Ohio Public Interest Campaign

OHIO PUBLIC INTEREST CAMPAIGN 281 Ohio Public Interest Campaign and Mark Kaiser. Case 8-CA-17073 18 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 31 May 1985 Administrative Law Judge Robert G. Romano issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in response to the General Counsel's exceptions. 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 as modified and to adopt the recom- mended Order. We agree with the judge that the Board should decline to assert jurisdiction in this particular pro- ceeding. In dismissing the complaint, however, we do not adopt his decision to the extent that it can be read to indicate that the nature of the Respond- ent's activity, i.e„ the fact that it is a nonprofit cor- poration engaged in consumer lobbying, is a basis for declining to assert jurisdiction. i The Board has taken the position that it "will no longer distinguish between profit and nonprofit organizations for ju- risdictional purposes," Lighthouse for the Blind of Houston, 244 NLRB 1144, 1145 (1979), and that "the only basis for declining jurisdiction over a charitable organization is a finding that its activities do not have a sufficient impact on interstate com- merce to warrant the exercise of the Board's juris- diction." St. Aloysius Home, 224 NLRB 1344, 1345 (1976). See also Long Stretch Youth Home, 280 NLRB 678 (1986). Although the Respondent is not a "charitable" organization, it is a nonprofit organi- zation, and the same standard is applicable to it. Applying that standard, we are satisfied that on the record the operations of the Respondent have not been shown to have such an impact on com- merce as to warrant our assertion of jurisdiction in this particular case. In this regard, we emphasize that the nature of the Respondent's operations and its impact appear to be almost, if not exclusively, limited to matters concerning issues of public con- cern affecting Ohio residents and without a general impact on interstate commerce. Accordingly, and 1 Chairman Dotson would decline to exercise jurisdiction over non- profit, charitable institutions except when a particular class of these insti- tutions has a substantial, demonstrated impact on interstate commerce. See his dissenting opinions in Salvation Army of Massachusetts, 271 NLRB 195 (1984), and Alan Short Center, 267 NLRB 886 (1983). He finds the same standard applicable here and agrees that the Board should not assert jurisdiction See also the dissenting opinion in Imperial House Condomini- um, 279 NLRB 1225 (1986). because we have not previously asserted jurisdic- tion over this class of employers, 2 we decline to assert jurisdiction herein. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 2 Member Johansen notes that the Board asserted jurisdiction in Ohio State Legal Services Assn, 239 NLRB 594 (1978), over an entity that, inter aim, engaged in lobbying Mary G Balazs, Esq., for the General Counsel. Frank P. Giaimo, Esq. (Gaines & Stern), of Cleveland, Ohio, for the Respondent Employer. DECISION STATEMENT OF THE CASE ROBERT G. ROMANO, Administrative Law Judge. This matter was heard before me on 16 and 17 August 1984.1 The charge in Case 8-CA-17073 was filed on 4 October 1983 against Ohio Public Interest Campaign (OPIC, or Respondent Employer) by Mark Kaiser, an individual charging party (Kaiser). Complaint thereon issued on 30 November 1983. The complaint alleges that by certain of its supervisors and agents Respondent Employer has un- lawfully interrogated employees, on three occasions in September 1983, in violation of Section 8(a)(1) of the Act; and on two occasions in late September 1983 issued discriminatory warnings to Kaiser, and on 4 October 1983 discriminatorily discharged Kaiser, all in violation of Section 8(a)(3) and (1) of the Act. In addition to issues presented by Employer's denial of commission of any of the above-alleged unfair labor practices, Employer's con- test of Board jurisdiction over it as an Employer en- gaged in, or affecting commerce is a major and threshold issue in this case. On the entire record, from my observation of the de- meanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent about 9 October, I make the following FINDINGS OF FACT I. JURISDICTION A. Background 1. Complaint and answer The complaint alleges and Respondent by answer filed 9 December 1983, as amended at hearing, admits that OPIC is a nonprofit Ohio corporation with an office and place of business in Cleveland, Ohio; that OPIC is en- gaged in providing consumer lobby services to Ohio consumers; that OPIC annually, in the course and con- duct of its business operations had derived gross reve- nues in excess of $1 million; and that OPIC has received 1 All dates are in 1984 unless otherwise stated 284 NLRB No. 31 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD goods and services valued in excess of $36,000 directly from points located outside the State of Ohio. The com- plaint further alleges, and Employer nonetheless contin- ues to deny that OPIC is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Facts a. Origin and development Ira Arlook is executive director of OPIC, and he has held that position since Respondent's incorporation in July 1976. As executive director, Arlook has day-to-day responsibility for the entire operation. Final authority in OPIC, however, resides in its board of directors of which Arlook is a member and chairperson. Arlook has generally described OPIC, a nonprofit corporation, as a citizen's political organization, engaging in a range of ac- tivities that focus on economic, public health, and envi- ronmental issues, which are important to the organiza- tion. However an underlying basic purpose of OPIC is also to make it possible, broadly for everyone, but par- ticularly for low- and moderate-income individuals to participate in economic and political decisions. Arlook has explained the origin of OPIC. In late spring and early summer 1975, Arlook began a series