Father Flanagan's Boys' Home

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Father Flanagan's Boys' Home and Boys Town Edu- cation Association-affiliated with Nebraska State Education Association & National Education Asso- ciation, Petitioner. Case 17-RC-7921 July 30, 1976 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, PENELLO, AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on March 8 and 9, 1976, before Hearing Officer John P. Hurley. Following the hear- ing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 17 transferred this case to the National Labor Relations Board for decision. Pursuant to the provision of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 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, a Nebraska nonprofit corpora- tion, operates a residntial facility for the care and development of homeless boys between the ages of 10 and 19. Within the Home, there are three commu- nities, each consisting of approximately 14 individual homes.' At the beginning of 1976, the Home, which can accommodate 400 children, had 360 children in residence. Although Employer's primary objective is to pro- vide children with longterm care in a family-style sit- uation, one of the purposes for which Employer was organized is educational. In this respect, Employer's facilities include a middle school which is basically elementary and junior high, a high school, and the trade school which is concerned primarily with voca- tional training. All of the Home's residents are in- volved in an educational program.' In addition, ap- proximately 140 nonresidents' from the Greater Omaha area, with backgrounds similar to the Home's residents, are enrolled in the Home's school system.4 i Within each home, a husband and wife team acts as surrogate patents to several boys 2 Elery L Phillips, executive deputy director of home care, testified that all of the residents are required by Nebraska law to be in an educational process 3 This figure includes 30 full-time students and 110 part-time During the calendar year of 1974, Employer's total income exceeded $22 million. Almost all of this fig- ure was derived from private gifts or bequests and from investments. In addition, Employer's annual di- rect out-of-state purchases exceeded $50,000. Employer contends that it is a charitable noncom- mercial institution and that, in the exercise of its dis- cretion, the Board should decline to assert jurisdic- tion. We find no merit in this contention. In The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home,5 the Board determined that "The sole basis for declining or asserting jurisdiction over charitable organizations will not be identical with those which are not charitable." The Board fur- ther indicated that "Now, the only basis for declining jurisdiction over a charitable organization is a find- ing that its activities do not have sufficient impact on interstate commerce to warrant the exercise of the Board's jurisdiction." Since Employer's 1974 income exceeded $22 million and its annual direct out-of- state purchases exceed $50,000, it is apparent that Employer's impact on interstate commerce is sub- stantial. In so finding we note, moreover, that Em- ployer meets every discretionary jurisdictional stan- dard the Board has applied to date.' We conclude, therefore, that it would effectuate the purposes of the Act to assert jurisdiction herein. 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. Petitioner seeks to represent a unit of all profes- sional, certified staff including teachers, media per- sonnel, librarians, nonsupervisory coordinators, tu- toring program personnel, coaches, research and evaluation program personnel, guidance counselors, and learning resources department personnel. At the hearing, however, Petitioner asserted that media spe- cialists and counselor chairmen, classifications seem- 4 The Home, however, does not receive any money from the city, county, or State '224 NLRB No 70 (1976) (Member Fanning concurring, Chairman Murphy and Member Penello dissenting) 6 See Salt & Pepper Nursery School & Kindergarten No 2, 222 NLRB 1295 (1976), Shattuck School, 189 NLRB 886 (1971), Drexel Home, Inc, 182 NLRB 1045 (1970), University Nursing Home, Inc, 168 NLRB 263 (1967), Siemons Mailing Service, 122 NLRB 81 (1958) 7 At the hearing, Employer refused to stipulate that Petitioner is a labor organization within the meaning of the Act The record reflects, however, that Petitioner exists for the purpose of dealing with employers with respect to rates of pay, hours, and other terms and conditions of employment and that employees participate in its affairs While it also is apparent that Petitioner's membership is open to administrative and supervisory person- nel as well as to nonsupervisors, there is no evidence of improper employer influence in union affairs or domination of the Union by Employer in viola- tion of Sec 8(a)(2) of the Act Accordingly, we find that Petitioner, as designated herein, is a labor organization within the meaning of the Act. 225 NLRB No. 100 FATHER FLANAGAN'S BOYS' HOME 783 ingly covered by the petition's unit description, should be excluded from the unit as supervisors. Em- ployer contends that media specialists and counselor chairmen are not supervisors within the meaning of the Act and therefore should be included in the unit. In addition, contrary to Petitioner, Employer main- tains that department chairmen are not supervisors and should be included in the unit. In support of its position relative to these supervi- sory issues, Petitioner relies to a great extent on cer- tain excerpts taken from Employer's written job descriptions listing the various duties and responsibilities of individuals in these disputed classi- fications. Employer asserts that, to the extent the job descriptions appear to evidence some supervisory functions, they do not accurately reflect the actual authority of individuals holding the jobs in question and that theoretical "paper" power will not make an individual a supervisor.' Department chairmen: Employer's five upper divi- sion 9 teacher department chairmen are certified teachers with regular teaching loads. The position de- scription for these individuals indicates that their ba- sic function is "[t]o provide leadership, coordination, and innovation to [the] assigned curricular area, so that each student may derive maximum benefit from the continuing pursuit of the subject involved." Item 10 of the description states, moreover, that a depart- ment chairman "[r]ecommends in the recruitment, screening, hiring, and assists in the training, and as- signing of personnel." The record reflects, however, that, with respect to their fellow teachers, department chairmen do not have the authority to hire, fire, promote, discipline, responsibly direct, or effectively recommend such ac- tion.10 Nor are department chairmen a part of the 8 The job titles department chairmen , counselor chairmen, and media spe- cialists, were included on a list of nonsupervisory positions and job descrip- tions