Howard University

HOWARD UNIVERSITY Howard University and Local 246, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 5-RC-8757 June 10, 1974 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer William D. Boetticher on December 4, "1973. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the above-entitled matter was transferred by the Regional Director for Region 5 to the National Labor Relations Board for decision. Thereafter, the Petitioner and the Employer filed briefs. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudical error. The rulings are hereby affirmed. Upon the entire record in this proceeding, includ- ing the briefs filed by the parties, the Board finds: The Employer moves to dismiss the petition on grounds that here, as in Temple University, 194 NLRB 1160, there are special considerations which warrant a judgment that the Board should not assert jurisdiction over its operations. Petitioner opposes this motion in reliance on Cornell University, 183 NLRB 329, and Section 103.1 of the Board's Rules and Regulations and undisputed evidence establish- ing, as the Employer concedes, that the University is a private institution with annual gross revenues in excess of $1 million. For the reasons set forth below, we find merit in the Employer's position. Howard University was established as an educa- tional institution under a charter issued to it by the United States Congress in 1867. Its primary purpose is to provide educational opportunities for Black students and other minorities, but without denying its services to others on the basis of race, creed, or national origin. Historically, its operations have been funded, in part, by the Federal Government-at the early stages on an ad hoc basis, and, since 1928, under legislation amending the charter to authorize annual appropriations therefor. To qualify for receipt of funds appropriated by Congress, Howard must accord to the Secretary of Health, Education and Welfare (HEW), or his designee, the "authority to visit and inspect such university and to control and supervise the expenditure therein of all moneys paid ' At the last congressional hearing, the University was required to give specific details on the faculty salary structure by school and by rank 247 under said appropriations." 20 U.S.C. 123. More- over, Howard must be open to inspection by the U.S. Office of Education at least once a year, and the Office of Education must present an annual report to Congress on the affairs of the University. Unlike any other comparable institution, Howard University receives its funds from Congress as a line item in HEW's annual budget. HEW and ultimately the Office of Management and Budget (OMB) determine what amount of the HEW appropriation request will be allocated to Howard, and also the specific programs for which the funds will be requested. Therefore, Howard must prepare an itemized budget request, using the same form as Federal agencies, and submit it along with written justifications to HEW. Officers of the University are called upon to testify concerning Howard's appropri- ation request before OMB budget examiners and the appropriations subcommittees of the House and Senate.' After receiving its appropriations, Howard can expend funds only for the purpose for which they were allocated. The University is subject to annual audits by HEW and the General Accounting Office (GAO). The congressional appropriations are allocated generally in three categories:2 (1) funds for its academic program (excluding the school of religion); (2) funds for Freedmen's Hospital, transferred to Howard from the Federal Government in 1967; and (3) funds for construction. Appropriations for the academic program increased steadily in the years 1965 to 1972 from $9,843,000 to $31,633,000. The percentage of Federal funds in the total academic budget ranged from 49.3 percent to 67.2 percent during these years, with only the 1966 and 1971 appropriations falling below 50 percent of the total academic budget. Appropriations for Freedmen's Hospital during the years 1968 to 1972 ranged from 58.5 percent to 68 percent of the total hospital budget. Although Howard holds title to all its land and buildings, it receives 100 percent of its construc- tion funds (excluding only funds expended for construction related to the school of religion) from the Federal Government. Moreover, construction funds cannot be expended directly. Rather, they are transferred to the General Services Administration (GSA) for selection of the contractor and supervision of constructions. Howard is also required, when expending Federal funds, to purchase any item costing over $2,500 through GSA on a bid basis. Until January 1, 1973, the money for the University's employees' salaries was in the United States Treasury, and the employees' salaries were paid on United States Treasury checks. Although funds are no longer 2 More specific allocations are made within each general category. 211 NLRB No. 11 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kept in the United States Treasury for this purpose, Howard is required to keep the funds in a bank approved by HEW. Salary checks are now issued by the University. It has been and is Howard's policy to maintain comparability between its employees' wages and fringe benefits and those of Federal employees. To this end, the University's nonfaculty employees are classified under the same wage scales that the Federal Government uses to classify similar employ- ees. Each time that Federal Government employees have received an increase in their rates of pay, Howard has requested additional appropriations to achieve parity for its. employees and these requests have always been granted. Nonfaculty employees receive the same annual and sick leave benefits as the Federal employees.3 It appears clear from the foregoing facts that there exists a special relationship between Howard and the Federal Government-one rooted in the historical events associated with the Civil War and plainly founted by the Nation's interest in insuring that Blacks and other members of minority groups shall not be disadvantaged for arbitrary or invidious reasons in pursuing educational goals. Since its establishment in the Nation's capital in 1867, Howard's operations have been continuously subsi- dized by the Federal Government and, in the past several decades at least, in amounts providing the major portion of the University's