The Big East Conference

BIG EAST CONFERENCE The Big East Conference and Collegiate Basketball Officials Association, Inc. Case 4-CA-14754 1 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 29 May 1986 Administrative Law Judge Robert A. Giannasi issued the ' -attached decision. The General Counsel and the Charging Party filed exceptions and 'supporting briefs, and the Respond- ent filed a cross-exception and a brief in support of its exception and in response to, the exceptions of the General Counsel and the Charging Party. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of 'the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended' Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I In agreeing with the judge that the officials under contract with the ECBA are independent contractors, we find it unnecessary to rely on his finding that the officials' capacity to alTect their working conditions by negotiating through an agent, the CBOA, supports the inference that they are independent contractors. William Slack; Esq., for the General Counsel. Alvin M. Glazerman, Esq. (Edwards and Angell), for the Respondent. Alan D. Berkowitz, Esq. (Dechert, Price & Rhoads), for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case was tried on 21, 22, and 23, October 1985 in Philadelphia, Pennsylvania. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Charging Party, Col- legiate Basketball Officials Association, Inc. (CBOA), which represents the Respondent's men's basketball offi- cials by virtue of successorship bargaining rights. The Respondent allegedly succeeded to a bargaining obliga- tion between the CBOA and the Eastern College Basket ball Association (ECBA), an organization that supervises basketball officials represented by CBOA. The Respond- ent denies the allegations. It contends that the Board lacks jurisdiction over its operations because two of its nine-member schools are public universities and not sub- ject to the Act, that the basketball officials are independ- 335 ent contractors and not employees, subject to the Act, and that it did not, by establishing its own basketball offi- ciating program in the summer of 1984, succeed to the bargaining obligations of ECBA, the organization that dealt with CBOA. I have received briefs and reply briefs from the General Counsel and the Respondent and a reply brief from the Charging Party that I have read and considered.' Based oil the entire record, including my assessment of the credibility of the witnesses, based in part on their de- meanor, I make the following2 FINDINGS OF FACT I. BACKGROUND A. The ECBA and the CBOA The ECBA is an affiliate of the Eastern College Ath- letic Conference (ECAC), an unincorporated association headquartered in Centerville, Massachusetts. Over 200 colleges and universities are members of the ECAC to which they pay an annual- fee. ECBA, through an associ- ate commissioner and five regional basketball supervisors and other staff, provides and supervises a basketball offi- ciating service for ECAC members. ECAC members have the option of deciding on a yearly basis whether to purchase the officiating services provided by ECBA and must 'pay an additional annual fee ifthey elect to do so. Nonmembers of the ECAC may also elect to use the of- ficiating services by paying this additional fee. For exam- ple, the University of Pittsburgh, a nonmember, did pay such a fee during the 1983-1984 basketball season" and utilized the ECBA officiating service. Member schools have the option of renewing or withdrawing their mem- bership annually. The CBOA is an organization of college basketball of- ficials who reside in the ,northeastern United States. The CBOA constitution describes as one of its objectives "To cooperate with the [ECBA] in making available for inter- collegiate basketball games a roster of capable and com- petent officials." The CBOA accepts as members only those officials who are members of the International As- sociation of Approved Basketball Officials '(IAABO) and who have passed the IAABO written examination and floor test. Referees who become members pay a $5 initiation fee and $25 annual dues to CBOA, They progress from asso- ciate to varsity membership status. The CBOA has some 500 active members, 350 of whom are classified as varsi- ty officials. Associate members work subvarsity games. Varsity officials, who pay dues of $35, progress from working Division 3 to Division 1 games depending on their experience and competency. Division 1 games in- I Certain errors in the transcript have been noted and corrected as set forth in App. A of this decision [omitted from publication]. 2 I am unaware of any significant conflicts in testimony, However, I believe that all the witnesses shaded their testimony to some extent in order to support their own interests. I have taken this into account in making my findings and I have also relied considerably on the documen- tary evidence that is of course much less subjective than the testimony. 8 The basketball season runs generally from mid -November to mid- or late March of the following year. 282 NLRB No. 50 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volve the larger colleges or universities whose basketball programs are of the highest caliber.4 The constitution makes it -clear that membership makes officials eligible to work only ECBA assignments. The CBOA constitution also describes a rating or eval- uation procedure that is conducted each year jointly by the CBOA and the ECBA whereby all officials are rated on their previous year's performance. The rating affects an official's CBOA membership as well as the quality and quantity of his assignments from ECBA. An official may be promoted from associate to varsity status, demot- ed from varsity to associate status, or dropped from membership altogether. The constitution provides that up to 15 percent of the lowest rated associate members in each of several geographical areas may be dropped from varsity to associate membership or from complete mem- bership each year. In addition, the constitution states that any member who does not become a varsity official within 6 years shall be dropped from membership. CBOA admits some 45 to 50 new members each year. Typically, an applicant has officiated high school games and makes written application for, membership. He pays a nominal processing fee and is rated by the CBOA. If he is selected at the ECBA annual rating meeting, he then is offered membership in the CBOA and becomes eligible to work ECBA games.5 The rating procedure described in the CBOA's consti- tution is also part of a CBOA-ECBA agreement. The two parties have had a contractual relationship for many years. The 1983-1984 agreement does not in specific terms provide for the recognition of the CBOA as the bargaining representative of the ECBA officials. It states simply that the parties "are desirous of. entering into an agreement whereby the CBOA will supply basketball of- ficials to be assigned by the ECBA to basketball contests of member institutions ...." The agreement provides that the CBOA "in cooperation with the ECBA will train and maintain a staff of capable officials ...." The agreement also provides that ECBA will use only mem- bers of CBOA except that ECBA may make assignments if qualified and competent officials are "not otherwise available among the CBOA membership." The 1983-1984 agreement provides that CBOA and ECBA agree to compile officials' ratings in accordance with the CBOA constitution and the agreement. The rat- ings of officials are based on the following factors: 40 percent from recommendations and ratings by the ECBA college coaches; 40 percent from the ratings of fellow of- ficials; 10 percent from the ratings and views of the ECBA, based on part from reports of supervisors 'and paid ' observers who attend every game for the specific purpose of evaluating the officials and giving opinions on the "consistency and interpretation of the NCAA rules and the mechanics associated with it," as well as other matters "pertinent to the game conduct"; and 5 percent each for attending the annual clinic sponsored by the ECBA and for passing a written examination. A list is 1 About 30 percent of the ECBA member schools are m 'Division 1, 20 percent in Division 2, and 50 percent in Division 3. S CBOA rules permit officials to work professional games, but state that "no member may work college games and professional games in the same season." then 'prepared ranking each official in ,each