Association for the Developmentally Disabled

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association for the Developmentally DisabledI and American Federation of State, County and Munici- pal Employees, Ohio District Council #53. Case 9-RC-12012 August 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Earl L. Ledford on May 11, 1977. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer filed a brief. 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 reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: Petitioner seeks to represent employees employed by Association for the Developmentally Disabled, hereinafter ADD, who are engaged in the provision of mental health services. ADD contends that it is exempt from Board jurisdiction as a political subdivision of the State of Ohio. The Supreme Court has held that employers are exempt political subdivisions under Section 2(2) of the Act if they are either (1) created directly by the State, so as to constitute departments or administra- tive arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorates The record demonstrates, and we find, that ADD is an agency of Franklin County and is thus exempt from the Board's jurisdiction as a political subdivision of the State of Ohio.3 In 1967, pursuant to the requirements of chapter 340 of the Ohio Revised Code, Franklin County established the Franklin County Mental Health and Retardation Board (designated throughout the hear- ing, and hereinafter referred to, as the 648 Board) for the purpose of providing community services for The name of the Employer appears as amended at the hearing. 2 N.L.R.B. v. The Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600 (1971). :' In view of our holding herein we find it unnecessary to determine 231 NLRB No. 121 mentally ill, mentally retarded, and emotionally disturbed persons. In order for the 648 Board to carry out this function, the statute provides, in pertinent part, that the 648 Board shall: (D) Promote, arrange, and implement working agreements with social agencies, both public and private, and with educational and judicial agen- cies; (E) Enter into contracts with state hospitals, other public agencies, and with private or volun- tary hospitals and other private or voluntary nonprofit agencies for the provision of mental health and mental retardation service and facili- ties; * * * * (J) In the event a needed service cannot be provided by an existing public or private agency, directly operate a mental health or mental retardation facility until such time as this respon- sibility can be assumed by another agency. In 1970, the 648 Board called together a task force comprised of professionals and parents to study the problem of mental retardation in Franklin County. Thereafter, the task force recommended to the 648 Board that a residential and case management service be established in Franklin County. As a result, the 648 Board directly created ADD primarily for the purpose of providing residential services for developmentally disabled persons. ADD's first board of directors was composed of members of the task force which recommended the agency's creation. Prior to commencement of ADD's operations, William Gibson was hired by the 648 Board and placed on the county payroll to organize the new agency, prepare a budget, hire staff members, and prepare to assume the position of ADD's executive director during that period, and for a period of time after creation of ADD. Gibson and all of the individuals chosen to run ADD were included in the Ohio retirement fund for public employees known as the Public Employees Retirement System. Pursuant to a July 21, 1972, opinion of the Attorney General of the State of Ohio to the effect that those hired by the 648 Board to run ADD retained their status as public employees when they went to work for ADD, ADD now contributes to the Public Employees Retirement System on behalf of Executive Director Gibson and four of the original ADD staff members. whether ADD meets our commerce requirements. In addition, we find it unnecessary to pass on the issue of whether ADD's home administrators are statutory supervisors. 784 ASSOCIATION FOR THE DEVELOPMENTALLY DISABLED ADD, a nonprofit corporation incorporated in the State of Ohio, maintains residential, day care, and respite care programs for developmentally disabled Ohio residents pursuant to its contract with the 648 Board. ADD provides residential services, which include training in independent living skills for young mentally retarded adults between the ages of 18 and 40, at its seven group homes and four apartment units in Franklin County. The vast majority of these clients are referred by the State of Ohio, and at least 50 percent of them come from state institutions for the mentally retarded. 4 None of the clients come from outside the State of Ohio. Three of the group homes are owned by the Franklin County Board of County Commissioners and are leased to ADD by the 648 Board. The remaining four group homes are leased from private owners. An eighth group home has recently been purchased by ADD but was not yet in operation at the time of the hearing. While the 648 Board will reimburse ADD for the total cost of this additional facility, the 648 Board will also require that all of the residents at the new home be referred from Ohio state mental institutions. ADD also maintains six apartment units in Delaware County.5 In addition to its residential facilities, ADD also operates a respite center. The center is owned by the State of Ohio and is located on the grounds of the Columbus State Institute, a state institution for the mentally retarded. The respite center consists of two homes, one for children and one for adults. Respite center clients are provided with temporary care when special circumstances-such as a mother's illness- prevent the client's family from taking care of him. ADD also operates a day care center for develop- mentally disabled children and assigns professionals to each of the major Franklin County mental health centers for purposes of consultation. ADD's income is, for the most part, derived from Federal, state, and county sources. In fiscal year 1976, ADD obtained over $830,000 in income; 24 percent