Austin Developmental Center, Inc.

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Austin Developmental Center, Inc. and General Ser- vice Employees Union, Local 73, Service Employ- ees International Union, AFL-CIO,' Petitioner. Case 13-RC-13783 September 24, 1976 DECISION ON REVIEW AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 9, 1975, the Regional Director for Region 13 issued a Decision and Order in the above- entitled proceeding in which he dismissed the peti- tion because he found that it would not effectuate the policies of the Act to assert jurisdiction. Thereaf- ter, in accordance with Section 102.67 of the Nation- al Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's deci- sion, contending that the Regional Director departed from officially reported precedent and ignored sub- stantial factual issues. By telegraphic order dated January 22, 1976, the Board granted the Petitioner's request for review. Thereafter the Employer filed a brief on review, the Petitioner filed a motion to strike Employer's brief, and the Employer filed a reply to the Petitioner's motion.2 Pursuant to the provisions 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 considered the entire record in this case with respect to the issue under review and makes the following findings: 1. Austin Developmental Center, Inc., is a not-for- profit Illinois corporation engaged in providing edu- cational and counseling services to children between the ages of 5 and 13. The facility's student population consists of children who, based on psychological test- ing and other information, are designated by the School Board of Education as socially maladjusted and unable to function properly in public school classrooms. The goal of the Center is to educate the students so they can return to the public school envi- ronment. In filling this function, it provides educa- tional services in a small class with close supervision. Thus, the Center, which has a capacity of 24 stu- dents, places its pupils in a class of approximately 8 students with 1 teacher and 1 teacher aide. The edu- 1 The name of the Petitioner appears as amended at the hearing 2 The Petitioner's motion to strike the Employer's brief because it makes assertions of fact not in the record is hereby denied as the Board, in reach- ing Its decision in this case , has considered only the record evidence cational services are provided on an unstructured ba- sis which allows for the individual needs of the stu- dents. Classes are scheduled betwen 8:30 a.m. and 1:30 p.m. The Center provides a breakfast and lunch program for its students, but there are no residential facilities. At the end of the schoolday, the children return to their homes. The educational staff works jointly with the coun- seling staff in both screening students and in making home visits. The counselors attend to the needs of the families of the children enrolled at the Center, such as arranging for medical appointments or insuring that children are properly enrolled in schools. Al- though there are separate directors for the counseling staff and the educational staff, the programs interre- late so that when a member of the teaching staff makes a visit to the home of a student, for example, that teacher is supervised by the director of counsel- ing. The Employer had gross revenues of $309,679 in its fiscal year ending June 30, 1975. Of this amount, $236,837 were received as a grant from the Illinois Department of Mental Health; $56,954 were received from contributions in kind; and $11,698 were re- ceived in tuition reimbursements from the Chicago Board of Education. The Employer spent in excess of $2,000 on the purchase of insurance from out-of- state sources. The Regional Director found that the Employer was not a health care institution but rather a "non- profit non-commercial charitable child care facility," over which the Board would not assert jurisdiction for reasons set forth in Ming Quong Children's Cen- ter, 210 NLRB 899 (1974). However, subsequent to his decision, the Board in The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home 3 concluded that the rationale of Ming Quong was no longer via- ble in view of the recent health care amendments to the Act. The Board affirmatively stated that hence- forth in applying its discretionary jurisdictional stan- dards, no distinction would be made between chari- table and noncharitable institutions. As it appears that the Employer operates a special- ized child care institution and as its gross revenues exceed the jurisdictional standard of $250,000 for such an institution,' we find that it will effectuate the policies of the Act to assert jurisdiction herein.' Our dissenting colleague, relying on Overbrook School for the Blind 6 and Pennsylvania School for the 3224 NLRB 1344 (1976) Salt and Pepper Nursery School & Kindergarten No 2, 222 NLRB 1295 (1976) 5 Member Fanning concurs