geographical area of ECBA-CBOA activity. As a result of the rank- ings, the ECBA determines the number and quality of games each official' will receive for the following year. However, even apart from the rankings, the ECBA makes game assignments based on its assessment of an of- ficial's "experience and expertise." The 1983-1984 CBOA-ECBA agreement also provides for an assignment procedure for games to be worked by CBOA officials, for the payment of an assessment by the officials to the ECBA by the officials based on the number of ECBA games they worked, and for a griev- ance procedure whereby the CBOA represents officials in submitting complaints to ECBA with respect to ad- ministration of the officiating program.5 The agreement also provides for a fee payment schedule for the CBOA referees. The payment for refereeing Division 1 games was $150 plus per diem and travel allowance, with lesser amounts provided for Division 2 and Division 3 games.' The fees are paid for each game by the home team, based on a computation made by the ECBA. With one exception, ECBA schools do not deduct social security, unemployment, or workman's compensation payments or withhold income taxes from the total fee paid to the offi- cials. The parties also agreed to share the costs and expenses of the assignment procedure. Thus, each CBOA member is responsible for paying ECBA an annual assessment based on his membership status and the number of as- signments he receives each year. In 1983-1984, the as- sessment schedule was as follows: PAYMENT 1. Varsity officials receiving 30 - $200 assignments or more 2. Varsity officials receiving 20-29 125 assignments 3., Varsity officials receiving 5-19 60 assignments 4. Varsity officials receiving less than 20 5 assignments 5. Subvarsity officials 15 A subsequent agreement sets forth a greater number of categories and an assessment that ranges from $20 to $360 per year. B. The Relationship Between ECBA and its Officials The ECBA utilizes about 350 to 400 officials each year. ECBA officials work anywhere from 3 to 55 games 6 CBOA Executive Secretary Frederick Hess testified as follows about the 10 to 15 complaints he processed each season. The officials would sometimes complain that they did not receive games, the proper number of games in relationship to their position on the rating list They would complain that they didn't receive the proper mileage allowance for travel expenses . They would complain that the schools had not paid them promptly, and I would submit these complaints to the ECBA Assistant Commissioner and ask him to have them rectified. r Actually there are two Division 1 rates The home team can deter- mine which rate will be paid. The higher rate is paid by schools with a more significant basketball program and attracts higher ranked officials. All officials are paid the same rate for Division 2 and 3 games. BIG EAST CONFERENCE 337 per year; the average official may work 30 games per year for the ECBA. The overwhelming majority of offi- cials have full-time careers other than their work for ECBA. Many, perhaps most, also officiate games for other conferences and schools not affiliated with ECBA.8 The ECBA undertakes to make game assignments based on schedules submitted to it by the member schools and its assessment of the officials based on the annual evaluation program set forth in the CBOA-ECBA agreement. A significant part of the evaluation program is the input of ECBA supervisors and observers as well as the coaches of member schools. The ECBA supervi- sors actually give a rating to the officials that comprises 10 percent of the total rating. Even apart from the rat- ings, ECBA supervisors may take into account an offi- cial's experience and expertise in assigning so-called qual- ity games. The more highly rated officials are assigned the more difficult games. In the spring of each year, the ECBA sends officials an availability card with a list of dates for the upcoming season-November through March. The covering letter asks the officials to block out dates that they wish "to close," that is, not to work. A typical letter, which sum- marizes the assignment provisions of the CBOA-ECBA agreement, reads as follows: 1. CBOA members are permitted to close dates for purposes other than accepting assignments from non-ECBA four year colleges, provided they do so in writing when returning this card. 2. All dates not closed as in paragraph 1 shall be kept open until October 1, 1983, with the following exceptions: (a) If a CBOA member wishes to request an ac- commodation to accept assignments from non- ECBA four year colleges, he must submit a re- quest in writing prior to June 30, 1983. This re- quest must indicate the specific dates on which the official is requesting accommodation. (b) All such requests shall be granted or denied by ECBA during the last week in July, 1983 but no later than July 31, 1983. Any denial of such requests shall be reviewed by the ECBA Com- missioner before it is communicated to the re- questing official and can be appealed as set forth in the ECBA/CBOA Agreement. 3. After October 1, 1983, CBOA officials shall have the right to close additional dates without restric- tions. However, they will keep the ECBA notified of additional dates closed after October 1 of each year. It is expected that all CBOA officials will accept any assignment offered after October 1 on which he has not closed the date. Failure on the part of a member to accept such an assignment will be fully evaluated in the ECBA rating as well as in consideration for any additional games that season.9 After the ECBA receives the completed availability card from an official, the ECBA sends the officials an in- dividual contract form and assignment sheet that lists the dates for games the official was selected to work. The in- dividual contract is mailed about August or September of each year. The contract, which must be signed by the official, provides that, as a condition precedent to the offer and acceptance of the contract, the official agrees to "serve as an independent contractor and not as an em- ployee," to hold the ECBA harmless for any injury or damages resulting from any of the assignments,10 that he is fully insured for medical expenses, and that any assign- ment is subject to cancellation by the Commissioner of the ECBA when "in his sole judgment, [he] deems such cancellation to be in the best interest of the confer- ence.11 The official returns a signed copy of the individual contract indicating the assignments he accepts and those that "he could not accept." Those assignments that have not been accepted are reassigned-usually after 1 Octo- ber-until all the assignments are completed. A third mailing, shortly before each assigned game, notifies the official again of the date of the game and, for the first time, informs him of the opposing teams and the location and time of the game. The final notice also in- cludes the amount of the fee, travel expenses, and per diem rate to be paid to the official by the home team. A copy of this game assignment sheet is also sent to the colleges involved. If an official becomes unavailable for, or is unable to attend, a particular game because of illness or weather, the assistant commissioner is to be notified and the ECBA chooses an alternate or substitute official. Offi- cials were not permitted to choose substitutes on their own. On rare occasions the ECBA might utilize non- CBOA members. However, the ECBA has never termi- nated an official who was on the eligibility list for a par- ticular season. The ECBA requires its officials to wear the traditional basketball officials' uniform: black pants, socks and shoes, a black and white striped shirt, and a navy blue jacket with a Collegiate Commissioner's Association (CCA) patch on it. The official is responsible for providing his own uniform as well as a whistle. The cost of these items is approximately $150. The officials are, of course, expected to be knowledge- able in the rules of basketball. They are expected to be aware of the responsibilities of an official as published in the manual of officials of the CCA and the rules and in- terpretations manual published by the National Collegi- 8 Usually the ECBA provides two officials per game However, some schools-those with more competitive basketball programs-use three of- ficials During the 1983-1984 season, the Respondent's nine-member schools and one other conference within ECBA utilized three officials per game In addition, five other