of communications with organizational leaders of unions and with senior citizens, neighborhood, environmental, and minority groups about a perceived need for a coali- tion organization on such issues as corporate responsibil- ities with regard to plant closings; fairness in tax struc- ture and systems; a range of energy issues (including de- control of natural gas, utility regulation, and the impact of energy and utility prices on utilities); and the effect of toxic substances and hazardous wastes on the lives of in- dividuals in their jobs and communities. An initial office was opened in Cleveland, Ohio, in early 1976, with three to four area offices being opened in the first year. Ac- cording to Arlook, OPIC presently conducts its oper- ations in all of the major metropolitan areas, and in some rural areas, in the State of Ohio. The record reveals OPIC currently has such offices in Cleveland, and area offices in Akrdn-Canton, Warren-Youngstown, Dayton, Cincinnati, Toledo, Columbus; and an Appalachian office at Athens, Ohio. OPIC's 1976 charter and its amendments in 1982 and 1984 have been placed in evidence by Respondent. Over the years OPIC's operations have grown from the point of being a small organization, able to address but one issue, to an ability to handle two or three issues in the State, both well, and at the same time. OPIC's twice amended charter supports a fmding that OPIC passed from an informational and educational organization of es- sentially public education generally, and initially specifi- cally addressing plant closing and industrial job loss issues—but with a then disavowal of any intended corpo- rate participation or intervention in any political cam- paign on behalf of, or in opposition to, any candidate for public office—to, in 1982, charter addressment of that subject and other specific issues of tax reform, energy, and toxic substance issues, as well as then becoming gen- erally involved in related electoral work, research, and policy information, and grass roots lobbying. The most recent 1984 charter amendments, as summarized by Arlook, were designed so that OPIC would not be limit- ed in any way concerning the scope of activities it could engage in, including more recently, inter alia, a range of farm foreclosure issues that Arlook described as having come up as a result of recent tightening of farm credit systems. During the initial period of 1976 through 1980-1981, individuals joined as a member of other organizations through representatives of those organizations but with OPIC encouraging individual membership in OPIC. As the organization developed, and particularly as OPIC's canvass operation began to grow, at one point in 1981 growing very rapidly, OPIC's expanding canvass staff came in contact more and more with unaffiliated individ- uals, to the point where OPIC's own individual member- ship has now grown very substantial directly through the canvass operations. b. OPIC's declared purposes, directorship, and membership as evidenced by current charter and bylaws OPIC's articles of incorporation were originally de- clared by Ira Arlook (and two other incorporators) on 19 July 1976, and certified by the State of Ohio on 30 July 1976. They were certified amended on 12 October 1982, and as further and last certified amended on 4 May 1984, insofar as pertinent, currently provide: THIRD: The purposes for which the corporation is formed are to promote social welfare by the fol- lowing means: A. Promoting cooperation and understanding be- tween and among all citizens of Ohio, with special emphasis on low and moderate income people, by addressing issues of common concern in a collec- tive, democratic, and peaceful manner; B. Exploring ways and means, voluntary and governmental, for solving problems and meeting human needs, C. Promoting philanthropy through i. assisting citizens in resisting and overcoming community deterioration, ii. increasing community cohesion, relieving the poor, distressed, and indigent, iv. educating citizens and communities to indi- vidual rights and responsibilities, v. fighting of racial, religious, and sexual dis- crimination in any form. FOURTH: The corporation shall have one or more classes of members, with such voting rights as may be provided in the regulations, who shall select the members of the Board of Trustees. OPIC's bylaws (encompassing aforementioned regula- tions) as last amended on 19 April 1984 insofar as addi- tionally pertinent on corporate purposes provides, in arti- cle I, OHIO PUBLIC INTEREST CAMPAIGN 283 Section 1.01 . . . . As such, no part of its net earning shall inure to the benefit of officers, directors or other private persons, except that it is authorized and empowered to pay reasonable compensation for services ren- dered and otherwise to make payments and distribu- tions in furtherance of its informational and educa- tion purposes; and (c) [sic] it shall take only actions permitted an organization exempt from taxation under section 501(c)(4) of the Internal Revenue Code and pertinent Income Tax Regulations, as amended and as they may be amended. The bylaws presently make provision for three classes of members, viz, organizational, regular, and major sup- porting members. Any organization supporting OPIC's purposes and goals qualifies organizational membership on election by board of directors and payment of current dues. Organizational members elect 20 percent of the board of directors; vote on such matters as the board of directors provide; and are to advise the board of direc- tors on OPIC's programs and policies. Individuals who support OPIC also qualify for membership on signing a statement to that effect and paying current dues. They, as regular members, elect 20 percent of the board of di- rectors and have similar voting and advice rights. Major supporting members are regular members and representa- tives of organizational members who, on a continuing basis, contribute extraordinary services to OPIC and who are