California Inspection Rating Bureau

DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Inspection Rating Bureau and Professional and Clerical Employees, Division of Teamsters Local No. 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 20-CA-I 1192 August 22, 1977 SUPPLEMENTAL DECISION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 9, 1976, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding finding that the Respondent had engaged in and was engaging in unfair practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, and ordering the Respondent to cease and desist there- from and to take certain affirmative action to remedy such unfair labor practices. Upon its own motion, the Board decided, on April 5, 1977, to reconsider its Decision and Order and consider whether the Board has properly asserted jurisdiction over the operations of the Respondent. Thereafter, the Respondent and the General Counsel of the National Labor Relations Board filed state- ments of position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the above-entitled Decision and Order, the statements of position of the Respondent and the General Counsel, and the entire record in this case and has decided to reaffirm its decision to assert jurisdiction over the Respondent. I 225 NLRB 870. 2215 NLRB 780 (1974). 3 See, e.g., Rural Fire Protection Company, 216 NLRB 584 (1975); Grey Nuns of the Sacred Heart, 221 NLRB 1215 (1975); National Maritime Union of America, AFL-CIO (Puerto Rico Marine Management, Inc.), 227 NLRB 20 (1976): Nichols Sanitation. Inc., 230 NLRB 834 (1977). In asserting jurisdiction over this Employer, Chairman Fanning is not relying on the Employer's lack of intimate connection with the State of California. Rather he relies only on the degree to which the Employer involved herein retains control over the working conditions of its employees thus evidencing its capability of engaging in meaningful collective bargaining. See Chairman Fanning's dissenting opinions in Rural Fire Protection, Company, supra, and Nichols Sanitation, Inc., supra, and his concurring opinion in Grey Nuns of the Sacred Heart, supra. In rejecting the Respondent's jurisdictional defense in the earlier Decision and Direction of Election,2 the Board found, inter alia, no merit to the Respondent's contentions that its operations are exempted from the Board's jurisdiction because the Respondent was created by virtue of state statutes and regulations, and that if the work were not done by the Respondent it would be done by the State of California. We set forth in more detail our reasons for this conclusion. The Board has never, as contended by the Respondent, held that merely because a function or service is mandated by state statutes or legislature the work in question per se becomes intimately connected with the state and thereby is exempted from the Board's jurisdiction. The Board's test in such cases is an examination of all the factors in the situation, including the nature of the functions which have been mandated by the state, whether the activities concern traditional essential governmental functions as distinguished from commercial opera- tions, and the degree of control exercised by the exempt entity over the operations. 3 The insurance rating activities engaged in by the Respondent here are similar to commercial enterpris- es engaged in by employers in the private sector in other States and are not a universally recognized, traditional governmental function within the mean- ing of the cases. The fact that the Respondent has been established by the state legislature does not detract from the commercial nature of the operation. As noted in our Decision and Direction of Election, the Respondent sells its services to private insurance companies and not to the State of California, and its labor relations, personnel practices, and day-to-day administration are independent of state control.4 Accordingly, we reaffirm the Conclusions of Law and the Order provided in the Decision and Order in the above-entitled proceeding. Cf. Columbia Transit Corporation. 226 NLRB 812 (1976); Chairman Fanning dissenting. We do not construe the language at fn. 8 of that decision in which neither Members Jenkins nor Murphy participated, and Chairman Fanning dissented as establishing a per se principle that functions created or authorized by state statute thereby become a part of, or integrally related to, an exempt governmental entity, and we shall adhere to our established grounds for evaluating such relationship. As noted above, Chairman Fanning relies only on the extent of control exercised by any governmental body in determining whether the Board should exercise its jurisdiction. 4 Cf. Roesch Lines, Inc., 224 NLRB 203 (1976); Embree Buses, Inc., 226 NLRB 714 (1976); Austin Development Center, Inc., 226 NLRB 134 (1976). 231 NLRB No. 75 520