Catholic Social Services

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Catholic Social Services and International Union, Lo- cal 3, Office and Professional Employees Union, AFL-CIO Petitioner. Case 20-RC-13071 June 29, 1976 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on October 14, 1975, before Hear- ing Officer Evelyn Hunt. Following the hearing, and pursuant to Section 102.67 of the National Labor Re- lations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 20 trans- ferred this case to the National Labor Relations Board for decision. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that no prejudi- cial error was committed. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer (herein called CSS) is a nonpro- fit, charitable, religiously orientated social service agency which provides counseling services within the geographical areas of Alameda and Contra Costa Counties, California. It carries on its operations through its main office it Oakland and branch of- fices in Fremont, Hayward, Pittsburgh, Pleasant Hill, Richmond, and East Oakland. CSS' primary func- tion involves family counseling by professional social workers who engage in all areas of counseling relat- ing to family problems. To carry on its programs, CSS employs professional social workers as family counselors, nonprofessional community counselors, and office clerical employees. The Petitioner seeks an election in a unit of the community counselors and the clerical employees. The Employer contends that jurisdiction should not be asserted under the doctrine of Ming Quong Children's Center, 210 NLRB 899 (1974), because it is not a "health care" facility within the meaning of Section 2(14) of the Act, it is a noncommercial, non- profit, charitable organization, and it does not have a massive impact on commerce. The Employer further contends that its activities are entirely local and have virtually no impact on commerce. Historically, in the absence of a massive impact on commerce, the Board has declined to assert jurisdic- tion over nonprofit institutions whose activities are primarily noncommercial in nature and intimately connected with the charitable purposes.' However, in The Rhode Island Catholic Orphan Asylum a/k/a St. Aloysius Home, 224 NLRB No. 70 (1976), the Board abandoned the Ming Quong doctrine on the ground that it was based on the statutory exemption for non- profit hospitals and that the recent health care amendments to the Act 2 had removed this exemp- tion. The Employer's contentions, therefore, no lon- ger provide any basis for declining to assert j urisdic- tion here.' The Employer's family counselors provide counseling with respect to problems involving hus- band and wife, parents and children, unwed parent- hood, aging, and related matters. The Employer's East Oakland project, funded by Arriba Juntos, is principally directed at children who have school-re- lated problems and their families in those instances where the specific problem originates in, or carries over into, the home. One community counselor works directly with narcotics addicts with regard to the physical problems and emotional attitudes of the addicts, as well as their material needs in their efforts to return to their communities. Although differing in a number of respects, the general nature of services provided is analogous to those provided in Child and Family Service of Springfield, Inc., 220 NLRB 37 (1975). The record shows that the Employer's total income for fiscal year 1975 was approximately $412,000. Ap- proximately $131,000 of his total was from fees for services rendered. This consisted of $72,675 from fees charged to family clients; $19,219 from Arriba Juntos, a United Way agency, for counseling services provided to three selected schools in the East Oak- land area; $15,521 from the St. Vincent DePaul Soci- ety for counseling services in the Richmond area; and $24,166 as a grant from the Federal Bureau of Prisons for counseling services provided for paroled persons with drug-related problems. The balance of $281,000 was derived from charitable contributions, including $231,000 from the United Way, $48,000 from Catholic Charities, and the remainder from in- dividual contributions and fund-raising activities. For fiscal year 1976 CSS has projected revenue of approximately $405,000, including the grant for the narcotics rehabilitation program. CSS' expenditures for fiscal year 1975 consisted of $362,000 for wages and benefits, $22,674 for rent, $13,372 for telephone expense, $5,600 for supplies, $4,700 for professional services, and $1,024 for postage. Since the Employer's annual gross income exceeds Ming Quong Children's Center, supra Z Public Law 93-360 (July 26, 1974) 7 Member Fanning would assert jurisdiction solely on the basis of his dissenting opinions in Ming Quong Children's Center, 210 NLRB 899 (1974), East Oakland Community Health Alliance, Inc, 218 NLRB 1270 (1975); Salt & Pepper Nursery School, 222 NLRB 1295 (1976), and his concurring opin- ion in Si Aloysius Home, supra 225 NLRB No. 45 CATHOLIC SOCIAL SERVICES 289 $400,000, which is in excess of any of the analogous standards, we find that it would effectuate the poli- cies of the Act to assert jurisdiction herein. See Child and Family Service of Springfield, supra.4 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a unit consisting of office clerical employees and nonprofessional community counselors employed by CSS in its various offices in the Oakland-East Bay area of California, excluding the professional employees, confidential employees, and supervisors as defined in the