Young Men's Christian Assn. of Portland, Oreg.

20 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD As-the Board '; fprther stated it; could 'not overlook the possibility that Storey's physical disability made him unfit to perform his maintenance work at the time his active employment ceased- (December 18, 1962). Accordingly, I consider the question before me to be : Did Storey's physical disa- bility render him unfit to perform his maintenance work at the time his active employment ceased on December 18, 1962 . The backpay specification admitted that Storey was unavailable for employment due to an injury from December 18, 1962, through January 8, 1963 . On January 8, 1963 , Storey's physician reported he was able to stand , walk, or .bend down occasionally, but not frequently , and that he should not work in an awkward position . The record shows and Storey admitted there were times when it was necessary for a maintenance man to work in an awkward position. The Respondent decided ,on January 9, 1963 , that 'he would not be able to perform the full duties of a maintenance man. I therefore find that Storey's physical condition made him unfit to perform main- tenance work at the time his active employment ceased on December 18, 1962, and consequently his right to backpay did not extend beyond the fourth quarter of 1962. The amount of backpay owing by Respondent to David Storey is therefore fixed at the sum of $207 .66 as set forth in Appendix 4, page 2 , of the backpay specifi- cation. The amount of backpay owing to Roger Markle which is not controverted is fixed at the sum of $547.67 as set forth in Appendix 3, page 3, of the backpay specification. RECOMMENDED ORDER It is hereby recommended that the Board adopt the foregoing findings and con- clusions and order the ' Respondent to pay Roger Markle .the sum of $547.67 and David Storey the sum of $207.66. Both sums are to bear interest at the rate of 6 percent as, directed by the Board. Young Men's Christian Association of Portland, Oregon and Office Employees International Union, AFL-CIO, Local No. 11. Case No. A 0-71. February 17, 1964 ADVISORY OPINION . This is a petition filed on December 26, 1963, by Young Men's Christian Association of Portland, Oregon, herein called the Peti- tioner, for an advisory opinion in conformity with Section 102.98 and 102.99 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended. Thereafter, on December 30, 1963, Office Employees International Union, AFL-CIO, Local No. 11, herein called the Union, filed a•response for a petition for Advisory Opinion. By letter dated January 9, 1964, the Petitioner advised that it was not taking a position on the jurisdictional issue herein. In pertinent part, the petition, response, and letter of January 9, 1964, allege as follows : 1. There is presently pending before the Oregon State Labor- Management Relations Board, herein called the State Board, a repre- sentation petition .(Case No. 12-63) filed by the Petitioner alleging that on November 8, 1963, the Union claimed recognition as the bar- gaining representative of the office, clerical, and closely related em= ployees at the Petitioner's several branches and offices within the Metropolitan Portland, Oregon, area. . 146 NLRB . No. 2. YOUNG MEN'S CHRISTIAN .ASSN. OF PORTLAND, OREG. 21. 2.* The Petitioner,, a member of a "world-wide fellowship of youth and adults," is a nonprofit, charitable organization, organized under Oregon law. it is a Christian community-service institution, engaged in 'performing--broad community, educational, and, youth services in the Metropolitan Portland- area. It provides facilities and renders services for the!establishment of summer. camps, clubs, and groups for youths such as some 600 Tri-Hi-Y Clubs. At its six branches, the Petitioner provides physical education facilities, youth counseling, and secondary activities. At one of the branches, it also operates a' coffeeshop and residence facilities which are offered to the young men in conjunction with its program. 3. During the calendar year 1962, `the Petitioner's gross revenue was derived as follows : 1962 1. Membership and service (program) fees ---------- $221,387 2. Special memberships____________________________ 13,656 3. Building rentals (special occasions for local groups) - 13,632 4. Treasurer's fund (trust income)___________________ 33,957 5. Portland United Good Neighbors_________________ 156,000 6. Summer and day camps, World Service, incidental merchandise sales, and miscellaneous income------ 82,920 7. Residence service________________________________ 136,655 8. Coffeeshop ______________________________________ 118,760 During the first .9 months of 1963, the Petitioner's total revenue indi- cated no significant departure from the above figures; and during that period, the Petitioner derived revenue in the amount of $203,441 from its residence service and coffeeshop. 