ECBA schools utilized three officials when they played each other . Thus, a total of about 21 teams in the ECBA-about 10 percent of the total-utilized 3 officials per game 8 The 1983-1984 CBOA-ECBA agreement provides that CBOA mem- bers "shall give priority to ECBA assignments as provided in Paragraph 21 Cora United States District Court Consent Decree] . " The record contains no explanation of the consent decree 10 Part of the officials' dues to the CBOA is used to purchase a group liability insurance policy ' I This contract form has been utilized for at least 7 or 8 years 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ate Athletic Association (NCAA). The ECBA tests the officials in written form each year and the results are taken into account in the evaluation process. The test, which is prepared by the CCA, covers the rules of bas- ketball and "floor procedures" of the officials during a game. The ECBA also expects its officials to attend a 1-day clinic that it conducts before the beginning of each bas- ketball season. ECBA holds a clinic in each of its geo- graphical subdivisions. The ECBA supervisor and per- haps a guest speaker discuss, inter alia, any rule changes from the prior season, how the ECBA wishes certain play situations to be handled, where,officials should posi- tion themselves on the court, and how to deal with the media. Attendance at the clinics is taken into account in the evaluation process. However, the officials are not compensated for attending the clinic and they must pay their own expenses in connection with their attendance. During a game, which lasts from 2 to 2-1/2 hours, the officials are in full control. Their calls and interpretations are not appealable. During the season, the ECBA supervisors attend games, observe the officials, and critique the officials' performance. Before the games, the supervisors may talk to officials to alert them about how to handle coaches, game situations, and possible criticism. At half-time inter- mission, the supervisor may come into the locker room and speak to officials about missed calls, officials being out of position, or other situations that occurred during the first half. The ECBA also hires independent observ- ers to undertake this same critique function at games that the supervisors cannot attend. - The observers and supervisors report the results of their observations in writing to the ECBA. According to Former Associate Commissioner Arthur Hyland: We had provided them with a form, which had areas of officiating expertise, which were basically out of the manual and the rule book and we asked the observers to signify in those blanks how the of- ficial was-whether or not the official was in con, formance with the NCAA rules and mechanics. During the season, the ECBA also sends periodic bul- letins to the officials. The bulletins are addressed to "Athletic Directors, Coaches and Officials." Bulletins specify such things as NCAA rule, changes from the prior season and points of emphasis in the rules. The bul- letins also include reminders that, in the event of an emergency necessitating a change in schedule, home teams and officials are to notify the ECBA. Some bulle- tins describe home team responsibilities. Bulletins also remind coaches and officials of such matters as bench de- corum, explanation of calls, and personal conduct of offi- cials on the floor before games. Other items deal with re- minders to officials of provisions in the general CBOA- ECBA agreement and different aspects of game situa- tions such as calling out-of-bounds plays, informing the scorer's table of fouls, and positioning 'during particular plays. One bulletin' emphasizes that officials are not to make collect calls to ECBA. The bulletins specify ways to resolve game situation problems. In this respect, bulletins include material simi- lar to that which appears in the NCAA rule book and the CCA manual. There is nothing in the bulletins that is inconsistent with those documents but they do specify different points of emphasis. Former Associate Commis- sioner Nyland testified that the subject matter of the bul- letins was based, in part, on reports made to him by his supervisors. He testified as follows: I would receive reports from our supervisors, which would indicate those areas of the basketball rules and the mechanics in which they felt that' the officials were not conforming, to the standards set forth by the, NCAA and the CCA, and I would compile those in the bulletin and send them out to the ' general membership and I will attempt-I am sorry-I would send them out to the membership of the ECAC to the coaches and to the officials asking their cooperation in trying to conform to those NCAA standards. - C. The 1984 CBOA-ECBA Negotiations At the conclusion of the 1983-1984 season the CBOA and ECBA participated in negotiations over a new con- tract. ECBA broke off negotiations in June 1984 and in- dicated that it no longer desired a relationship or con- tract with CBOA.12 As a result, CBOA filed charges with the Labor Board and the General Counsel issued a complaint alleging that the ECBA unlawfully refused to bargain with the CBOA. The parties did not have a con- tract during the 1984-1985 season and the ECBA unilat- erally set forth the working conditions and fees for its of- ficials for that season. Ninety percent of CBOA members accepted the ECBA terms, but about 10 percent did not and refused to work ECBA games under individual con- tracts. The Labor Board case was subsequently settled and the parties-resumed bargaining. They entered into an agreement covering the 1985-1986 season that extends through the 1987-1988 season. During its dispute with ECBA, CBOA sent a form letter to the athletic directors of ECBA member schools and offered to "service" individual schools by providing "a complete and total assigning service" for $180 per season. The letter, which was dated 15 June 1984, con- tinued, "Besides assigning competent and honest men to your games from our list of certified officials we will also provide you with individual game notices and a complete rating system that will assure your school that they have a voice in determining who will work your games. This can be done on a conference or individual school basis." The CBOA does not have any agreements similar to the ECBA agreement with any other colleges or univer- sities. But it does provide referees to six other schools in Pennsylvania on an individual basis. Those schools pay 12 One of the reasons for the ECBA action was its contention that the officials were independent contractors and not employees. Earlier in the negotiations, ECBA had apparently attempted to obtain some language in the general agreement relating to independent contractor status. The CBOA rejected this proposal. BIG EAST CONFERENCE 339 the CBOA for providing this service and, in exchange, the CBOA assigns officials for about 10 games annually for each school. The schools pay the officials directly. Apparently these schools utilized the CBOA service based on the form letter sent by CBOA offering its serv- ices to athletic directors during the 1984 dispute with ECBA. In addition, for some 10 years, CBOA has pro- vided officials for the MJCAA, a junior college confer- ence made up of 16 members who pay a fee to CBOA for this service. The CBOA selects the officials for these games and the officials are paid directly by the schools. Each of the MJCAA schools utilizes CBOA referees for an average of 9 or 10 games per year. The CBOA also apparently provides officials to another group of schools-the so-called Atlantic 10 Conference-but the details of this relationship is unclear on this record. A section of the 1985-1988 CBOA-ECBA agreement recognizes that the CBOA may continue to perform offi- ciating services for certain named schools. But the sec- tion restricts future CBOA officiating services by stating that CBOA will not undertake to perform "assignment services" for any other 4-year colleges and that CBOA agrees not to solicit any other school for the perform- ance of "such assignment services even though such services were to be performed after the expiration of this Agreement." D. The Respondent's Relationship with its Officials Respondent Big East Conference (also referred to as Big East) was formed in June 1979. It is composed of nine-member schools. All the member schools, except for the University of Pittsburgh, were and are members of ECAC. All, including Pittsburgh, utilized the basketball