in the result herein for the reasons stated in his separate opinions in The Rhode Island Catholic Orphan Asylum, and Salt and Pepper Nursery School, supra , however, he would apply a jurisdictional standard of $100,000 for institutions such as the Employer here 6213 NLRB 511 (1974) 226 NLRB No. 24 AUSTIN DEVELOPMENTAL CENTER, INC. 135 Deaf,7 asserts that the Employer is an adjunct to a public school system and that we should therefore decline to assert jurisdiction over it. We disagree. In both of the cited cases. the government or its agen- cies exercised substantially more control over the em- ployers than is here present. Thus, in Overbrook School, the Pennsylvania Department of Education approved and authorized tuition payments based on the school's conformance to department regulations. These regulations governed - class size, curriculum, certification of the professional staff, and even the materials, supplies, and equipment used in the schools. In addition, the employer was also required to submit an annual report on its conditions to -the state legislature. These same factors were present in the Pennsylvania School for the Deaf.8 in the latter case, there was the additional factor that state law required the educational services which were provid- ed. The above factors can be contrasted with the in- stant case, where the record shows only that the Em- ployer must comply with building code standards, and that 20 percent of the Center's staff must be cer- tified: Under= these circumstances, the cases upon which our colleague relies are clearly inapposite .9 Our dissenting colleague nevertheless maintains, in effect, that because "the Center provides an educa- tional function for a public school system" this alone establishes its exemption from the Act. A similar contention was advanced and rejected in George Jun- ior Republic, 224' NLRB -1581 (1976).10 There, the ma- jority found,that if this contention had merit then any and all schools operating under the certification and inspection regulations of the various States would be exempt from our jurisdiction irrespective of whether their relationship with the public school sys- tem was intimate or remote. The majority further pointed out that the record evidence in the Overbrook School and Pennsylvania School for the Deaf cases es- tablished that the schools had "a special relationship to the public school system which, through the De- 7 213 NLRB 513 (1974) 8 Rather than subnutting an annual report to the state legislature, the employer in Pennsylvania School is required to submit a detailed monthly statement of income and expenses to the Bureau of Special Education. 9 Member Fanning agrees that this case is distinguishable from Overbrook School for the Blind and Pennsylvania School for the Deaf, and that those cases are therefore inapposite . This should not be taken as necessarily indi- cating his approval of those decisions as he does not believe the fact that a private corporation is performing functions which otherwise might be per- formed by the State, or a political subdivision thereof, justifies a decision of the Board to decline jurisdiction over such operations . See, for example, his dissenting opinions in Current Construction Corp. and Samuel M Wagner, 209 NLRB 718 (1974), Rural Fire Protection Company, 216 NLRB 584 (1975); and Mitchell School, Incorporated and Main Line Day School, Incor- porate; 224 NLRB 1017 (1976). 10 Member Fanning did not participate in George Junior Republic, and does not necessarily approve all of its findings or rationale . See In 9, above partment of Education, exercises substantial and di- rect control over the school's operation." In the in- stant case, there is simply too little connection be- tween the operation of the Employer's specialized child care services and the public school system to establish the exemption. We- find no more basis for concluding that the Employer shares the State's ex- emption than we would for any of the archdiocesan or nonprofit schools over which we have taken juris- diction. To decline jurisdiction, as would the Chair- man, merely because the Employer performs the "educational function" which is also performed by the State and is generally regarded as a "public" function would lead to our declining jurisdiction over those who build roads and buildings for the States or cities, or ships and planes for the armed forces. 