4. The State board has made no findings with respect to the afore- said commerce data. 5. The Union has generally denied the allegations of the petition for Advisory Opinion because of insufficient information to form a belief. 6. Although it does not take a, definite position as to whether the Board should or should not assert jurisdiction herein, the Petitioner appears to imply that the Board should not. Thus, it contends that, under the Board's Columbia University decision,' it is questionable whether, in view of the Petitioner's activities, purposes, and character, the assertion of jurisdiction would effectuate the policies of the Act. The Petitioner further contends that its activities are incident to its broad civic and religious purposes and therefore would not be purely commercial within the meaning of Columbia University doctrine.. On the other hand, the Union contends that, while the Petitioner may be a nonprofit, charitable institution, it is part of a national organiza- tion and is engaged in a commercial enterprise whose operations meet the discretionary standards established by the Board. I The Truateea of Columbia University in the City of New York, 97 NLRB 424. 22 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD 7.. No proceeding involving this same matter is presently pending before the Board. On the basis of the above, the Board is of the opinion that: 1. The Petitioner is a nonprofit, Christian oriented, charitable organization, engaged in the performance of broad community, ed-' ucational, and youth services. in the metropolitan area of Portland, Oregon. 2. A corporation's nonprofit status is not the controlling considera- tion and the Board will not exempt a nonprofit organization from the operation of the Act when the particular activities involved are commercial in the generally accepted sense.2 It has been, however, the Board's general practice to exclude nonprofit institutions from the coverage of the Act when they are engaged in noncommercial ac tivities. Congress was aware of this general practice and indicated its approval thereof when it enacted the Taft-Hartley Act, amended Sec- tion 2(2) to exclude expressly only one category, nonprofit corpora- tions operating hospitals, from the statutory definition of "em- ployer" 8 In the Columbia University case, where a union sought to represent clerical employees of the University's libraries, the Board,. guided by this legislative history, concluded that it would not effectu- ate the policies of the Act to assert jurisdiction "over a nonprofit educational institution when the activities involved are noncom- mercial in nature and intimately connected with the charitable pur- poses and educational activities of the institution." 4 The Columbia University precedent governs herein. The Petitioner is a nonprofit, charitable, community institution and the activities which gave rise to the State board's representation proceeding are intimately con- nected with and incidental to the Petitioners broad basic noncom- mercial, civic, and religious purposes. Under these circumstances, we do not believe it would effectuate the policies of the Act for the Board to invoke its jurisdiction over a nonprofit, charitable, and religiously oriented institution where the activities involved are noncommercial in nature and are intimately connected with the civic, educational,, charitable, and religious activities of that institution. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the al- legations here present, the Board would not assert jurisdiction over the Petitioner with respect -to the activities concerned herein. 2 See Woods Hole Oceanographic ' Institution, 143 NLRB 568, and cases cited in foot- notes 21 and 22; Labor Relations Commission of the Commonwealth of Massachusetts (Massachusetts Hospital Service, Inc.), 138 NLRB 1329. 8H. Rept. 510, 80th Cong., 1st sess., p. 32; 1 Legislative History of the Labor Manage- ment Relations Act, 1947, pp. 505, 536 . See also Woods Hole Oceanographic Institution, supra, footnote 20; The Trustees of Columbia University in the City of New York, supra; Office Employees International ' Union, Local 11 v. N.L.R.B., 353 U.S. 313, 318-319. 4 The Trustees of Columbia University in the City of New York, supra, at 427 ; see also Sheltered Workshops of San Diego, Inc., 126 NLRB 961, 963-964.