officiating services of ECBA. The Respondent's basket- ball schedule provides that each member team plays the others at least two times. The Respondent's members continued to use officials provided by the ECBA to referee the regular season men's basketball games that they played against each other through the 1983-1984 season. During the 1983- 1984 season-and in the several prior seasons during which the Respondent was in existence-the ECBA at- tempted to assign particular referees to the Respondent's games. The selection of those officials was based in part on the desires of the coaches of the Respondent's member schools. However, it is clear that these officials also worked other ECBA games and perhaps other col- lege games in different basketball conferences or associa- tions. In May 1984, the Respondent decided that its members would stop using officials provided by the ECBA to ref- eree their games. It established a Bureau of Officiating for men's varsity basketball games between the Respond- ent's members. The Respondent's commissioner, David Gavitt,' 3 hired Arthur Hyland, the ECBA's associate commissioner in charge of basketball officiating, as su- pervisor of the men's basketball officials. The Respond- ent also provided for the hiring of paid observers to evaluate its officials. 13 Gavitt was acting commissioner and worked part time in that capac- In late May or early June 1984, each of the Respond- ent's members notified the ECBA that it was withdraw- ing from membership and would not use the ECBA offi- ciating service for the 1984- 1985 men's varsity basketball season. After consulting coaches for member teams, Hyland selected a number of basketball officials who would be utilized by the Respondent for the upcoming season. By July 1984, 36 officials had returned signed in- dividual contracts to the Respondent to officiate Big East games . Of these officials 30 had previously been ECBA officials and were thus members of CBOA. The vast majority of the officials offered contracts had refer- eed Big East games in the prior season. Even after the Respondent decided to administer its own officiating program, Big East officials continued to work ECBA as well as other non-Big East college bas- ketball games . A survey of Big East referees reveals that, during the 1984-1985 season, they worked from a low of 12 to a high of 59 non-Big East college games. That same year, officials were offered Big East game dates numbering from a low of 3 to a high of 24. Thus, it is obvious that some Big East officials probably officiated more non-Big East games than Big East games. Eugene Monje, who was one of the most utilized of the Big East referees, actually worked 20 ECBA games in 1984-1985 and was offered 19 Big East games that year. All the Big East officials had full-time jobs other than officiating bas- ketball games. The Respondent's officials signed one of three differ- ent kind of contracts with the Respondent for the 1984- 1985 season. Category A officials are of the highest qual- ity. Their contracts require that the officials give the Re- spondent first priority in assignments over assignments from any other source prior to 15 July 1984. Thereafter they are free to accept other assignments. During the months of January, February, and March, the Category A official agrees not to officiate more than four games per week "fron3 any source" without the express consent of the Respondent. There is no limitation on the number of assignments that could be accepted during the months of November and December. During the 1984-1985 season, the Respondent engaged 15 Category A officials, all but one of whom had been ECBA officials. Category B officials are of the same quality as Catego- ry A officials but they work primarily for other confer- ences . A Category B officials' contract provides that he is to give Big East assignments "priority over assign- ments from any source other than the one conference to whom he has previously committed himself until 15 July 1984 following which time he is free to accept other as- signments from other assigning agencies." During the 1984-1985 season, the Respondent engaged five Catego- ry B officials, only one of whom was known to have been an ECBA official. The Respondent attempts to utilize as many Category A officials as possible for its games and also attempts to have two out of three officials for each game be Catego- ry A or B officials. Indeed, in an important game, the Respondent might utilize three Category A officials ity until 1 July 1982 when he was appointed as full-time commissioner rather than two. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Category C officials are not as high quality as Catego- ry A or B officials and they are given assignments as needed. They may accept or reject assignments with no obligation. During the 1984-1985 season, the Respondent engaged 16 Category C officials, all of whom had been ECBA officials.14 The Respondent's contracts with its officials include provisions concerning the officiating fee, per diem rates, and travel expenses. The fees are paid for each game by the home team with no deductions for income tax with- holding, unemployment compensation, social security taxes, or workmen's compensation. The Respondent's of- ficials are expected to referee intraconference games, as well as nonconference games where a Big East member is the home team. The contracts also include provisions stating that the official agrees that his, legal status is that of an independent contractor, that the official is responsi- ble for obtaining disability and medical insurance, that he will hold the Respondent harmless from any liability in connection with his performance of services, and that the Respondent has the right to cancel the contract and any assignments whenever the official fails to perform or for reasons beyond his control is unable to perform his obli- gations under the contract. The contracts also require the officials to attend an officiating clinic sponsored by the Respondent and provide that unauthorized absence from the clinic may result in the loss of assignments. Unlike the ECBA officials, the Respondent's officials do not pay an annual assessment fee based on the number of assignments they receive. Their 'contracts were not subject to negotiation and were not altered as written and proposed by the Respondent, although some officials asked questions about how the travel provisions applied. Hyland attends games to observe officials. Afterwards he might discuss with officials whether a call was proper or in conformity with appropriate NCAA rules or whether an official was out of position. Observers who perform the' same function make written reports to Hyland on forms similar to those utilized by ECBA. Hyland also views videotapes of games-10 to 15 during a season-to assess the performance of officials. Hyland also sends the officials periodic bulletins similar to those sent by ECBA. At the end' of the season, the Big East coaches submit written evaluations to the Respondent similar to those submitted under the ECBA evaluation program. Hyland meets with the member coaches at the end of the season to decide which officials will be offered contracts for the following year. Hyland makes comments on his assess- ment of the officials. All but two or three of the officials who worked the 1984-1985 season were given contracts for the 1985-1986 season.15 14 For the 1985-1986 season, the Respondent utilized 10 Category A officials, 7 Category B officials, and 26 Category C officials. Documenta- ry evidence reveals that the A officials were assigned between 19 and 28 games that season; the B officials were assigned from a low of 4 to a high of 16 games; and the C officials from a low of 2 to a high of 11 games. 