certified (and decertified) by a vote of two- thirds of the board of directors. Included are those giving OPIC extraordinary fmancial assistance, which is defmed as a contribution of $500 in cash, securities, goods, or services; or giving OPIC qualifying "Other ex- traordinary services," the latter essentially meaning con- tribution of time and talent, in case of nonstaff members substantially beyond what is normally expected of regu- lar members. In case of OPIC employees and consultants the same means essentially contribution of extraordinary expertise, effort, or at compensation substantially below market value. Major supporting members elect 60 per- cent of the board of directors (no more than half of whom shall be employees of, or otherwise compensated for services by OPIC); and such members have the same voting and advice rights. Voting of members on direc- tors is within their separate classes. Otherwise, estab- lished clues are normally $100 for organizational mem- bers and $5 for regular members. The bylaws provide for a minimum of 10 directors and a maximum of 30. Presently established is a board of di- rectors consisting of 15 directors. Directors serve 1-year terms, or until a successor is elected. Nominations are by a director, or by a minimum of 20 members. Campaign or program issues are determined by the board of direc- tors. OPIC's officers consist of a president, who is also called the executive director, a secretary, and a treasurer. The officers are appointed by the board of directors. Bylaw provision would permit additional officers being created and designated by the board of directors. c. OPIC's operational management and employment structures In addition to Arlook serving as the executive director (president) and chairperson, OPIC's management staff is composed of a financial and administrative director, an organization director (who also functions as energy pro- gram director), and a legislative director (who also func- tions as toxic action project director on the organizing side). There are two appointed regional staff directors, neither of whom is on the board of directors. More re- cently established is a polling research arm that provides technical services related to electoral activities though it is unclear if there is an established director of that program/function. There is a (noncanvass) fundraising operation, which is essentially handled by Arlook, who is responsible for raising funds through foundation grants. There are organizing and canvass staff directors at the local level. Beneath the latter are canvass field managers (who are stipulated supervisors), and finally the canvassers. The finance director has the day-to-day responsibility for paying bills and managing cashflow; and he has a staff of two in addition to himself. Arlook works closely with the finance director. Arlook thus monitors on a reg- ular basis all expenditures, and monitors income on a weekly basis. Arlook also utilizes charts in his office for ongoing correlation of actual to anticipated budget items. Program directors perform background research, produce position papers and fact sheets and they fre- quently brief staff on the campaign issues. There is an or- ganizing staff in each of the offices. The local organizing staff directors are principally responsible for working with a local steering committee made up of individuals and affiliated organization members who meet and dis- cuss matters of (local) direction on campaign issues as determined by the board of directors, and developed by given program director. It is the local organizing staff's job to mform and mobilize others from local neighbor- hoods, organizations, etc., to build local coalitions in sup- port of particular issues, and to also generate grass root lobbying effort around a demand for enforcement of local, state, and national legislation. It is the canvassers' job to educate and marshall public support by visitation at Ohio citizens' homes; and to raise funds to maintain and expand OPIC's effort by solicitation of contributions from Ohio citizens being visited. The organizing staff will speak on determined and re- searched subject of interest issues to all local groups, in- cluding labor unions in an area. Organizers will also re- spond to (toxic dump) site reports, plant explosion, etc. They will investigate the facts, prepare testimony, edu- cate the public, and attempt to get immediate attention to a problem. The organizing staff will also act on the above matters to stimulate grass root support for pres- sure on Congress to Support an issue in which OPIC is interested, or to provide evidence of constituency sup- port to congressional members who have already de- clared positions in support of OPIC interest issues. The organizing staff are paid in the salary range of $12,000 to $17,000, based on number of dependents and years of service, but salary is not keyed to relative re- 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sponsibility. By and large the organizers have substantial experience in the field of work being done. Arlook has testified, without contradiction, that with rare exception the organizing staff have BAs or advanced degrees; they all could be making two to three times more than what they are; and they are not doing it for the money Some canvassers on completion of their college educational courses will move on to become organizing staff. Operationally, canvassers are essentially engaged in dual purposes of furthering OPIC's public outreach and fundraising. Thus, on the one hand their purpose is to make the public aware of what OPIC believes to be an issue; to help the public become aware of the relevance of certain legislation to that issue; and to encourage col- lective citizen action on the issue and the legislation. The canvassers knock on doors, provide a support and educa- tional oral statement on the OPIC issue(s) (referred to colloqually as the "Rap"); may, and frequently do, pro- vide and