The Windsor School, Inc.

THE WINDSOR SCHOOL, INC. 457 The Windsor School, Inc.,' Petitioner and United Fed- eration of Teachers, Local 2, American Federation of Teachers, AFL-CIO. Case 29-RM-321 September 29, 1972 DECISION AND ORDER On February 10, 1972, the Regional Director for Region 29 dismissed Employer's petition herein on the ground that Employer's operations do not meet the Board's jurisdictional standards for private educa- tional institutions 2 On March 7, in accordance with the National Labor Relations Board's Rules and Reg- ulations and Statements of Procedure, Series 8, as amended, the Employer filed a timely appeal to the Regional Director's dismissal on the ground that Em- ployer is a private profit making institution and there- fore the jurisdictional standard for private nonprofit colleges or universities is not applicable. On May 1, the Board reinstated the petition and remanded the proceeding to the Regional Director for hearing. Pur- suant thereto, a hearing was held before Hearing Offi- cer Jerome Katz on May 18 and 26 and June 2, 1972. Following the hearing, pursuant to Section 102.67 of the Rules and Regulations and by direction of the Regional Director for Region 29, this case was trans- ferred to the Board for decision. Thereafter, the Em- ployer and United Federation of Teachers, hereinafter called the Union, filed briefs, which have been duly considered. The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board finds: At the May 18, 1972, hearing, Martin Cohen tes- tified that he is headmaster of The Windsor School; that it is a proprietary profit organization which has a gross annual revenue between $500,000 and $600,000 derived from student tuition, weekend cram courses, sale of books, and other miscellaneous items associated with a school; and that it does not provide living quarters or dining facilities. Cohen further testi- fied that Employer has five out-of-state students and has received $10,000 in tuition fees from foreign coun- tries. At the June 2 hearing, however, Cohen testified that Employer's annual income is less than $500,000, and in substantiation produced a letter dated June 2, 1972, from Employer's accountant stating that the The names of the Employer and Union appear as corrected at the hear- The Union filed a petition for the employees involved herein with the New York State Labor Relations Board on January 12, 1972, 2 weeks before the Employer filed the petition herein . Apparently, no action has been taken by the New York Board. gross income of The Windsor School for the fiscal year ended March 31, 1972, was less than $500,000. According to Cohen, there are approximately 220 stu- dents who pay tuition and fees ranging from $1,500 to $1,900 per student. At the May 18 hearing, Cohen testified that The Windsor School also derived annual revenue of ap- proximately $60,000 from the weekend cram courses which it conducts for students from other schools. However, on June 2, Cohen testified that The Wind- sor School does not receive any income from weekend cram courses; that a copartnership composed of Co- hen and Phillip Stewart, which was formed in 1967, operates the weekend cram courses and that there is no joint-employer relationship.' Cohen also testified that the partnership owns a majority of the corporate stock; that he, Stewart, and his wife Joyce own the corporation; that the partnership uses the school's facilities, but keeps separate books and records, ad- vertises separately, has a different student body, and has different teachers. Cohen testified that there are 14 regular full-time teachers and 5 regular part-timers at The Windsor School, and that there are approxi- mately 25-30 teachers for the weekend cram courses. Cohen testified that Employer expects to conduct a course in driver and traffic safety education in Sep- tember 1972, and that it anticipates an enrollment in this course of 700 students paying $125 per course. The only documentation Employer produced as to this program consisted of copies of application blanks from the State Department of Education which had not been filled in with information required for ap- proval of the program. Cohen testified that Employer has not yet advertised the program, and has not ob- tained cars or teachers. He also testified that he did not know whether there would be a summer shcool program in 1972, but that there would be one in 1973. Employer did not produce evidence of actual purchases made during the past year. The union ac- cepted Employer's statement that the school's pur- chases did not exceed $50,000, of which $9,600 consisted of books purchased from out-of-state source- 4 In its brief, the Employer contends that the Board should adopt a jurisdictional standard for pri- vate schools operated for profit which is in line with the standard adopted for other community service industries. In support, the Employer cites cases estab- lishing a gross volume jurisdictional standard of less than $500,000, and claims that its operations call for a similar test.' On the other hand, the Union contends 3 The Union took the position that there is a joint-employer relationship. 