Management Training Corp.

131 320 NLRB No. 34 MANAGEMENT TRAINING CORP. 1 317 NLRB 1355. 2 Member Cohen dissented from that decision. 3 The job corps program is currently conducted under the authority of the Job Training Partnership Act, Pub. L. 97–300, 96 Stat. 1322, 29 U.S.C. § 1501, 1691 et seq., as amended (JTPA). The same pro- gram was previously authorized under the Economic Opportunity Act of 1964, Pub. L. 88–452, §§ 101–109, 78 Stat. 508, 508–511 (repealed 1981), and the Comprehensive Employment and Training Act of 1973, Pub. L. 93–203, Title IV, 87 Stat. 839, 863–874 (re- pealed 1982) (CETA). The superseded DOL regulations to which the Board referred in its prior decision in this case were promulgated under the authority of CETA; the current regulations were promul- gated by DOL in 1990 to take account of the changes in Federal job training programs, including the job corps, under the JTPA. See 55 Fed. Reg. 12992, 12995 (1990). As noted above, those changes are not material to the issues presented in this proceeding. Management Training Corporation and Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 222. Case 27–RC–7473 December 18, 1995 ORDER DENYING MOTION BY CHAIRMAN GOULD AND MEMBERS BROWNING, COHEN, AND TRUESDALE On July 28, 1995, the Board issued its Decision on Review and Order in the above-entitled proceeding as- serting jurisdiction over the Employer, which operates a job corps center pursuant to a contract with the United States Department of Labor.1 In its decision, the Board overruled Res-Care, Inc., 280 NLRB 670 (1980), and established a new test for the assertion of jurisdiction over employers that operate under con- tracts with governmental entities: in determining juris- diction, the Board will only consider whether the em- ployer meets the definition of ‘‘employer’’ under Sec- tion 2(2) of the Act, and whether such employer meets the applicable monetary jurisdictional standards.2 On August 25, 1995, the Employer filed a motion for reconsideration. For the reasons that follow, the motion is denied. In our decision we noted that Res-Care appeared in- consistent with Federal legislation governing the rela- tionship between contracting private employers and government agencies, because such legislation con- templated that employers might be unionized and that terms and conditions of employment might be estab- lished through collective bargaining. Among other things, we cited U.S. Department of Labor (DOL) reg- ulations governing the job corps program, which pro- vided that private contractors would develop personnel policies and establish labor management relations in accordance with the provisions of the National Labor Relations Act. See 20 CFR §§ 684.120(b)(3) and (5). In its motion, the Employer asserts that the Board, in deciding to overrule Res-Care, erred in relying on 20 CFR § § 684.120(b)(3) and (5) because those provi- sions have been superseded. See 55 Fed. Reg. 12992, 13007 (1990). Although we agree that the language of §§ 684.120(b)(3) and (5) no longer appears in the DOL regulations, we note that those provisions were in force when Res-Care issued, and thus the Board’s decision in Res-Care was, at the time, at odds with the DOL regulations implementing the job corps program. Further, we note that the language of the current DOL job corps regulations also contemplates that job corps contractors might be unionized. Thus, 20 CFR § 638.814(d) prohibits the use of any funds provided to an employer under the Job Training Partnership Act for any activities that assist, promote, or deter union organizing. Likewise, the Job Training Partnership Act itself provides: ‘‘No program under this Act shall im- pair . . . existing collective bargaining agreements, un- less the employer and the labor organization concur in writing with respect to any elements of the proposed activities which affect such agreement, or either such party fails to respond to written notification requesting its concurrence within 30 days of receipt thereof.’’ 29 U.S.C.A. § 1553(b)(2) (1995 cumulative annual pocket part).3 These provisions clearly contemplate that pri- vate employers operating under the Job Training Part- nership Act, like the Employer here, might be union- ized or that their employees might seek to be rep- resented by a union. The Employer also asserts that it should be given the opportunity to further address the various grounds relied upon by the Board for overruling Res-Care. The Employer suggests that the Board either utilize the rulemaking process to establish jurisdiction or, if the Board wishes to use the adjudicative process, the case should be remanded to the Regional Director for an evidentiary hearing and further briefing and oral argu- ment before the Board. We see no need for rulemaking or for a hearing in this case as the facts were uncontested and known to all the parties. Moreover, as fully set forth in our prior decision in this proceeding, the Board has had exten- sive experience with the judicial issues presented in this proceeding. Under these circumstances, we find that the issues presented in this case are neither novel nor so complex as to justify further briefing or oral ar- gument. The Employer also argues that the Board’s discus- sion of Service Contract Act cases is irrelevant, that Res-Care has not been inconsistently applied, that the Board should not have focused on noneconomic mat- ters as those terms are also controlled by the govern- ment, and that any new test should require a showing that an employer has a certain degree of control over employment conditions before jurisdiction is asserted. 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD These contentions have already been fully considered by the Board, and we find them to be lacking in merit. ORDER The Employer’s motion for reconsideration is de- nied. MEMBER COHEN, dissenting. For the reasons set forth in my dissenting opinion in the Board’s Decision on Review and Order, I would grant the Employer’s motion for reconsideration and reverse the Board’s Decision.