distribute certain literature on OPIC and issue(s), and broaden the educational program reach po- litically beyond television news and newspaper reports. Canvassers, in the latter regard, thus solicit involvement of citizens at all levels, from encouraging people as indi- viduals and in concert with OPIC, to sign a petition, to write letters and cards, and to make other statements in support of OPIC's position on an issue; to make phone calls directly to their representatives or to man a phone bank; to come to meetings, to organize public activities, or to attend a meeting of a delegation from organizations of citizens who will speak to legal representatives and/or at a related press conference (such as may be called when amassed petition signatures in support of a particu- lar position is to be presented to representation with media attention), with purpose to persuade those repre- sentatives that may be wavering, to hold to OPIC's view, by demonstration that substantial numbers share OPIC's view; or to meet with legislators of previously expressed different views, to present OPIC's position and argument in support of OPIC's belief of being right on the merit of an issue, and again show the position being espoused reflects the view of a majority of the constitu- ency of the representative(s). Canvassers may on occa- sion also serve as catalysts for other organizational ef- forts, e.g., in obtaining through accidental door conver- sation with local TV programmer, an opportunity for OPIC to make TV presentments of its purposes, oper- ations, and activities. Canvassers have to know the issues and be articulate. They are asked to read a great deal of written material, much of which they are tested in writing; and they engage regularly in role plays, in order to make their communication skill the more effective with all types of citizenry that may be encountered at the door. The can- vassers also raise funds through specific requests for con- tributions at the doors of those individuals visited. Arlook has testified the canvassers' fundraising function is crucial to OPIC's continued outreach to the public, and the one is impossible without the other. Canvasser attrition, the canvassers' part in subscriptions for OPIC newspapers, and the matter of canvassers crosstraining, inter alia, in other States, are more conveniently dis- cussed infra. d. Assets, income, and expenses OPIC's fiscal year runs from 1 July of given year to 30 June of following year. OPIC's 1983 fiscal year, thus ending 30 June 1984, was not available at time of hear- ing, as not then complete, being in final audit process. OPIC has introduced in evidence its 1982 fiscal year report ending 30 June 1983, it notably being OPIC's last annual report prior to filing of the charge. Arlook has also testified on certain related subjects in the 1983 fiscal year report, and on the 1984 projected budget. (1) Assets Of the total assets of $102,232 depicted by balance sheet of 30 June 1983, the major components are cash on hand ($31,492) and automotive equipment ($40,693). OPIC's current assets as generally described by Arlook appear as modest, viz, some business equipment, some computer systems (for keeping track of membership, ac- countings, and for financial planning), some copying ma- chines, about seven to nine suburban vans (essentially used in daily field canvas trips), some less than first-class desks, chairs, and tables, and a significant number of posters. OPIC has also prepared and published a lot of (researched) reports. Arlook has testified that, although OPIC's staff prepares content of the publications, OPIC does not do its own printing, but rather has heretofore used two outside printing companies in the printing of its publications, but one considerably more so than the other. Both printing companies are located in Ohio, and no other evidence was offered concerning their commer- cial operations. (2) The nature of OPIC publications OPIC has regularly published a Public Interest Report, a folded single sheet (thus) four-page leaflet, reporting on varied matters such as gas hikes, survey of candidates on an issue, plant closings, natural gas decontrol, conserva- tion of utility rates, OPIC's position on construction work in progress (viz, that the same should not be part of ratepayer's electric bill), toxic substances, and tax reform. OPIC has also published a similar (ordinance and campaign) Right to Know leaflet, addressed however sin- gularly to its toxic substances overall program, and spe- cifically utilized in support of an ordinance for Cincin- nati, whereby workers and residents in that community would be told what toxic substances they were being ex- posed to on the job, and in their community; and with identification of, and urging public support of a particu- lar candidate who had earlier supported, and Advanced OPIC's position by introducing such a toxic substance la- beling bill. Arlook has testified that the candidate, and incumbent, had introduced the bill in support of OPIC's position, and OPIC earlier realized that unless that person ran on the issue, and was reelected, the chances of the bill being heard, much less voted on, was slim. OPIC devoted a substantial effort in support of a toxic substance labeling law for Cincinnati and the candidate. Both were ,successful. Thus, the bill passed in Cincinnati; and at the time of hearing OPIC was supporting' a similar bill that had been introduced in Akron. Arlook has testi- OHIO PUBLIC INTEREST CAMPAIGN 285 fled that (to date) it has not been a case of an individual contacting OPIC for support, but rather of OPIC's deci- sion to support a candidate, who was supporting OPIC's positions on issues. However, OPIC's more recent devel- opment of related charges to be made to individuals for OPIC's (service) actions are discussed infra in connection with income and expenses. In above Right to Know leaf- let OPIC identified itself as "a state-wide non-profit, citi- zen research and action