financial needs. The Federal Government's interest in Howard's financial affairs far exceeds, in degree, that normally associated with the Government's customary funding of specific university projects, and is uniquely characterized by the involvement of several Federal Agencies at several levels. Congressional committees have questioned Howard's officials about the faculty structure of the University by school and rank. Congress' imposition of statutory requirements for inspection and access to Howard's financial records, budgets, accounts, and its physical facilities variously delegate lines of authority to a number of officials of OMB, HEW, and GAO, among others. Facilitated, perhaps, by the location of the University within the seat of the Federal Government, implementation of these statutory requirements is accomplished, to a large extent, through the medium of personal conference and consultation between the Federal officials authorized to oversee various aspects of Howard's financial operations and the university officials responsible therefor, with resulting benefits to the University as such and the important public interest in its institutional services. We note, for 3 Congress has provided that the employees of Freedmen's Hospital, who were employed before the Government transferred the hospital to Howard, may retain their eligibility to participate in the Federal Govern- example, that only recently the officials of the Office of Education of HEW personally inspected the University's library facilities and, in a report based on that inspection, made certain recommendations for construction of additional facilities and the purchase of additional books. Using that report as a justification, Howard sought and received additional funds from the Congress for the recommended purposes. The interrelationship between the Federal Govern- ment and Howard and cognizance of the important national interests which formed its base have unquestionably operated as moving factors in How- ard's adoption of personnel policies for its rank-and- file employees closely paralleling those of employees of the Federal Government. Howard has, for many years, customarily provided substantially the same pay scales, pay raises, and sick and vacation leave benefits for all nonfaculty employees as those granted by the Federal Government to its employees. And, until recently, its salary moneys were paid by U.S. Treasury checks. All of the foregoing facts, taken together, persuade us that Howard enjoys a unique relationship with the Federal Government unmatched by any other university to which our discretionary jurisdictional yardsticks apply. We are persuaded, further, that, because of that unique relationship, effective use of the collective-bargaining process by the University and its employees in the manner and for purposes contemplated by the Act would entail the involve- ment of many Federal Agencies-entities over which we, of course, have no jurisdiction. In these circum- stances, we believe it would be inappropriate for us to assert jurisdiction over the University, and, in our discretion, we decline to do so. Accordingly, we shall dismiss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. MEMBERS FANNING and PENELLO, dissenting: This Board decided in Cornell University, 183 NLRB 329, that: [A]ssertion of jurisdiction is required over those private colleges and universities whose operations have a substantial effect on commerce to insure the orderly, effective and uniform application of the national labor policy. In Temple University, 194 NLRB 1160, a majority ment retirement program, and the right to use Federal insurance carriers other than Blue Cross. HOWARD UNIVERSITY 249 of the Board, acknowledging that the university in that case satisfied all the established criteria for assertion of the Board's jurisdiction, found a "unique relationship" between the university and the Com- monwealth of Pennsylvania and concluded therefore that under the "special circumstances of this case" it would not effectuate the purposes of the Act to assert jurisdiction. Now a majority finds in the instant case another "unique" university-government relationship warranting, in its opinion, declination of jurisdiction. The facts are so different and so much less compelling than those in Temple, however, as to suggest that the exception for "special circum- stances" is about to outdistance the rule of general applicablity.4 The majority in Temple concluded that Temple University, although in form a private institution, had in fact become a quasi-public institution provid- ing low cost higher education to Pennsylvania residents. In so concluding, the majority relied on the fact that pursuant to a statute entitled the Temple University-Commonwealth Act the university was designated as an "instrumentality" of the Common- wealth and expressly made a "State-related universi- ty in the higher education system of the Common- wealth," that the Commonwealth has paid for and owns the land and buildings comprising a significant part of the university's physical plant, that one-third of the board of trustees is appointed by elected commonwealth officials, and that the Common- wealth plays a "substantial, if not controlling" part in the university's financial affairs, along with concomi- tant control over its activities. Noteworthy also is the fact that as an "instrumentality" of the Common- wealth, Temple is a "public employer" under Pennsylvania's Public Employees Relations Act. Aside from the financial aid and some measure of governmental policing of the expenditure of funds, none of the facts which made Temple's relationship with the State (Commonwealth) "unique" are present here. There is no evidence that Howard has been required to cede its administrative independence to the public entity upon which it relies for support, and there is no evidence that it has done so. Government funding has been rejected up to now as a sufficient basis for establishing an educational institution as quasi-public and exempt from the Board's jurisdic- tion.5 Rejection of government funding as a basis for declining jurisdiction is the only result consistent with our assertion of jurisdiction over employers in other industries, such as shippers shipping in U.S. 4 Member Fanning would have asserted jurisdiction in Temple and dissented in that case. He would assert jurisdiction over the Employer, for the reasons stated in this opinion. 