Salt & Pepper Nursery School & Kindergraten No. 2

SALT & PEPPER NURSERY SCHOOL Salt & Pepper Nursery School & Kindergarten No. 2 and Local 79, Service Employees International Union, AFL-CIO, Petitioner. Case 7-RC-13039 October 15, 1976 ORDER DENYING MOTION On March 8, 1976, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding,' in which the Board dismissed the petition filed herein. Thereafter, on March 31, 1976, the Petitioner filed a Motion- for Reconsideration requesting that the Board reconsider its decision and reinstate the peti- tion. The Board has considered the matter and is of the view that the motion has raised no issues which would warrant reversal or modification of its prior decision. Accordingly, we shall deny the motion as lacking in merit. Our dissenting colleague's statement that it is "cru- elly unfair" for the Board to assert jurisdiction over an industry, leave the actual standard to future deter- mination, and then apply it retroactively, erroneously implies that in Young World, Inc., 216 NLRB 392 (1975), the case relied on by the Petitioner, the Board in some way unfairly encouraged unions to organize day care centers which met the standard discussed in that case for nursing homes. Were this so, we would be inclined to agree with his characterization of .the Board's action. The facts, however, lend no support to such an accusation. The truth of the matter is that the Board did not indicate in any way that day care centers whose annual earnings amounted to $100,000 would be covered by the Act. In that case, in which our dissenting colleague joined, the Board noted that the Young World employer had projected revenues for the year in question exceeding $1 million and substantial out-of-state purchases. The Board, on these facts, asserted jurisdiction only because the em- ployer met every discretionary standard applied to that date. The Board, including our dissenting col- league, most emphatically stated that "we are not prepared at this time to establish a jurisdictional standard for day care centers as a class." Thus, the Union herein could not have relied on the Board's decision in that case because no jurisdictional stan- dard was established, and, the only revenue figure the Union could have reasonably relied on was $1 million. Our dissenting colleague also appears to be saying that since the employer in Young World urged the 1 222 NLRB 1295, Member Fanning dissenting. 423 application of the $100,000 nursing home standard (which of course was rejected by us and our dissent- ing colleague in that case) the Board is in some way bound to provide the. protection of the Act to those employees who have relied on the employer's repre- sentation in that case and have engaged elsewhere in organizational activity. If this is our colleague's posi- tion, we must say, in all candor, that it borders on the absurd. We do not agree with his apparent position that the mere presentation of a position by an em- ployer is sufficient to establish Board precedent. The Board is in no way required to provide the protection of the Act- because of the reliance by others on a position taken by a party in a representation pro- ceeding. In his dissent, our colleague bemoans the fact that the Board has in this case tentatively set a jurisdic- tional standard of $250,000, and alludes to some sta- tistics which show that such a standard will leave some employees without the protection of the Act. We note, however, that even if the $100,000 standard (urged by our colleague) were adopted, the same fig- ures relied on by him tend to show that 65 to 75 percent of day care centers would not be covered by the Act. Query whether our colleague is being "cruel- ly unfair" to those employees of the centers which do not gross $100,000 anually. ORDER Based upon the foregoing, the National Labor Re- lations Board hereby affirms its order issued in this proceeding on March 8, 1976. MEMBER FANNING, dissenting: For reasons stated in my dissenting opinion, I would have asserted jurisdiction in this case. Accord- ingly, I would grant the Motion for Reconsideration. I note the patently valid argument of the Petitioner that the Board, having asserted jurisdiction over a day care center meeting all Board jurisdictional stan- dards-Young World, Inc., 216 NLRB 392 (1975), where the employer urged application of the $100,000 nursing home standard-was bound to en- courage organization in cases of this sort having an income in excess of $100,000. If, in fact, employees have been discharged as a result of this campaign, they are by the action of my colleagues denied access to Board processes by the unduly excessive $250,000 standard which my colleagues have even now only tentatively set. I am inclined to agree with Petitioner that it is "cruelly unfair" for the Board to assert juris- diction over an industry, leave the actual standard to future determination, and then apply it retroactively. My colleagues astound me with their "could-rea- sonably-have-relied-upon" argument. In their view 226 NLRB No. 55 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no union could or would reasonably have relied on the Young World,-Inc., decision to undertake organi- zation unless the child care facility whose employees it sought to represent similarly grossed $ 1 million. This analysis seems quite unreasonable to me. That Board decision specifically said that "every discre- tionary jurisdictional standard the Board has applied to date" was met by Young World, thus including the lowest standard of all-the existing $100,000 for nursing homes urged by Young World as appropriate for the child care field. How then say that $100,000- the existing standard in an industry more closely akin to child care than any other-could not reason- ably have been anticipated, if not "relied upon"? By this approach they attempt to obscure the obvious relevance of the nursing home standard they refused to apply, achieving this obscurity to a considerable extent by emphasizing that no party's contention can in any way bind the Board? But let none of us lose sight of the point truly im- portant here-that a rational standard promptly set is a "must" once the Board has asserted jurisdiction over an industry for the first time based on an em- ployer meeting every existing jurisdictional standard. The lowest is then a possibility and the allegations here made demonstrate the need to avoid raising false hopes of Section 7 rights "in the offing." 2 MY colleagues also note what seems to them a lack of concern on my part that $100,000 may not be low enough as a standard, thus "cruel" to those not covered, as it appears to cover only 25 to 35 percent of the child care industry I would note that a 28-percent coverage of "professional metropolitan and major orchestras" did not deter the Board in setting the standard for symphony orchestras