organization working to protect the health and economic security of Ohio consumers." A major program may have its own literature, its own organizers, and its own canvass. Thus, OPIC has also published a four-page "TOXIC WATCH" newsletter, or newspaper informing the public on varied related matters, such as: informing the public that a second city, one nearby Cincinnati, had passed a "Right to Know toxic chemical labeling law on May 8, 1984"; providing a leg- islative update on a Toxic Waste bill; presentment of a request for grass-roots support in a related letter writing campaign to state senators and representatives; informa- tion on "Environmental Hotlines"; and an update report on congressional action and the "Superfund." OPIC has also published a four-page "Citizen Action" newspaper for general public education in other matters, e.g., on energy and jobs, covering. National Ohio public officials' support; natural gas positions and current activi- ties thereon, including identification of Ohio congression- al supporters, and nonsupporters; information on voter registration; a report on oil profits; and prospective ef- fects on jobs, if without certain job content legislation. These newspaper issues were initially published bimonth- ly, but new issues are now being published quarterly. The above publications are variously used: being mailed to subscribers, discussed infra; an individual issue handed out by canvassers to people who give money when approached at their home door; used by organizing staff in their local meetings; and used as part of the pro- gram of broad and ongoing briefing of OPIC's organiz- ing and canvass staff on the various campaign issues. (3) Income and expenses The fiscal 1982 report, in these pertinent respects, pro- vides: Revenue and Expenses Schedules Year Ended June 30, 1983 Amount Per- cent Contributions-General Canvass Schedule 1 Cleveland $359,264 25.88 Cincinnati 239,278 17.25 Columbus 250,793 18.07 Toledo 138,266 9.97 Akron 208,024 15.00 Canvass-staff 2,859 .21 Total Contributions-General Can- vass $1,198,484 86.38 Contributions-Toxic Action Project Can- vass Schedule 2 Cleveland 7,134 .51 Cincinnati 17,250 1.25 Revenue and Expenses Schedules Year Ended June 30, 1983- Continued Amount cent Columbus 12,365 12,365 .89 Akron 8,378 .60 Total Contributions-Toxic Action Project Canvass $45,127 3.25 Grants Schedule 3 Industrial States Policy Center 74,518 5.37 Citizen Education Fund 35,000 2.53 Total Grants 109,518 7.90 STATEMENT OF REVENUE AND EXPENSES AND CHANGES IN FUND BALANCE YEAR ENDED JUNE 30, 1983 It is apparent therefrom that in fiscal year ending 30 June 1983, of the total support and revenue generated, $1,387,359, OPIC's general canvass produced $1,198,384; and another $45,127 was produced through a specific and separate toxic action project canvass, the latter how- ever, only recently having begun in May 1983. Thus, both canvasses uncontestedly generated almost 90 per- Amount Per- cent Support and Revenue Contnbutions: General Canvass (Schedule 1) $1,198,484 86.38 Toxic Action Project Canvass (Schedule 2) 45,127 3.25 Individuals. 11,533 .83 Organizations 17,284 1.25 Fees 2,111 .15 Grants (Schedule 3) 109,518 7.90 Sales 382 .03 Miscellaneous 2920 .21 Total Support and Revenue 1,387,359 100.00 Expenses Program Services Charitable Non-Lobbying (Schedule 4). 349,668 25.20 Electoral (Schedule 5) 25,401 1.83 Legislative (Schedule 6) _ 609,937 43.96 Total Program Services 985,006 70.99 Supporting Services Management and general (Schedule 7) 105,033 7.57 Fundraising (Schedule 8) -379,296 27.34 Total Supporting Services 484,323 34.91 Total Expenses 1,469,329 105.90 (Deficit) Excess of Revenue Over Ex- penses (81,970) (5.90) Fund (Deficit) at Beginning of Year (139,301) Prior Period Adjustment (6,623) Fund (Deficit) at End of Year (227,894) 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cent of OPIC's total support and revenue for the 1982 fiscal year ending 30 June 1983. Arlook has testified cre- dibly that canvass contributions are exclusively and liter- ally contributions received by canvassers at the doors of homes. Grants amounted to $109,518 or .9 percent, and the next major revenue source, viz, contributions from orga- nizations (chiefly unions) was $17,284, amounting to 1.5 percent of overall support and revenue. Arlook has testi- fied relatedly on background of early operating revenue, that when the OPIC organization started, it had relied more heavily on his efforts in obtaining fund grants, and on the contributions of organizations, as the then main sources for OPIC operating revenue. Arlook further tes- tified that fund grants and organization contributions in amount have remained about the same even to date. Ac- cording to Arlook, however, the canvass contributions took off in about 1981, when OPIC realized that if a can- vasser raised a quota, the people made more money, and more canvassers could afford to work for the organiza- tion. In material times canvassers received a salary of $160, for meeting $400 quota (and 50 percent of that contributed over $405). Base presently is $180 for meet- ing $459 quota. In more recent years the general canvass had focused essentially on energy issues. However, in May 1983, a new and separate canvass operation was started, in sever- al cities in Ohio, on a special toxic action project. It thus may be secondly noted that Arlook's supplementary tes- timony is that since the above 1982 fiscal year report, the toxic action project canvass has itself grown substantial- ly, to point of Arlook anticipating it would soon balance out at the general canvass level (of income production). In calendar year 1983 OPIC received contributions from 300,000 Ohio households; and Arlook anticipated that in calendar year 1984, contributions would be received from closer to 400,000 Ohio households. (OPIC more often receives petition signatures and forms of support other than contributions at the doors.) The anticipated (prospective) budget for