came from the Federal Social Service Reimbursement Program; 50 percent came from funds generated in part by a Franklin County mental health and retardation levy and in part by State of Ohio matching funds; 16 percent came from resi- dents' fees for room and board; and the remainder came from special state grants from the Ohio Office of Developmental Disabilities and from State Con- struction Assistance. All of these revenues, except for residents' fees, were paid to ADD through the 648 ' ADD is required to consult with one of the divisions of the Ohio Department of Mental Health and Mental Retardation prior to admitting or removing a state-referred resident. With respect to the Delaware CountS apartments. ADD has. with the approval of the 648 Board, executed a separate contract with the Ohio Department of Mental Health and Mental Retardation. The department Board. ADD is required to remit residents' fees to the 648 Board. Such fees may be paid to ADD at the discretion of the 648 Board once the 648 Board approves ADD's operating budget. ADD may not exceed or change its budget without the express approval of the 648 Board. ADD is contractually required to comply with the 648 Board's policy and procedure manual. The manual requires, inter alia, that all gifts, donations, and rental income received from properties pur- chased for ADD's use with program funds must be returned to the 648 Board for use in paying program expenses. The manual also provides that at the end of the fiscal year all unencumbered balances will revert to Franklin County to be reallocated to the next fiscal year's programs. The manual specifies that ADD may purchase nonexpendable property through the 648 Board's administrative office and that title to all property obtained through state and county funds shall reside in the 648 Board. Accord- ing to the testimony of Executive Director Gibson, all items over $50 must be purchased for ADD by the 648 Board. The 648 Board's policy and procedure manual also directs audits of ADD by the 648 Board. Executive Director Gibson testified that such audits are conducted annually. Gibson further testified that ADD is subject to audit by the State of Ohio but that such an audit has not been conducted in approxi- mately 2 years. In addition, the 648 Board performs all of ADD's accounting, with the exception of books of original entry. Thus, the 648 Board processes ADD's invoices, pays its bills, prepares its tax returns, and prepares and pays its payroll. With respect to the latter, the 648 Board prescribes ADD's payroll reporting procedures. After ADD submits a monthly computerized list of its employees to the 648 Board, the latter issues paychecks bearing the signatures of the 648 Board's executive director and business administrator. ADD is required to adhere to the State of Ohio Position Classification booklet which lists all state job classifications and corresponding rates of pay. In addition, the 648 Board prescribes the employment application form used by ADD. Executive Director Gibson testified that, although prior to October 1976 ADD could not hire or change the positions of employees without written authorization by the 648 Board, in October 1976 the 648 Board changed its procedures so as to permit ADD more flexibility in its personnel policies. Gibson further testified, provides 50 percent of the capital funding and retains partial title to the property and all the furnishings. By agreement. at least half of the residents of these units must be admitted directly from Ohio state mental institutions. When ADD admitted two clients above its quota for pnvate admissions, the department refused to reimburse ADD for their care. 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, that the 648 Board retains statutory authority to return to its pre-October 1976 proce- dures. ADD has a board of directors composed of 17 individuals which has its own nominating process and is self-perpetuating. The ADD board of directors reports, however, to the 648 Board, which can disapprove of an action passed by the ADD board of directors and, according to Executive Director Gibson's testimony, "make it not happen." Finally, the State of Ohio has recently required ADD to amend its bylaws so as to add the words "to fulfill a public purpose" to the description of its services, and has in addition required ADD to amend its articles of incorporation so as to provide that the State of Ohio will be a party to any judicial or other dissolution proceeding or agreement involv- ing ADD and may enjoy the status of a distributee. In light of the above evidence and the record as a whole, we find that ADD is an agency of Franklin County and is thus exempt from the Board's jurisdiction as a political subdivision of the State of Ohio.6 ADD was created directly by the 648 Board, which is part of the government of Franklin County, to fulfill Franklin County's statutory obligation under section 340 of the Ohio Revised Code to provide mental health services. It thus satisfies the 'i See Caimden-Clark Memorial Hospital, 221 NLRB 945 (1975). first test for exemption as a political subdivision set forth in Hawkins County, supra; i.e., it was "created directly by the State." In addition, ADD does not serve clients from outside the State of Ohio; at least 75 percent of ADD's funding is from governmental sources; several facilities operated by ADD are either owned by or were paid for in whole or in part by the State of Ohio or by Franklin County, and all of ADD's nonexpendable property is titled in the 648 Board; the 648 Board performs all of ADD's accounting except for books of original entry, pays the salaries of ADD's employees, purchases all items over $50 for ADD, requires ADD to adhere to its policy and procedure manual and to the State of Ohio's Position Classification booklet, and may refuse to sanction actions passed by ADD's board of directors. It is clear from the foregoing that ADD is a political subdivision of the State of Ohio and that it is therefore exempt from Board jurisdiction under Section 2(2) of the Act. As we have concluded that ADD is exempt from coverage of the Act, we shall dismiss the instant petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 786