15 The Respondent selects the officials for its championship tourna- ment by virtue of ratings submitted by the coaches of the member schools These selections are made with no input from the observers. E. The CBOA's Request to Bargain with the Respondent On 5 July 1984, the CBOA, in a letter to the Respond- ent written by its 'executive secretary, Frederick Hess, stated that "[w]e are writing to you as the collective bar- gaining representative of our membership" and asked "to negotiate a collective bargaining agreement, on behalf of our membership," with the Respondent. On 23 July 1984, the Respondent, through its attorney, responded that it was reviewing Hess' letter. Thereafter, on 22 Oc- tober 1984, Commissioner Gavitt responded more fully by stating that, because the Respondent believed that its officials were independent contractors and "for other' reasons," the Respondent declined Hess' offer to negoti- ate a collective-bargaining agreement. On 20 February 1985, CBOA, through its attorney, requested recognition for "all of the officials employed by [Respondent]," stat- ing its belief that the Respondent was a "successor em- ployer." There was no response to this letter. II. JURISDICTIONAL BASIS OVER THE RESPONDENT'S OPERATION' The Respondent is a nonstock, tax exempt corporation that was formed in the District of Columbia in June 1979. The original members were Syracuse University, Saint John's University, Georgetown University, The University of Connecticut, Seton Hall University, Boston College, and Providence College. Villanova University and the University of Pittsburgh became members in 1980 and 1982, respectively. Pittsburgh and Connecticut are public universities and are not employers within the meaning of Section 2(2) of the National Labor Relations Act. The Respondent's other seven members are private universities and are employers within the meaning of Section 2(2) of the-Act. Each of the member schools designates an official-ac- tually the athletic director-to serve. as a member of the board of directors. Each director has one vote and the votes are equally weighted. The board has three regular meetings each year. The Respondent acts through its board of directors and David Gavitt, its commissioner and chief executive officer, in administering the sports program between the member schools. Member schools compete against each other in 16 sports. The Respondent maintains a sports committee for each of these sports. Competition in 12 of the sports is limited to a champion- ship tournament that is held at the end of the season. These championship tournaments are arranged and paid for by the Respondent. In four sports, including men's basketball, the Respondent's members compete against each other during the season as well as during a season ending championship tournament. The Respondent has its own bank accounts, budgets, and financial statements. Its chief revenue sources are tel- evision rights, the net proceeds of its championship tour- naments, and shares of NCAA tournament revenues. The largest single revenue source is from television rights. These revenues are disbursed to the member schools under various formulae adopted by the Respondent's board of directors. The Respondent negotiates its own TV and radio contracts covering the games between its BIG EAST CONFERENCE members. The Respondent also compiles statistical infor- mation regarding the performance of its member teams. Effective in May 1985, the Respondent formed Big East Productions, a subsidiary organization that is involved in the production of games for television, as well as public service spots and halftime shows in coordination with its member schools and local television stations. The Respondent's offices are located in Providence, Rhode Island. The Respondent employs a staff that in- cludes a commissioner, an associate commissioner, an as- sistant commissioner, a director of championship, a com- munications assistant, five full-time management staff people, two secretaries, and one intern. Commissioner Gavitt described the duties of the four managers under his supervision as follows: [The A]ssociate commissioner is responsible under my direction for the day to day management of conference's television programs, both rights and productions, monitoring and coordination [sic] the various broadcast plans that we have under con- tract. He is also the chief man responsible for the financial and staff day to day financial and staff [sic] reporting of the conference. The assistant commissioner/public relations is primarily responsi- ble for the development in maintaining [sic] of the corporate relationships that the conference has with various corporate entities relating to our athletic or academic programs. He is also primarily involved in the communication areas in terms of the print publi- cations that the conference puts out which are sub- stantial and he has an assistant, who is full time, whose title is communciation assistant, who works in that area, also doing special projects; such as, international exchange programs we have from time to time with the federations of foreign countries. The Director of Championships-her responsibility is primarily in the fifteen other sports other than men's basketball and she is the prime resource person and staff person, who coordinates with the various sports committees that are entrusted with the management, of all fifteen of those champion- ships. She also serves as the primary liason person between the primary women's administrator at the nine various schools in the conference office. Each of the nine-member schools paid $25,000 into the Respondent's treasury at the time they became members. In May of each year, the Respondent's board of directors estimates the amount that will be needed to operate the Respondent during the following year. It then subtracts this amount from the Respondent's revenues for the pre- ceding year and distributes the remainder in equal shares to the Respondent's nine members. The most important sport whose program is adminis- tered by the Respondent is men's basketball-its "show- case sport"-which provides about 90 to 95 percent of its revenues. As set forth in part I of this decision, the Respondent has undertaken to operate and supervise its 341 own men's basketball officiating program.1°he Respond- ent selects, contracts with, assigns, and supervises the of- ficials. During the Respondent's season ending men's bas- ketball tournament and in some preseason games with touring foreign teams, the Respondent pays its basketball officials directly. For all other games the home team pays the referees. The Respondent alleges that the Board lacks jurisdic- tion over it because two of its members are not employ- ers within the meaning of the Act. It cites and relies on Assn. of Hospitals of Santa Clara County, 228 NLRB 1014 (1977), where the Board, in considering a unit clarifica- tion petition, found inappropriate for bargaining a unit composed of four statutory employers and one exempt public employer and therefore declined to assert jurisdic- tion. (Id. at 1015.) The Respondent argues that it oper- ates much as a multiemployer association because its de- cisions are implemented by a board of directors com- posed of representatives from all nine schools, two of which are exempt employers, and that the schools are joint employers with the Respondent because they are the ones that pay the referees. The General Counsel counters that the Respondent is a separate entity that ad- ministers its own budget and supervises the basketball of- ficials whose representative status is the subject of this proceeding. The General Counsel argues that the Re- spondent's operations are more akin to those in Southwest Texas Public Broadcasting Council, 227 NLRB 1560 (1977), and Truman Medical Center, 239 NLRB 1067 (1978), in which the Board took jurisdiction over non- profit corporations even though constituent boards were composed in part of representatives of public exempt in- stitutions. I agree with the General Counsel. The Respondent was not created directly by a State. Nor is it adminis- tered by individuals who are responsible to public offi- cials or to the general electorate. The Respondent was established as a private corporation under a charter bear- ing its own name. Neither the purposes nor the business affairs of the Respondent are governmental in nature. The Respondent operates as a separate entity and it con- trols its own operations, including its own employment and labor relations policies, through its board of direc- tors, its commissioner, and a staff of managers and em- ployees. Each member school may choose a member of the board of directors. But because only two of the nine- member schools are public institutions, their designated representatives on the board cannot control the oper- ations of the Respondent. Nor does the Respondent operate either as a joint em- ployer with its member schools or as a multiemployer bargaining association. The member schools do not select or contract with the officials whose representative status is at issue here. The Respondent contracts with, selects, assigns, and supervises them. The schools simply pay them a fee that has been