submitted by Employer at the hearing Employer also submitted a separate list for supervisory positions The parties stipulated and we find that all individuals with the followingjob titles , as specified in the latter list, are supervisors within the meaning of Sec 2(11) of the Act Deputy executive director for education, division directors for special services , upper division and lower division, staff associate for business man- agement and personnel, staff associate for external affairs , educational spe- cialist , assistant to director for education , minischool coordinator , educa- tional specialist , planning specialist , supervisor, academic programs, supervisor, vocational programs , administrative assistant, vocational pro- grams , coordinator of athletics , coordinator of learning resources , coordi- nator of music , and coordinator of student development and program eval- uation 9 Employer's department of education is divided into three functions, the lower division, upper division, and division of special services The lower division includes grades 2 through 9, the upper division includes grades 10 through 12, and special services operates as a support division to the other two 10 Dr William Lloyd Hawver, deputy executive director for education, testified that recommendations of department chairmen relative to person- nel matters would carry no greater weight than recommendations of other teachers who are not department chairmen Dr Hawver further indicated that a department chairman's recommendation would not have the signifi- cance of that of an administrator grievance procedure on behalf of Employer. The pri- mary function distinguishing department chairmen from other teachers II is their responsibility to devel- op curriculum. Recommendations of department chairmen concerning curriculum and related matters, however, are subject to the approval of the assistant principal or principal. Based on the foregoing, we conclude that, in these circumstances, department chairmen do not possess supervisory authority within the meaning of Section 2(11) of the Act and we shall therefore include them in the unit.12 Media specialists: Individuals in this classification are essentially librarians whose primary function is to serve as a resource to teachers and students. The po- sition description states that, inter alia, a media spe- cialist "[s]upervises supporting staff . . . [d]esignates duties and trains subordinate staff members . . . [and] [d]iagnoses the strengths and weaknesses of the staff . . . ." The record indicates, however, that me- dia specialists exercise no supervisory authority with regard to the professional teaching staff. Although it appears that they are responsible for directing the work of the nonprofessional staff assigned to the me- dia services, media specialists spend only a minimal part of their workday directing nonprofessional per- sonnel in routine matters such as cataloging and de- livering messages. 13 Personnel decisions regarding the nonprofessional employees, however, are made by the director or supervisor of the division concerned, based upon an evaluation by the supervisor of per- sonnel. Where, as here, media specialists exercise su- pervisory authority over only nonprofessional non- unit employees, the Board will not exclude them from a professional unit unless they spend more than 50 percent of their time performing supervisory du- ties.14 Absent such showing in the record, we con- clude therefore that media specialists are not supervi- sors as defined in the Act and we shall include them in the unit." 11 It also appears that one or more teaching aides work in each depart- ment The record, however, reflects neither the nature of their duties nor the extent to which department chairmen direct their work These nonprofes- sional employees are not part of the unit sought here 12 See Yeshiva University, 221 NLRB 1053 (1975), The Catholic Bishop of Chicago, a Corporation Sole, 220 NLRB 359 (1975), Florida Southern Col- lege, 196 NLRB 888 (1972), Fordham University, 193 NLRB 134 (1971) 13 In this vein, it is noteworthy that there are only two nonprofessional employees involved with the library in the lower division and one nonpro- fessional employee in the upper division It appears, moreover, that one of the two media specialists in the upper division does not direct the two nonprofessional employees at all 14 See New York University, 205 NLRB 4, 8 (1973), Adelphi University, 195 NLRB 639, 645 (1972) (director of motion picture studies) 15 Member Walther agrees with his colleagues that the media specialists are eligible to vote. He does so, however, not upon an application of the Adelpht 50-percent rule, but rather upon the basis that the individuals in question do not exercise supervisory authority within the meaning of the Act In his judgment, the routine direction of three employees noted by his colleagues is an insufficient basis upon which to predicate a supervisory finding 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counselor chairmen: There are three lower division counselors and four upper division counselors, in- cluding a chairman in each division. Counselor chairmen are certificated teachers who spend 75 to 80 percent of their time counseling students on mat- ters relating to class schedules, career opportunities, and further education. Unlike other counselors, they have a duty to explain the role of the counselors to students and teachers and are responsible for orga- nizing the counseling program. The position description suggests that counselor chairmen "Develop and monitor the scope of the school counselor's role . . . [s]upervise all services and functions provided by school counselors .. . [and] [s]upervise assigned staff and perform staff evaluations ... ." Dr. Hawver, deputy executive di- rector of education, testified that the position de- scription does not accurately describe the actual role of the counselor chairmen. In this vein, the record reflects that, with respect to other teachers, counselor chairmen do not have any authority to hire, fire, pro- mote, discipline, or effectively recommend such ac- tion. Nor do counselor chairmen supervise other counselors. This authority reposes in the director of special services, Dr. McGinnis. Accordingly, we find that counselor chairmen are not supervisors within the meaning of the Act and we shall include them in the unit. Based upon the foregoing and the entire record, we find that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All professional certified staff including depart- ment chairmen, teachers, media specialists, me- dia personnel, librarians, nonsupervisory coordi- nators, tutoring program personnel, coaches, research and evaluation program personnel, counselor chairmen, guidance counselors, and learning resources department personnel, but excluding the deputy director of education, di- rectors, administrative assistants, staff associ- ates, all other employees, guards, and supervi- sors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.[