OPIC's fiscal year 1984 is itself just over $2 million. Although there may be some element for confusion in the record about grants being presently received by OPIC from certain foundations, the 1982 fiscal report is clear that all the grant funds were then received from In- dustrial States Policy Center ($74,518), albeit a part thereof originated from a Catholic charity, and the Citi- zens Education Fund ($35,000), as noted (then) 7.9 per- cent of total support and income. There is no evidence of OPIC receiving grants from any Federal, state, or local governmental unit source. Arlook acknowledged on cross-examination that he is also a director of a federation of citizen organizations (like OPIC) called Citizen Action. There are 13 official (unnamed) member organizations of Citizen Action, with (apparently) six organizing projects, along with Citizen Action's informal relationships with a few other state- wide organizations. The Industrial States Policy Center (ISPC) at one point in the record is identified by Arlook as being an organization related to OPIC, but one sepa- rately incorporated to fall within the Internal Revenue Service (IRS) code 501(c)(3), nonprofit "public char- ities," contributions to which are tax deductible by a contributor. According to Arlook ISPC is a research publication and public educational organization, which exclusively does research on public-educational publica- tions, though it also may make grants to other organiza- tions advancing its own purposes. However, ISPC re- stricts use of its grant money to performance of no elec- toral work, no partisan work, and no substantial amount of lobbying. OPIC, accordingly in turn, restricts the use of funds granted to it by ISPC, to ISPC purposes, exclu- sively; and OPIC makes an appropriate accounting of those funds uses. In contrast, however, OPIC has qualified as a nonprof- it 501(c)(4) tax exempt "action" organization, contribu- tions to which are not tax deductible by the contributor, but which in turn then leaves OPIC free to both lobby and to engage in electoral activity, such as is consistent with state and Federal law. Arlook has otherwise testi- fied that there is no corporate overlap between OPIC and ISPC, though immediately hedging to extent of testi- fying more cautiously that there may be in a technical sense, which he does not understand. ISPC operates with its own staff in most of the industrial States, though its primary emphasis to date has been in Ohio. ISPC has separate offices in Cleveland, but shares a suite of offices there with OPIC. Arlook has also ac- knowledged that if a prospective door contributor on an OPIC canvass wanted a tax deduction for a substantial contribution (e.g., for a $25 contribution or more), a con- tribution to ISPC would be suggested. That ISPC contri- bution would be forwarded to ISPC. However, if the contributor wanted lobbying, it would not be done. Al- though Arlook did not know the accounting involved, he also doubted such ISPC contributions were separated from general funds by ISPC and directed back to OPIC as such. The IRS by letter of "June 27, 1977" initially determined OPIC qualified as an exempt social welfare organization under § 501(c)(4); and by (last) letter in evi- dence dated "June 27, 1983," for period ending "6-30- 82," the IRS has continued recognition of OPIC as such a tax exempt organization. In that regard OPIC separately accounts in detail for the expenditure of its own income, as in 1982 fiscal year in categories of: (a) Charitable—Non-Lobbying ($349,668-25.2 percent); (b) Electoral Activity ($25,401— 1.83 percent); but in the main lobbying, Legislative ($609,937-43.96 percent). The remaining expenses are in supporting services (essentially management, general, and fundraising). The money expended on charitable—non- lobbying includes organizational work (but no lobbying), and OPIC's research and public educational outreach. Arlook has otherwise testified that OPIC tries to raise its money in a manner to have maximum amount available to OPIC to be spent in legislative (lobbying) as a great deal of OPIC's work is devoted to working with city councils, legislatives, Congress, Ohio representatives; and all pieces of legislature (on OPIC issues) are important. Lobbying for OPIC purposes, however (at least in the main), is not in the traditional sense of working through registered lobbyists, but rather is essentially grass-roots lobbying. Thus, canvassers and organizing staff most fre- OHIO PUBLIC INTEREST CAMPAIGN 287 quently are out in the local community, urging action in support of, or in opposition to, a particular piece of legis- lation. Issues, however, may take varying amounts of OPIC's time and resources. Arlook gave as an example of a statewide issue, that took OPIC a couple of years of intensive lobbying all over the State on the issue of utili- ties not charging ratepayers on portion of incompleted plant prior to the plant being on line delivery. OPIC's approach on lobbying is having people back home talk to their legislators on an issue; and both organizing staff and canvassers employ a number of techniques to do that, as earlier noted. Arlook gave as another example OPIC's interest in aiding those of low and moderate income (and others) to weatherize their home, with a range of programs raised for low interest, extended pay loans to those with low and moderate income, and to effect (after work done) combined bills (for usage and weatherizing) being on in- stallment basis lower than prior heating bill. In this in- stance OPIC was successful in obtaining (only) a pilot project in Cleveland, though with governor adoption and support; and OPIC views its task is to now market that approach elsewhere. Grass-roots lobbying may be directed at the Ohio dele- gations and representatives to Congress. OPIC was re- cently active in a national issue of reauthorization and expansion of "super fund" cleanup on toxic waste sites. In the latter regard OPIC is involved