5 Minneapolis Society of Fine Arts, 194 NLRB 371, Cornell University, supra. In Minneapolis Society the Board did not consider dispositive even the direct payment of employees by the city. In Cornell the Board asserted flag-bearing ships, who receive substantial subsidies from the Federal Government. A ruling to the contrary would be anomalous indeed in view of the regularity with which we assert jurisdiction over government contractors, even those who are totally dependent on government business. It is the standard that we apply to government contractors which provides the only sound basis for determining whether it would effectuate the purposes of the Act to assert jurisdiction. Certainly the Government exerts no greater control over the overall operations of Howard University than it does over the manner in which certain of its contractors or recipients of its subsidies perform their specified functions. The proper question to be asked, there- fore, is whether enough authority over labor relations is lodged in the University to enable a satisfaction of bargaining obligations under the Acts The only bargaining obligations which the proceeding before us could create, it should be remembered, are limited to the terms and conditions of employment of the full-time faculty members of the law school. Significantly, the majority relies on Howard's wage and benefits policies regarding its nonfaculty em- ployees. The only specific reference to governmental interest in faculty matters is the majority's statement that "Congressional committees have questioned Howard's officials about the faculty structure of the University by school and rank." Surely this cannot justify declination of jurisdiction. Greater detail is given as to the University's maintenance of compara- bility in wages and fringe benefits between its nonfaculty employees and Federal employees. Ex- cept for a statutory continuation of certain benefits to employees of Freedmen's Hospital who were formerly Federal employees, however, Howard is not specifically restricted in any way with regard to personnel or labor relations policies. Its current practice of tracking certain Federal employees policies is analogous to the practice of any private employer who chooses to remain competitive in the labor market with the industry leaders by such tracking. Whatever Howard's reasons may be, it is a choice, not a compulsion. In short, no showing has been made that Howard has so little discretion in the conduct of its labor relations, even among employees outside the unit requested here, as to negate the jurisdiction over "contract" colleges which are publicly acknowledged as state institutions, funded by the State. Cornell also had research contracts amounting to $26 million from various agencies of the Federal Government 6 Herbert Harvey, Inc v. N.L.R.B., 424 F.2d 770, 778 (C.A.D.C. 1969), enfg. 171 NLRB 238; N.LR.B. v. E. C. Atkins & Company, 331 U.S. 398, 412-414; Marianas Stevedoring & Development Co, Inc, 182 NLRB 1043. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits of collective bargaining recognized by the Act.7 But beyond ignoring the precedent that we think is applicable to this case, the majority has ignored the fact that the University already engaged in collective bargaining with several employee groups, including organizations of its nurses, plumb- ers, and plant maintenance employees, and that it has negotiated collective-bargaining agreements with these unions which are currently in effect. Do we know enough to conclude that this collective-bar- gaining activity has been an exercise in futility? Regardless of whether collective bargaining has yet come to Howard, but bearing in mind that it has, what legitimate interest is served by declining jurisdiction? The majority states that here effective collective bargaining as contemplated by the Act would entail the involvement of many Federal agencies over which we have no jurisdiction. Who then would, or should, have jurisdiction over collec- tive bargaining between the University and its employees? The employees are not public employees as the employees of Temple University are, so they could not come under either a Federal or a District of Columbia public employment relations arrange- ment, statutory or otherwise. This Board assumes plenary jurisdiction over private sector labor relat- ions in the District of Columbia, so there is no foreseeable possibility of a District agency coming into existence which could assert jurisdiction. What has been created here is a permanent no-man's land, 7 Cf. cases cited in fn. 6, supra; Great Southern Chemical Corporation, 96 NLRB 1013; Geronimo Service Company, 129 NLRB 366. 8 Cornell University, supra. 9 E.g., Seattle Real Estate Board, 130 NLRB 608. a result manifestly contrary to the thrust of Section 14(c) of the Act.8 This distinguishes the instant case from those in which the Board has declined to assert jurisdiction because the business involved was considered to be essentially local in nature9 or in which state assertion of jurisdiction was thought to be preferable.10 But leaving aside the particular circumstances which make declination of jurisdiction so pointedlyunsuit- able here, the majority's reasoning, resting as it does on the "involvement" of governmental agencies over which this Agency has no jurisdiction, opens the door to a whole new sphere of labor relations not subject to any legislative attempts at comprehensive regulation. For if state labor relations agencies follow the same rationale, they will also decline jurisdiction wherever other governmental agencies are sufficient- ly "involved" in the financial affairs of private employers, regardless of who actually conducts their labor relations. In Cornell we changed our policy regarding the assertion of jurisdiction over private universities, realizing that increased Federal financial involve- ment was a significant factor favoring assertion.11 Now the majority declines jurisdiction because the Federal involvement is too substantial. We think the Cornell approach is the right one, and, except in situations where the Government is in effective control of the conduct of labor relations as spelled out in prior decisions, we would follow it. 10 E.g., Centennial Turf Club, Inc., 192 NLRB 698. 11 Accord: Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266, 267 (assertion of jurisdiction over proprietary hospitals).