Lutheran Welfare Service of Illinois

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lutheran Welfare Services of Illinois and Child Care Division, Local No. 321 and Local No. 329, Service Employees International Union, AFL-CIO, Peti- tioner. Case 13-RC-13370 February 10, 1975 DECISION AND ORDER By ACTING CHAIRMAN FANNING AND MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, two hearings were held before Hearing Officer Patricia James of the National Labor Relations Board. Following the hearings and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the case was transferred to the Board for decision. Briefs were filed by the Employer and the Petitioner. The Board has reviewed the Hearing Officer's rulings made at the hearings and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case the Board finds: The Employer is an Illinois nonprofit corporation whose purpose is to serve the social welfare needs of the people of that State. Among its services are residential treating centers for children, services to the mentally retarded, counseling services for fami- lies and individuals with adjustment problems, services for the aging, services for alcoholics and drug addicts, and the day care centers in question in this case. The Employer has annual revenues of about $5.6 million and employs 600 persons. The Employer operates the four day care centers which are involved in this proceeding. All of the 350 children enrolled at the centers reside in Illinois. Two of the centers operate Head Start programs and the other two centers take care of children of working families, but both programs are educational and custodial in nature. The children come from low income families and one of the purposes of the program is to provide an early childhood educational experience which will enable the children to compete as they leave the day care centers and go into the public school system. Only 9 children out of 350 pay any fees. The day care programs are funded by the city of Chicago's Model Cities-Chicago Committee on Urban Opportunity-Department of Children Serv- ices (herein Model Cities). The essence of the arrangement between the Employer and Model Cities is that the Employer manages the program and Model Cities pays the bills. The funds originally come from the Federal Government and the budget for the day care centers is approximately $550,000 per year. About $5,000 a year is spent on items purchased directly from sources outside Illinois. The Employer as a whole, however, annually makes purchases of at least $148,000 from out-of-state vendors. Model Cities sets some operational standards for the day care centers. It requires separate bank accounts for the centers' money. The director of the Employer prepares budgets which are submitted to Model Cities. At the same time, the director submits a work program detailing goals, performance, and administrative necessities. Model Cities gives guid- ance in a booklet entitled "Standards for Work Projects Design." It also approves the budgets, monitors the services, establishes detailed descrip- tions for each staff position, and demands monthly reports from each center. The Petitioner introduced evidence as to the scope of day care centers operating in the United States. In 1970, there were 16,000 licensed day care centers with an enrollment of 625,000 children. Approxi- mately half of the licensed centers were proprietary, and half were nonprofit. Enrollment capacity for these centers quadrupled between 1960 and 1970. Some of the larger commercial centers operate multistate. Many industrial and other types of companies operate day care centers for their own employees. At an estimated cost of approximately $1,000 per child, total annual cost of operating day care centers in 1970 exceeded $625 million. The Employer contends that the Board does not have jurisdiction because it is not engaged in interstate commerce. Further, it asserts that it would be inappropriate for the Board to exercise jurisdic- tion because of the close operational nexus between the Employer and the city of Chicago. We find no merit in these contentions. In Young Work4 Inc., 216 NLRB No. 97, issued today, we asserted jurisdiction over an employer operating proprietary day care centers. In Young World we noted that the employer there put emphasis on custodial care which included learning experi- ences for young children. In the instant case the programs are both custodial and educational in nature. In Young World we stated that we were not prepared to establish a jurisdictional standard for day care centers as a class, but that we were satisfied that the employer there was engaged in commerce and that it met every discretionary jurisdictional standard the Board has applied to date. Similarly, in this case we have no doubt that the Employer is engaged in commerce, since its total annual revenues are about $5.6 million and annual purchases from out of State are at least $148,000. It is also clear that in this case the Employer meets every discretionary 216 NLRB No. 96 LUTHERAN WELFARE SERVICES OF ILLINOIS 519 jurisdictional standard we have applied to date. The fact that the Employer is a nonprofit organization is irrelevant as far as our exercise of jurisdiction is concerned.' In support of its argument against the Board asserting jurisdiction, the Employer refers to Pennsyl- vania Labor Relations Board 209 NLRB 152 (1974),2 an Advisory Opinion, in which the Board advised the parties that it would not assert jurisdiction over nonprofit day care centers engaged- in providing preschool minority children with educational train- ing which would enable them to compete with their peers when they entered public school. The Board stated that in the exercise of its discretion it would refuse to assert jurisdiction because the day care centers in that case were an adjunct of the local public school system and therefore essentially local in character. Pennsylvania Labor Relations Board is therefore distinguishable from the present case inasmuch as the day care centers here involved are not operated as an adjunct of the Chicago public school system and their purpose is to provide custodial care for children of working mothers, as well as educational training for the children. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. The present case was transferred to the Board solely to resolve the jurisdiction issue. The record is inadequate to enable the Board to define the appropriate unit. Accordingly, we shall remand the case to the Regional Director for further processing in accordance with this Decision. ORDER It is hereby ordered that the case be, and it hereby is, remanded to the Regional Director for Region 13 for further processing. MEMBER KENNEDY, dissenting: I disagree with the decision of my colleagues to assert jurisdiction over this Employer. In Pennsylva- nia Labor Relations Board, 209 NLRB No. 33 (herein PLRB), Members Jenkins and Penello joined Chair- man Miller in declining to assert jurisdiction over nonprofit day care centers for minority children intended to prepare them for competing with their peers in the local public school system. The Board decided that the operation of such centers was essentially local and that in the exercise of its discretion it should decline to assert jurisdiction over them. I believe that PLRB is indistinguishable from the present case and that, although I did not participate in PLRB, it furnishes sound precedent for dismissing the present petition. The facts in the two cases are virtually identical. Thus, in both cases the employer is a nonprofit corporation. Although in PLRB, the program was not a custodial program but an educational one; and, in this case, the centers are custodial as well as educational, I find the distinction between custodial and educational to be artificial. So-called "custodial" programs inherently have some educational aspects (the children are kept busy 'with drawings, playing with educational toys, etc.). So-called "educational" programs are also necessarily custodial since they involve care of the children. In PLRB, the children came from minority groups. In Lutheran the children come from low income families, but two-thirds of the children also come from minority groups. In both cases the objective of the program is for children to be able to compete when they reach the public schools, and also in both cases the programs offer some health and social services to the children and their families. Finally, in both cases all funds come from either Federal or state governments. In my view, the Board correctly determined in PLRB that day care centers are essentially local in character and that the Board should exercise its sound discretion in not extending its jurisdiction to cover such local operations. Accordingly, I would dismiss the petition herein. i Drexel Home, Inc., 182 NLRB 1045 (1970). case is not to be taken as agreement with the Advisory Opinion rendered 2 Acting Chairman Fanning did not participate in Pennsylvania Labor therein. Relations Board and his participation in this Decision distinguishing that