Act. The Employer contends that the unit sought is inappropriate be- cause the community counselors, although nonpro- fessional, have a close community of interest with the professional family counselors, have no community of interest with the office clerical employees, and should be excluded from the unit. CSS employs approximately 25 employees, includ- ing the associate director, a director of counseling services, and a project director, all stipulated to be supervisors, and 1 administrative secretary, who the parties stipulated is a confidential employee. There are 11 family counselors, all of whom have degrees in social service and have been stipulated to be profes- sional employees, 5 community counselors, and 4 of- fice clerical employees. As noted above, the primary function of CSS is counseling service. Family coun- selors provide counseling to individuals and families in CSS' various offices throughout the East Bay area. The community counselors, who are not required to be college educated, generally work in specific ar- eas or are assigned to specific projects. One works out of the Richmond office and deals primarily with low income and minority group persons in areas re- lated to specific needs such as housing, financial problems, and employment. He also assists people in the community to obtain various benefits available from governmental or other social service oriented agencies . Three community counselors are assigned to the East Oakland office from which they provide counseling service for school-related problems to children from three selected schools in East Oakland. The remaining community counselor works out of the Oakland office with individuals on Federal pro- With regard to statutory jurisdiction, the record shows that the Employ- er, in fiscal year 1975, received approximately $24,000 from the Federal Bureau of Prisons for purposes of carrying on that agency 's narcotics reha- bilitation program in the Oakland area . In addition, during this same peri- od, it paid in excess of $13,000 for telephone service to Pacific Telephone and Telegraph Company, an instrumentality of interstate commerce bation or parole from drug-related convictions. When community counselors encounter situations in which the need for family counseling is indicated, they may involve the family counselors and collabo- rate in attempting to resolve the problem. Both fam- ily and community counselors participate in monthly staff educational and training programs. The clerical employees are located at the Oakland, Richmond, Pleasant Hill, and Pittsburgh offices and provide supportive services for all the family and community counselors. These services include intake client appointments, record maintenance, telephone answering, greeting clients, filing, typing of reports for individual counselors, and coordination or prepa- ration and typing of various statistical and other re- ports. Their functions are thus analogous to plant or hospital clericals rather than business office clericals. See, e.g., William W. Backus Hopsital, 220 NLRB 414 (1975). Supervision of the family counselors, community counselors, and clerical employees is provided by a director, a catholic priest who spends 25 percent of his time with CSS, a full-time lay associate director, and a project director. Labor relations with respect to all employees are the responsibility of CSS' board of directors. The salaries of all full-time employees are computed on an annual basis. All are paid on the same payroll. Overtime policies, vacations, and holi- days are applied without distinction as to job classifi- cation. In addition, all employees are covered by the same hospitalization plan for which CSS pays the premium, and all employees are eligible for partici- pation in the same retirement plan. The fact that the Employer's primary and almost single function is to provide counseling services re- garding family and related problems and that the work efforts of the entire staff are directed toward rendering these services would indicate that the most appropriate unit is a unit consisting of family coun- selors, community counselors, and clerical employ- ees. But Section 9(b)(1) of the Act prohibits inclusion of professional employees in such a unit unless a ma- jority of the professionals vote to be included. Inas- much as Petitioner does not seek to represent the family counselors, they will not be included in the unit. Since the clerical employees have a direct work relationship with the community counselors, are un- der the same supervision, are on the same payroll, enjoy the same working conditions and fringe bene- fits, and have continuing contacts with them, we con- clude that a unit limited to the nonprofessional com- munity counselors and clerical employees constitutes a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(c) of the Act. Accordingly, we find that the following unit is 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate for the purpose of collective bargaining within the meaning of Section 9(c) of the Act: All community counselors and clerical employ- ees employed by Catholic Social Services at its various locations in Alameda and Contra Costa Counties, California, excluding confidential em- ployees, professional employees, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] CHAIRMAN MURPHY, dissenting: I would decline to assert jurisdiction for the rea- sons set forth in my dissenting opinions in The Rhode Island Catholic Orphan Asylum a/k/a St. Aloysius Home, 224 NLRB No. 70 (1976), and Child and Fam- ily Service of Springfield, Inc., 220 NLRB 37 (1975).