pay and
subsequent pay raises
pays workmen's compensation on its employees, has
established a hospitalization insurance plan, has pro-
vided a pension plan, pays all employees with its own
payroll checks, sets the hours of employment, estab-
lishes paid holidays, schedules vacations. assigns
overtime, establishes its own sick leave policy, and
sets its own dress code. From this review of the rec-
ord, it is abundantly clear that the Employer exercis-
es sufficient control over the terms and conditions of
employment of its employees to enable it to engage
in meaningful collective bargaining and on this basis
we find no cause to decline jurisdiction.
The parties stipulated, and we find, that in 1978
the Employer will have gross annual revenues in ex-
cess of $880,000 and will make purchases directly
from points located outside the State of Ohio of at
least $3,000. The record also shows that the Em-
ployer will purchase goods valued in excess of
$50,000 indirectly from points located outside the
State of Ohio. Of the $880,000 gross annual revenues.
approximately $620,000 is allocated to the Employ-
er's transportation department. Based upon these
facts, we find that the Employer's operations affect
commerce within the meaning of the Act and that it
will effectuate the purposes of the Act to assert juris-
diction herein.'
2. The parties stipulated, and we agree, that Peti-
tioner is a labor organization within the meaning of
Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(l) and Section
2(6) and (7) of the Act.
4. The parties stipulated, and we agree, that the
appropriate unit consists of:
All full-time and regular part-time bus drivers,
dispatchers and maintenance men, but exclud-
ing all office clerical employees and professional
employees, guards and supervisors as defined in
the Act.
Accordingly, as we have determined that it is prop-
er to assert jurisdiction over the Employer's opera-
tions and no further issues remain to be resolved, we
shall direct an election in the unit found appropriate
herein.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
*We find that the Employer satisfies the jurisdictional standard for das
care enterprises, Salo & Pepper Nursers School & Kindergarten N 2. 222
NLRB 1295 (1976) (then-Member Fanning dissenting) and the jurisdic-
tional standard for transit systems, Charleston 7ransir Companr. 123 NL RB
1296 ( 1959)
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