determined by the Respondent. The schools are thus not employers of the referees, joint or otherwise. Because the member schools do not 1B Since the 1984-1985 season, the Respondent has also operated and supervised a women's baskeball officiating program 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ the referees, the Respondent does not act as a multiemployer association. The specific purpose of a multiemployer association is to permit member employ- ers to band together in order to deal with a union or unions that represent their employees on a single-em- ployer basis. This is obviously not the purpose behind the formation of the Respondent. Indeed, in forming the Respondent, the member schools obviously intended to create an entity that would run their sports programs. They presumably wanted to avoid employment decisions such as those which have spawned the labor dispute herein. It would be anomalous and, indeed, unfair to rule that the member schools could have the benefits of having formed a corporation to handle their sports pro- grams but escape the potential liabilities of their action. In these circumstances, I find that the Respondent is an employer within the meaning of Section 2(2) of the Act and is not a joint employer with, or a multiemployer association of, the member schools . See in addition to Southwest Texas Public Broadcasting and Truman Medical Center, supra, Cape Girardeau Care Center, 278 NLRB 1018 (1986). III. THE LEGAL STATUS OF THE ECBA OFFICIALS The key issue in this case is whether the ECBA offi- cials are independent contractors or employees. If they are independent contractors then the relationship be- tween ECBA and CBOA is not a bargaining, relationship within the meaning of the Act. Sections 8(a)(5) and 9(a) refer to bargaining on behalf of "employees" whose defi- nition, in Section 2(3), of the Act, specifically excludes in- dependent contractors. Thus, if the officials are inde- pendent contractors, the Respondent cannot succeed to a bargaining obligation protected by the Act. Indeed, if the officials are independent contractors, CBOA does not act on behalf of employees and is thus not a labor organiza- tion within the meaning of Section 2(5) of the Act.17 The applicable principles have been well 'and succinct- ly set forth in ARA Leisure Services v. NLRB, 782 F.2d 456, 459-460 (4th Cir. 1986), in which the court stated as follows: In excluding independent contractors from the coverage of the Act, Congress intended that common law agency principles would govern the determination of employee/independent contractor status. United Insurance, 390 U.S. at 256 .... Courts analyze this issue by applying the "right to control" test: "When the person for whom services are performed retains the right to control the manner and means by which those services are to be accomplished and particularly when that person provides supervision as to the details of the work, the workers are considered employees." Air Transit, Inc. v. NLRB, 679 F.2d 1095, 1098 (4th Cir. 1982). 39 Sec. 2(5) of the Act reads as follows. (5) The term "`labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work. See also, Yellow Taxi Co. v. NLRB, 721 F.2d 366, 374 (D.C. Cir. 1983); NLRB v. A.S. Abell Co., 327 F.2d 1, 4 (4th Cir. 1964); Restatement (Second) of Agency § 220 (1958). It is the right to control, rather that the actual exercise of control, that is significant. NLRB v. Associated Diamond Cabs, Inc., 702 F.2d 912, 920 (11th Cir. 1983). The test, however, is not narrowly focused on direct supervision, though of course such supervision is indicative' of control. In- stead, we must examine the relationship in its entire- ty, considering all the circumstances that suggest either employee or independent contractor status. See Associated Diamond Cabs, 702 F.2d at 919; Tri- State Transport, 649 F.2d at 995; Associated General Contractors of California, Inc. v. NLRB, 564 F.2d 271, 279 (9th Cir. 1977). In Standard Oil Co., 230 NLRB 967, 968 (1977), the Board described some of the important factors to be con- sidered as follows: Among factors considered significant at common law in connection with the "right to control" test in determining whether an employment relationship exists are (1) whether individuals perform functions that are an essential part of the Company's normal operation or operate an independent business; (2) whether they have a permanent working arrange- ment with the Company which will ordinarily con- tinue as long as performance is satisfactory; (3) whether they do business in the Company's name with assistance and guidance from the Company's personnel and ordinarily sell only the Company's products; (4) whether the agreement which contains the terms and conditions under which they operate is promulgated and changed unilaterally by the Company; (5) whether they account to the Compa- ny for the funds they collect under a regular report- ing procedure prescribed by the Company; (6) whether particular skills are required for the oper- ations subject to the contract; (7) whether they have a proprietary interest in the work in which they are engaged; and (8) whether they have the opportunity to make decisions which involve risks taken by the independent businessman which may result in profit or loss. See N.L.R.B. v. United In- surance Co., 390 U.S. 254, 259 (1968); N.L.R.B. v. Pepsi Cola Bottling Co. of Mansfiel4 Ohio, 455 F.2d 1134, 1141 (C.A. 6, 1972); Restatement (Second) Agency § 220(2) (1958). As in all litigated cases of this type, the various factors do not point "with unanimity in one direction or the other." ARA Leisure. Services, supra, quoting from Mer- chants Home Delivery Service v. NLRB, 580 F.2d 966, 973 (9th Cir. 1978). "[T]here is no short formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Insurance Co., 390 U.S. 254, 258 (1968). BIG EAST CONFERENCE 343 Applying the above principles to the'facts of this case, I find that the ECBA officials were independent contrac- tors and not employees during the 1983-1984 season. The ECBA utilizes skilled and experienced officials who are members of the CBOA. An applicant must pass floor, and written tests and be certified by a separate qualifying organization before being accepted for mem- bership. Other CBOA members must pass on his qualifi- cations as well. The very first provisions of the ECBA- CBOA general agreement make it clear that CBOA "will supply' officials" to ECBA and will proceed under its (the CBOA's) constitution "and, in cooperation with the ECBA, to train and maintain a staff of capable officials .... In this context, the ECBA-CBOA rating and evaluation system is best understood as a cooperative venture whose purpose is to continue and improve the skill levels of officials who must initially have basic skills and expertise before they are utilized by ECBA. Like- wise, the ECBA's observer system, bulletins, and annual clinic and tests are part of this cooperative venture be- cause the results of these endeavors are taken into ac- count in the annual evaluation process. In these circum- stances, the ECBA, unlike the usual employer, does not employ inexperienced individuals or unilaterally under- take a training program of its own. Compare United In- surance, supra, 390 U.S. at 259. (Insurance debit agents are employees, not independent contractors.) Also, unlike the insurance agents in United Insurance, supra, the officials seem to operate their own independ- ent businesses. Thus, most of the officials have other full- time jobs and many of them referee games for schools not affiliated with the ECBA. They are paid, on a per game basis and by the home team, a lump sum for fees, travel, and per diem. There are no deductions for income tax withholding, workmen's compensation, unemploy- ment insurance, social security taxes, or fringe benefits. The officials pay for their own uniforms and they pay their own expenses in connection with attendance at the annualclinics. The officials must purchase, their own medical insurance and they assume responsibility for injury of damages sustained in the course of their work. Actually, the officials pay for a liability insurance policy purchased through the CBOA. These are all indicia of independent contractor status. See American Guild of Musical Artists, 157 NLRB 735, 736 fn. 1 (1966). Significantly, in addition to paying dues to the CBOA, the officials must pay annual assessment fees to the ECBA for the privilege of receiving assignments from ECBA. Thus, at present, officials