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 Sections 9(c)(1) and 2(6) and (7) of the Act. 4. As the Regional Director made no unit determi- nation and as the record does not afford a sufficient basis for finding an appropriate unit, we shall re- mand the case to the Regional Director, ORDER It is hereby ordered that the petition be, and it hereby is, reinstated and that the case be, and it here- by is, remanded to the Regional Director for further appropriate action, consistent with this Decision on Review and Order. CHAIRMAN MURPHY, dissenting: Contrary to my colleagues, I find that the assertion of jurisdiction over the Employer herein is not war- ranted. In the first place, Austin Developmental Cen- ter functions as an adjunct to a public school system and it shares the exemption of that system. As the majority points out, the Employer provides educa- tional services to emotionally disturbed children who are designated by the Board of Education as unable to function in a public school classroom. In order to perform these services, the Center has been certified to receive tuition reimbursement from the Chicago Board of Education and is, in fact, partially funded from this source. To qualify for this aid, the Employer's facilities are required to meet building code standards," and at least 20 percent of the Center's staff who are directly involved with the stu- 11 The record shows that in order to be certified the Center had to move its facilities because its former location did not comply with building code standards 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dents must be certified by the State in special educa- tion. The goal of the Center is to educate its pupils so they can return to the public school environment. In this respect, a student's tenure at the school is by no means expected to be permanent. Rather, students remain only until such time as they are able to re- sume their studies in a public school. The Center thus acts as a surrogate to the public schools during peri- ods when children are experiencing emotional diffi- culties and, as such, functions as an adjunct to the public school system.12 Thus, in providing education- al services to emotionally disturbed children, the Em- ployer supplements the facilities of the public school system by performing specialized educational func- tions which the school has elected not to perform itself.13 In this capacity, the Employer's activities are essentially so interrelated with the public school sys- tem as to share its exemption. Accordingly, in my view, the Board should exercise its discretion and de- cline to assert jurisdiction over the Employer. Alternatively, I would also affirm the Regional Director's dismissal of the petition based on the ra- tionale articulated in Ming Quong.14 In that case, the Board determined that it would not effectuate the policies of the Act to assert jurisdiction, absent spe- cial justification, over a nonprofit child care facility whose activities are noncommercial in nature and are intimately connected with the charitable purposes of the institution. The factors relied on by the Board in 12 See, a g, Overbrook School for the Blind, 213 NLRB 511 (1974), Penn- sylvania School for the Deaf, 213 NLRB 513 (1974) While the extent of the State's control over the employers in those cases may have been greater, as my colleagues argue, that does not negate the fact that, as in the case of those employers, the Center provides an educational function for a public school system 13 Cf Current Construction Corp, 209 NLRB 718 (1974) 14 Ming Quong Children's Center, 210 NLRB 899 (1974) Ming Quong are also present here. Thus, the Employ- er operates a nonprofit, noncommercial, charitable child care facility. The facts here are also similar to those in St. Aloysfus Home," wherein the Board over- ruled Ming Quong. I dissented in St. Aloysius be- cause, in my opinion, the Board should continue to decline jurisdiction over noncommercial nonprofit child care facilities such as the Employer here. Such a policy, in my view, conforms with the clear con- gressional intent that nonprofit operations of elee- mosynary organizations be exempted from the Board's jurisdiction. The arguments of my colleagues are specious on their face and do not merit or require a response. It is to be noted, however, that their view based on the decision in George Junior Republic is grounded upon a position from which I dissented in St. Aloysius Home, supra. And the analogy to paro- chial schools is totally inapposite; they are a volun- tary substitute for the public school system, whereas the instant Employer supplies services which the school system is obligated to provide but which it makes available only through this Employer. An ad- junct, in my opinion, exists only when the disputed operation is the instrument of the State, not merely parallel to a service otherwise provided by the gov- ernment. Accordingly, for the reasons set forth above and more fully expressed in my dissent in St. Aloysius Home, I would dismiss the instant petition. In any event, assuming arguendo the validity of my col- leagues' position on the effect of the hospital amend- ments, as noted above, I find this operation to be entirely local and would refuse to assert jurisdiction on that ground alone. 15 The Rhode Island Catholic Orphan Asylum, a/k/a St Aloysfus Home, 224 NLRB 1344 (1976)