in coalition with organizations of similar purpose on a national level, e.g., the National Campaign Against Toxic Hazards, and simi- larly on other issues, with the First Citizens Labor Energy Coalition. The only prior energy issue in which OPIC was heretofore active on the national level was on gas decontrol some 2-3 years earlier, though Arlook en- visioned similar support activity in an anticipated floor fight on a (prospective) national consumer relief act. According to Arlook, income from fees ($2111 in fiscal year 1982) are rare and small, and are received for such matters as economic, or environmental research, or for technical electoral assistance, targeting or polling; but the same are performed only if consistent with OPIC's program and stance on an issue, and for candidates that OPIC actively supports because of the candidate's stance on an issue determined important to OPIC. In regard to the above, Arlook has testified that at first the charge-back fee did not reflect the real costs, as OPIC had essentially charged only for direct out-of- pocket costs (as for printing for publications used), but did not at first charge for staff time or overhead. OPIC (eventually) found it had to charge to cover staff time and overhead. However, OPIC would provide the serv- ice in the first instance only when it concluded its goals were being served, and its program advanced. ArIook testified that OPIC was currently performing an econom- ic research project test on certain cost claims in the res- taurant industry for which it was to be paid by the UAW, which was not typical, but served OPIC's goals, and was approved. According to Arlook, OPIC has per- formed work on such projects, from time to time, in those circumstances. Other individuals/groups seeking its service in the pasts when that was not determined the case, have been regularly refused. The General Counsel has offered no evidence contrary to Arlook's assertions in this area. Arlook has testified that on occasion OPIC has put a lot of people on leave to work in a campaign that the organization supported. In the toxic substance labeling law, earlier noted, in which OPIC devoted a substantial effort, OPIC charged for some of its costs. OPIC has also heretofore managed some campaigns, and has charged for staff time; has performed polls, and charged for the service; but, according to Arlook's uncontested testimony, "always only for people we support independ- ently, and not with prior purpose to raise money." How- ever, Arlook has also testified that more recently where a certain service (targeting for two Dayton candidates) was program related, and thus its income would be exempt, OPIC for the first time did charge an amount for its service that was less than going rate, but more than its real costs, and the excess charge over expense and overhead went to OPIC's general operation funds. The record does not otherwise reveal the amount of income generated over expenses, or the frequency with which it is anticipated this will occur, though there was reference to a policy thereon. OPIC, in fiscal year 1982, otherwise reflects sales income of $382. Arlook explains that OPIC has prepared and published a lot of reports, containing their research and findings. When other than a single copy of a report is requested (e.g., bulk copy) a charge may be made, but rarely is. If it is done, it is reflected in sales. Generally speaking when that charge was previously made it was again made on basis of out-of-pocket costs, e.g., printing costs. Miscellaneous income ($2920) was at first generat- ed from rummage sales. More recently, and more effec- tively, miscellaneous income is generated by celebrity auctions. Arlook did not believe there was any other source of revenue. It would appear that annual individ- ual membership primarily arose associatively with can- vass contributions. As may be noted at the end of fiscal year 1982, OPIC had a total deficit of $227,894 up from prior year deficit of $139,301, or an increase in deficit of $81,970 for the 1982 fiscal year ending 30 June 1983. Arlook has ac- knowledged OPIC received criticism over its deficit, though it has been readily able to convert short-term in- debtedness to long-term indebtedness, as, according to Arlook, OPIC pays its bills, and has a very good credit rating. Arlook, however, acknowledged OPIC has had to cut its costs and increase revenues. The record does not reflect OPIC's current deficit status, if any. 3. The subscriptions Subscriptions to the Citizens Action newspaper (in general canvass) and to the Toxic Watch newspaper (in toxic action canvass) are given out by OPIC to those in- dividuals who give $15 (or more) in contributions at the door. (Some of the organizations who support OPIC also take subscriptions, but canvass contributors are the main subscription source.) Individuals who give less are given a receipt, though Arlook testified a copY of current issue is given at the door to anyone contributing any amount; and he felt likely given to anyone if only otherwise sup- (B) Program services (A) Total 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD porting the organization, as he has himself done. No evi- dence was offered about the number of subscriptions that were in effect in the fiscal year 1982 periodArlook, however, has otherwise testified that in the last month or two he was aware that subscriptions to the two newspa- per had risen to approximately 75,000. Although there were presently more energy (general) canvass subscrip- tions, that was because toxic action was a newer pro- gram; and Arlook anticipated that (toxic watch) newspa- per subscriptions would (again) level off with the Citizen Action newspaper subscriptions, as are their contribu- tions overall. According to Arlook, the ($15) subscrip- tion cost is set by the canvassers on basis of what they feel is reasonable to expect to get at the door. Arlook, however, has estimated that more than half of the news- papers that are