pay ECBA from $20 to $360 annually depending on the number and types of as- signments they-receive. It would be unusual for an em- ployer to require its employees to pay it an assessment based, on the number of hours worked. Accordingly, this feature of the ' relationship between the officials and ECBA highlights independent contractor status. The assignment procedure itself demonstrates inde- pendent contractor status. First, there is much discretion in the process. The ECBA assigners may select not only the' quality but the number of games an official receives consistent With that official's ranking. However, in the first instance, it' is the official who chooses which dates he will make himself available to the ECBA. Thus, the official is free to "close" any date he wishes for any reason other than to accept assignments from non-ECBA 4-year colleges. He can at all times refuse to accept ECBA assignments for personal or business reasons or to officiate junior college or high school games. And he can even close dates to accept non=ECBA 4 -year college games if he requests such accommodation before 30 June. However, between 30 June and 1 October, the ECBA has priority in making assignments on all dates that have not previously been ,closed. After 1 October the officials are again free to take assignments from any source. Indeed, when the official is sent his individual contract and assignment sheet in September, he can cross out games he does not want to officiate and those games are reassigned. Such reassignments are usually made after 1 October. Another official is not required'to take those reassignments if he has previously closed the applicable dates. The assignment procedure described above shows that, although there ,are some restrictions on closing dates, the officials have considerable freedom to close or open dates. The procedure results in officials working as few as 3 but as many as 55 games during a season . Thus, the official-who is paid on a per game basis-may increase his income by making himself available for as many dates as possible. His financial interest is also illustrated by the assessment he pays to ECBA which is based on the number of assignments he obtains . In these circum- stances, I find that the relationship is intermittent, and not permanent, and that the official holds in his own hands the ability to increase earnings. These features are indicative of an independent contractor's relationship with a principal. See Boston After Darr Inc., 210 NLRB 38 (1974); WFMF, 198 NLRB 923 (1972). The General Counsel contends that there is a perma- nent relationship-consistent with employee status-be-, cause most ECBA officials are retained year after year. This may be so, but, both in the general agreement and in practice, the ECBA has the right to, and actually does, drop a number of lower ranked officials each year based on the annual evaluations. And it may, of course, lighten the assignments of officials based on those evalua- tions. Both the evaluation process and the assignment process have been negotiated into a general , agreement by the officials and, the ECBA. Contrary to the General Counsel's contention, the gen- eral agreement illustrates that the officials are able to affect their working conditions much as independent contractors. They do so through their agent, the CBOA, which negotiates on their behalf. The CBOA-ECBA agreement does not appear to be , a traditional collective- bargaining agreement between an employer and its 'em- ployees. There is, for example, no recognition clause or any other specific reference to'°,employee status. The agreement contains many, provisions that demonstrate that'both parties have shared responsibilities and the offi- cials themselves must pay an annual assessment to the ECBA for the right to receive assignments. When the parties failed to reach a new general"agreement in 1984,- the CBOA sent letters to ECBA members in an effort to provide a complete officiating service to individual 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD schools and conferences for a fee. Indeed, CBOA pres- ently provides such a service for a number of schools. The current agreement not only recognizes CBOA's right to continue its present officiating service but also places restrictions on future undertakings of this kind. This evidence supports the inference that the CBOA is an agent of independent, contractors not of employees. The General Counsel also contends that the ECBA su- pervises and disciplines the officials as would an employ- er. It is true that the ECBA critiques officials' perform- ances during a game and distributes bulletins to inform officials what rules are to be emphasized and how to react, to certain situations. However, the bulletins them- selves are addressed not only to the referees, but also to the coaches and athletic directors of member schools. The officials themselves are skilled and qualified. They are expected, to know NCAA rules and interpretations and the CCA manual. The real test is what is done with the critiques. Although observers may, talk to officials about missed calls or mistakes, there is no evidence that they back up these conversations with authoritative action. It appears that the critiques are taken into ac- count only in the end-of-the season evaluations. There is, for' example, no evidence that ECBA has actually fired or disciplined an official in midseason or in midcontract as a result of its critiques. Uncontradicted testimony sug- gests that it did not. In the absence of any such evidence or at least the right to impose midseason or midcontract discipline, the alleged supervisory authority does not demonstrate an employer-employee relationship. I have been cited no evidence that would support the ECBA's right to discipline based on an official's per- formance. A provision in the individual contract form states that any assignment is subject to cancellation "in the sole judgment" of the commissioner of the ECBA. However, there is no record evidence explaining this provision and none relating it to job performance. To the extent that the provision permits unilateral changes in as- sigrunents, this provision seems to have been ameliorated by paragraph 12 of the general agreement that states that when an official "does not work an ECBA-assigned game due to a college postponement or changing the schedule date, the ECBA will make every effort to give the official a replacement game." The only example even remotely relevant to this issue does not involve discipline based on job performance but rather enforcement of the ECBA-CBOA agreement. Thus, there is testimony about the suspensions of two officials who apparently violated the CBOA-ECBA general agreement by trying to cancel ECBA games they had earlier agreed to officiate. ECBA did not unilaterally terminate the officials but asked CBOA to investigate the matter. After the investiga- tion-in which ECBA did not participate-the officials were apparently suspended from the CBOA. It is unclear on this record whether these were midseason suspen- sions. However, the point here is that the discipline-if this was an example of discipline-came from CBOA and was not the result of unilateral action by an employ- er. The general agreement also seems to restrict the as- signment cancellation provision in the individual contract by, providing for terminations as a result of the annual rating and evaluation system. Terminations are accom- plished at the end of the season when annual evaluations can result in clearing- the rolls of up to 15 percent of the lowest-rated officials. It is this process that takes into ac- count an official's job performance. Indeed, the failure to accept assignments in accordance with the general agree- ment is also taken into account at this time. According to the general agreement, termination can also occur if the official fails to pay his assessment to the ECBA, if he has not been certified medically fit to officiate by the CBOA, or if he is not in good standing in CBOA-presumably by not paying his dues or failing to attain varsity mem- bership in 6 years. Only two midseason terminations are specified in the general agreement: one, if the official has failed to obtain a medical certification, and two, if the of- ficial fails to pay ECBA his annual assessment. Both of these are compatible with independent contractor status and do not in any way approximate the absolute right of termination set forth in NLRB v. United Insurance