The Krebs School Foundation, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Krebs School Foundation, Inc. and Local 925, Service Employees International Union, AFL-CIO, Petitioner. Case I RC 15869 July 18, 1979 DECISION AND DIRECTION OF ELECTION. BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAI.E Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Patricia W. Kieval. Following 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 Regional Director for Region I, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer and the Peti- tioner filed 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 pro- ceeding, including the briefs of the parties, and hereby finds as follows: 1. Employer, The Krebs School Foundation, Inc., is a private nonprofit corporation operating under the laws of the Commonwealth of Massachusetts. It is engaged in providing educational services to approxi- mately 118 special needs children between the ages of 6 and 14 who are slow learners and unable to func- tion properly in a normal classroom. The school is operated on a year-round daytime basis with classes held from 8:30 a.m. to 3 p.m. The classes are ungrad- ed and the children are grouped together by age. Prior to 1974 approximately 50 percent of the stu- dents were privately enrolled at the school, and the others were enrolled under state statutory provisions. Since that time private enrollment has decreased to about 10 percent of the school student body. The ma- jority of the students are enrolled at the school and their tuition funded under state statutes mandating the provision of special education to children with physical or mental handicaps or disabilities. Under such statutes the Commonwealth of Massachusetts has required the school committees of each city, town, or school district to provide this special educa- tion either through their own facilities or by contract- ing with private schools such as the Employer. The Employer contends that the Board should not assert jurisdiction over it because it is an adjunct of the exempt public school system and is intimately connected with the exempt function of the state and local governments to provide special education. In support of this contention it presented evidence con- cerning various controls which government agencies maintain over its operations under chapter 766 of the applicable state statute including, inter alia, that tu- ition rates for publicly funded students are set by the Commonwealth's rate setting commission (although the Employer can charge a higher tuition to the pri- vate students): that applications for approval of a pri- vate school under chapter 766 must be renewed annu- ally: that student-teacher ratios must not exceed eight to one: that certain courses taught in public schools must be taught in the private school; and that certain health and safety requirements must be met at the facility. Although the evidence shows that the Employer must meet certain requirements in order to qualify for the placement of' students under state or local public funding, in our opinion it does not show that the school is an adjunct of the exempt public school sys- tem. First, it does not have to accept students referred under chapter 766 and does, in fact, accept other stu- dents whose tuition is privately funded. Further, the evidence shows that except for setting minimum re- quirements, the government does not dictate what physical facilities the Employer maintains, its hours of operation, its personnel policies, salaries, or any of its da'v-to-da\ operations. The fact that the school performs an educational function for the Common- wealth of Massachusetts which, by law, is required to guarantee an education to each child does not make the school an adjunct of the public school system.' Nor is the Employer's contention that it is "inti- mately connected" to the state and local governments a ground for declining jurisdiction. As the Board stated in Natiional Tran.sportation Service, Inc.,2 it will no longer consider the so-called intimate connection test in ascertaining whether to assert jurisdiction over an employer. Rather, if an employer meets the defini- tion of "employer" under the Act and has sufficient control over the employment conditions of its em- ployees to enable it to bargain with a labor organiza- tion as their representative, we will assert jurisdiction. The evidence here shows that the Employer hires and fires its own employees and sets their hours of work, salaries, supervision, and their other working condi- tions without outside interference. Accordingly, we conclude that the Employer retains sufficient control i Au.tin Deelopmenrtal ('enter, In., 226 NI.RB 134 (1976). 2240 NLRB 565 11979). 243 NLRB No. 79 514 KREBS SCH't(X)I. FOt[NDAIION. IN('. over its employees to enable it to engage in collective bargaining with a representative of its employees. The Employer further contends that the Board should not assert jurisdiction over it because it did not have gross revenues of'$1 million, the Board stan- dard for assertion of jurisdiction over schools. The Petitioner contends that the proper standard to be applied is the $250,000 gross revenue standard that is applied to specialized child care institutions. The students here are being given remedial instruc- tion together with individual tutorial assistance so that they might overcome their learning problems and perhaps be able to reenter the regular public school system. The classes are small, with a maximum ratio of one teacher to eight students and an overall staff-student ratio of three to one. The classes are un- graded. There is conflicting evidence as to whether part of the Employer's purpose is to handle emotion- ally disturbed children. It is clear that at least some of the students suffer from emotional problems. Others, because of perceptual deficiencies, speech problems, socialization problems, etc., have great difficulty learning in a normal classroom atmosphere. They are attending Krebs for possible correction of these prob- lems. In light of the foregoing, we find that the Employer operates a specialized child care institution, and that the $250,000 gross revenue standard for the assertion of jurisdiction should be applied.3 For the fiscal year ending June 30, 1978, the Em- ployer had gross revenues in the amount of $700,000, plus $20,000 in restricted contributions. Of the $700,000, $400,000 was received from various local cities and towns pursuant to chapter 766: $210,000 was received directly from the Commonwealth of Massachusetts pursuant to chapter 750 of the state statute, the predecessor to chapter 766; $60,000 was received from private individuals paying tuition; and $30,000 was received as a Federal grant. The Em- 'Salt & Pepper Nurser3 School & Kindergarten No 2. 222 NLRB 1295 (1976). ployer had purchases for supplies in the amount of $30,000 and testified that less than half of this amount went for the purchase of supplies from outside the Commonwealth of Massachusetts. Based on 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.4 2. The parties stipulated and we find that the 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)(1 ) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the ap- propriate unit consists of: All full-time and regular part-time professional employees including teachers, tutors, specialists, librarians, and the registered nurse, and exclud- ing all other administrative staff, the president, the coordinator of special education, the director of reading and curriculum, maintenance employ- ees, confidential employees, office clericals, sum- mer interns, substitute teachers, temporary and casual employees, supervisors and guards as de- fined in the Act.5 Accordingly, as we have determined that it is proper to assert jurisdiction over the Employer's operation 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 omitted from publication.] ' Chairman Fanning and Member rruesdale would apply a jurisdictional standard of $100.000 for institutions such as the Employer here for the rea- sons set forth in Chairman Fanning's dissent in Salt & Pepper Nursenr School & Kindergarten No. 2, supra rhey find it unnecessary to reach this question in the instant case, however, as the Employer's revenues here meet the higher standard. ' While the Petitioner originally sought to exclude the registered nurse from the unit. in its brief to the Board it expressed the position that that classification should be included. 51s5