4 Pursuant to the Union's request for a subpena, the Employer agreed to produce books and records on June 2, showing the total annual income, as well as a list of purchases . At the June 2 hearing, however, Employer faded to produce any books or records. The Employer cites the $ 100,000 standard established in Butte Medical Continued 199 NLRB No. 54 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Board should apply the standard applicable to nonprofit educational institutions as set forth in Shattuck School, 189 NLRB No. 118, and dismiss the petition for lack of jurisdiction. Heretofore, the Board has not established a spe- cific standard applicable to private, for-profit, educa- tional institutions. However, jurisdiction has been asserted over employers engaged in educational activ- ities operating on a profit basis, whose annual reve- nues are at least $500,000. Thus in National College of Business, 186 NLRB No. 76, the Board applied the retail standard in asserting jurisdiction over a private profitmaking school engaged in secretarial and busi- ness skill training. It is also significant that the Board , has, in establishing the standard governing nursing homes, refused to draw a distinction between their profit or nonprofit status. See Drexel Home, Inc., su- pra at 1047. With these principles in mind, we are not sat- isfied, on the present state of the record, that an adequate showing has been made to warrant present examination as to the appropriateness of a distinction, which we declined to make in Drexel Home, Inc., supra, between profit and nonprofit institutions. And, in any event, the Employer's operations are neither Properties, d/b/a/ Medical Center Hospital, 168 NLRB 266, involving pro- prietary hospitals, University Nursing Home, 168 NLRB 263, and Drexel Homes, Inc., 182 NLRB 1045, involving profit and not-for-profit nursing homes, Visiting Nurses Association, Inc, 188 NLRB No. 21, involving a nonprofit nursing service, and Mistletoe Operating Company, 122 NLRB 1534, involving office buildings The Employer also relies upon Charleston Transit Company, 123 NLRB 1296, applicable to local transit systems with a gross volume of business of at least $250,000 per annum, Belleville Employ- ing Printers, 122 NLRB 350, involving newspapers subscribing to interstate news services whose revenues exceed $200 ,000 annually, Raritan Valley Broadcasting Company, Inc, 122 NLRB 90, involving radio and television broadcasting stations with a gross volume of $100,000 per year. sufficiently akin to, nor marked by a like degree of interstate transactions as those activities to which the Board has applied a jurisdictional standard less than $500,000 per annum. We are confronted in this case with an operation essentially local in character. Al- though the Board may assert jurisdiction over such enterprises, if they have a substantial impact on the free flow of commerce, we are not prepared at this time to find that a private, secondary, for-profit ed- ucational institution with gross revenues of less than $500,000 per annum has the requisite potential for a disruption of commerce across state lines if the busi- ness immediately involved were disrupted as a result of a labor dispute. For these reasons, and as the Employer's gross annual revenues are less than $500,000,6 we find that the Employer's volume of business is insufficient to meet the minimum amounts required for an assertion of jurisdiction. Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition filed in Case 29-RM-321, by The Windsor School, Inc., be, and it hereby is, dismissed. 6 While the Employer's expected operations may involve increased reve- nues sufficient to warrant an assertion of jurisdiction in the future, we find on the record before us that they are too speculative and insubstantial to support a finding that it would effectuate the policies of the Act to assert jurisdiction on the basis thereof . Southland Cotton Oil Company, 110 NLRB 433; Aroostock Federation of Farmers, Inc, 114 NLRB 538, in which the Board held that jurisdiction is determined without regard to speculative changes in an employer's business or employer's predictions as to its future operations