Co., supra, 3,90 U.S. at 258, 259-260. The General Counsel's contention that the critique of officials demonstrates ECBA's "right of control" is not persuasive. In a number of cases, the Board has analyzed the jobs of skilled personnel-like those herein-and re- jected the notion that their supervision amounted to a control over the manner and means of their performance. Here, as there, the principal issues instructions that relate to the ends to be achieved by the agent rather than how the ends are to be achieved. See Young & Rubicam Inter- national Inc., 226 NLRB 1271, 1275-1277 (1976), and cases there cited. The ECBA desires a consistently called game in adherence to NCAA rules and interpretations as well as its own interpretations. It seeks to critique and encourage officials to this end. This does not establish employee status, however. As the Board stated in Young & Rubicam, supra, 226 NLRB at 1275: Perhaps the point is best conveyed by the following analogy drawn by the Administrative Law Judge in Associated Musicians: "When one engages a contrac- tor to build a house, the contractor does not become any less independent because the purchaser determines the kind of house, where it is to be placed, the kind of materials to be used, the times of construction, or even the times of day when build- ing shall take place ...." 206 NLRB at 589. Thus, the supervisory aspect of the relationship here is more like that of a principal dealing with an independent contractor. A principal can certainly monitor the per- formance of its independent contractors and, based on such monitoring, decide to give the contractors less or, indeed, no work in the future. The officials bring ac- knowledged skills to their assignments. In the absence of any evidence of midseason or on-the-spot discipline, it appears that the ECBA's supervision does not amount to the type of control over the means and manner of the of- ficial's work that an.employer would normally exercise. Rather such supervision appears to be addressed to the ends to be achieved by the officials. Also significant in my analysis is the explicit provision in the individual contracts that the officials are independ- BIG EAST CONFERENCE 345 ent contractors. Such a conclusory provision may not be determinative when it is written by the alleged principal who has considerable economic resources and the al- leged agent has none, thus requiring the latter to acqui- esce in a proffered individual contract in order to obtain, work. However, the circumstances of this case are differ- ent. The officials were represented by an entity, the CBOA, which actually negotiated a general agreement with ECBA covering many details of the relationship be- tween ECBA and the officials. Yet nothing in that gener- al agreement refutes or conflicts with the independent contractor language in the individual agreements. There is no evidence that either the CBOA or the officials ob- jected to or tried to alter the language in the individual agreements although, in 1984, the CBOA objected to the ECBA's effort to include an independent contractor's clause in the general agreement. In these circumstances, the individual agreements that state that the officials are independent contractors must be given some weight." 8 The General Counsel contends that her position is sup- ported by the Internal Revenue Service's Revenue Ruling 57-119, which states that college athletic associa- tion officials-whose duties are similar to those herein- are employees for the purpose of Federal tax withhold- ing. Although the revenue ruling is helpful to the Gener- al Counsel's position, I cannot agree that it compels the same result here. It is unclear from the recitation of the facts in the revenue ruling whether the relationship be- tween the officials and the association is sufficiently simi- lar to that herein to require the same result, in this case. There are several aspects of that relationship which appear to be different. In Revenue Ruling 57-119, the services of the officials could be terminated "at any time during the playing season," and the officials were re- quired to file reports after each game. Here there is no such evidence. Nor was there evidence in the revenue ruling concerning the extent to which those officials were required to make themselves available for assign- ments. Here, it is clear that officials have considerable authority to make themselves available for assignments or to withhold their availability. Finally, here, unlike in the revenue ruling, the officials must pay the ECBA an annual assessment for the privilege of receiving assign- ments. I have considered all the arguments of the General Counsel and' the Charging Party in this case. I acknowl- edge that some of the factors in the relationship between the officials and the ECBA, particularly the examples of supervision in the observer program and in the use of periodic bulletins, point to employee status. But I do not believe that those factors outweigh the factors that I 19 There is a suggestion in the testimony of CBOA Executive Secre- tary Hess that neither he nor any other official was aware of the signifi- cance of the independent contractor language in the individual agree- ments. I cannot accept this testimony. The officials-including CBOA of- ficers-who signed the individual agreements must be presumed to know what they are signing in the absence of fraud or misrepresentation, nei- thei of which is present in this case. have discussed that point to independent contractor status. The very nature of the work makes it obvious that officials need not make a large capital investment, have little risk of loss, and are an essential part of the ECBA's normal operation. But it is also true that the of- ficials invest time and money in advancing their careers, sell their skill and expertise, and have some control over their own earnings. This case is not unlike most in this area that present very close mixed questions of law and fact. Different adjudicators can look at the same facts and come to different results . Although the decision is a close one and not entirely free from doubt, I conclude that the ECBA officials are not employees within the meaning of the Act. My ruling herein is not meant to affect the CBOA- ECBA agreement and the relationship of the parties now in effect. As I have indicated, independent contractors may choose to deal with their principals through an agent. This is what the ECBA officials have done in the past and this is what they may continue to do in the future. Contractual arrangements of this sort undoubted- ly benefit both parties. They promote stability and good morale and they insure a ready supply of qualified per- sonnel. My ruling is simply that, despite its value, this re- lationship is not covered under the National Labor Rela- tions Act. I also want to emphasize that I do not rule on the status of the Respondent's officials. The relationship be- tween the Respondent and its officials is different than that between ECBA and its officials. Whether it is so dif- ferent as to make the Respondent's officials employees rather than independent contractors depends on whether their relationship fits within the analytical framework I have articulated. In any event, this is a question I need not answer. What my ruling means is this: The CBOA is not a labor organization because, in its dealings with ECBA, and indeed with several non-ECBA schools, it does not represent employees within the meaning of the Act. And, because the ECBA officials are not employees, their relationship-through the CBOA-with ECBA is not a bargaining relationship between an employer and its employees. There is thus no bargaining obligation on the part of ECBA and, in turn, none to which the Re- spondent could have succeeded . I of course do not reach any of the 'other successorship issues that may have been presented in this case. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. The ECBA officials represented by CBOA are not employees within the meaning of Section 2(3) of the Act. 3. The CBOA is not a labor organization within the meaning of Section 2(5) of the Act. 4. The Respondent has not violated Section 8(a)(5) and (1) of the Act. 346 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 ORDER The complaint is dismissed in its entirety. 19 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.' 102.48 of the Rules, be adopted by the Board and all' objections to them shall be deemed waived for all pur- poses.