distributed are unpaid for; and Arlook testified in other explanation that there is a constant ten- sion to get OPIC's publications out to be read by the public, and a necessity for some level of support pay- ment to continue. It is Arlook's testimony that OPIC's cost of printing, postage, computer, and staff time in re- search writing and editing exceeds by far what is brought in, though no hard figures are directly supplied. Respondent has also presented in evidence OPIC's 1982 return of organization exempt from income tax, which is generally supportive of OPIC's other financial statements hereinabove received. Arlook has testified generally that publication distributions are not operated on a profit basis. In the above tax return data for 1982 (fiscal year, on gross revenues shown of $1,387,359 func- tional expenses are shown (inter alia) of: (C) Manage- (D) ment Fund and raising general Postage and Shipping 12,969 8,375 1,168 3,426 Printing and Publications.— 14,153 11,043 748 2,363 In addition thereto, under (Sec. 43) other expenses there appear: (C) Total (A) Program ment Fund services and raising (B) Manage- (D) general Advertising 13,955 8,951 0 5,004 Mailing Service 6,966 4,597 488 1,881 Newsletter 16,874 11,137 1,181 4,556 Publications 1,869 1,869 0 0 Although that "Return" additionally reflects all compen- sation, pay, benefits, etc., in much more significant total and as ascribed to program services, management and general, and fundraising, nonetheless there is seemingly no yardstick effectively presented for an accurate meas- urement of the fiscal 1982 subscription publications reve- nues versus costs, particularly on major factor of related (proportional) staff cost and overhead. Thus, to the extent Arlook's testimony is that OPIC's publication distributions in fiscal year :1982 were not op- erated on a profit basis in the absence of evidence about number of subscriptions then distributed, and the limita- tions of other data supplied, in my view, the same is in- sufficient to firmly conclude on the matter. Though one may suspect that with (both) newspaper subscriptions, most recently (mid-1984) approximately 75,000 subscrip- tions, seemingly with reasonably inferable relation to over $1 million in revenues derived from individual con- tributions of $15 (or more), that nonprofit assertion of Arlook may no longer be so, save in some other intended sense, viz, that newspapers are not solely (or even still in majority) distributed on a subscription basis, and/or even the more basic argument, that these newsletters and/or newspapers are not being sold at all in the commercial sense, as OPIC has urged in brief, discussed infra. Hard facts for clear costs-profit publication relationships are simply not presented for accurate determinations in this record. However, it otherwise appears that the General Counsel's argument for assertion of jurisdiction on pub- lishing company basis is itself built on general inference, contrary to Employer contention, that there is a com- mercial relationship sufficiently evidenced in contribution revenue's relation to subscription, which is also to be dis- cussed more fully infra. With regard to newspaper publi- cations, on the one hand, no hard evidence clearly evi- dencing sale of newspaper at the door is presented, e.g., subscription order being filled out at door, and copy to subscriber. On the other hand, in regard to even those newspapers distributed on nonsubscription basis, Citizen Action newspaper (Nov.-Dec. 1983) in evidence invites subscription to that newspaper at $15/yr.; and Toxic Watch Newspaper (May-June-July 1984) invites sub- scription to each of the newspapers, respectively at $15/yr. However, I have no hesistancy in concluding all the publications in their content are wholly oriented in service to OPIC's chartered purposes. There is no evi- dence presented that OPIC itself subscribes to AP, UPI, or any other national news service. There is no commer- cial advertisement apparent in the publications. There are no syndicated features in the general sense. There is an ongoing count made of how, many pieces of literature are distributed to the community by canvassers. 4. Canvass operational management; and canvasser selection, training, attrition, and crosstraining OPIC employs two regional staff directors who, inter alia, have responsibility over OPIC's canvass operations. Don Wolcott is one of the regional staff directors and he is located in the Cleveland office. Wolcott has had 5 years of canvassing experience. Wolcott had previously worked for organizations apparently similar to OPIC, viz, for a Missouri public interest research group in the State of Missouri; and also for Ohio Public Action Coun- cil in Champlain, Illinois, as a canvasser for about 1 year and 2 months. Thereafter, in July 1982, Wolcott was hired by OPIC as the canvass director for its Cleveland office. In 1983, Wolcott was given additional canvass re- OHIO PUBLIC INTEREST CAMPAIGN 289 sponsibilities outside Cleveland; and he was made a re- gional staff director. Wolcott's present canvass responsi- bilities cover OPIC's offices in Cleveland, Columbus, and Akron, and he shares responsibilities in Toledo. Seemingly the other regional staff director has compara- ble responsibilities, if not in the Toledo office, in the re- maining area offices. Arlook has testified in general regarding the require- ments of canvassers and their training, but essentially left the details of canvasser selection, training, and particular- ly of cross-training to Wolcott. Arlook, however, has also testified broadly about the general purpose of cross- training as being designed to give promising canvassers an opportunity to have a different experience doing the same kind of work in a different State; or in a different place in the same State; or similarly, doing different kinds of canvassing, as on a different issue, or on elector- al work; all as a way of increasing peoples' commitment, broadening their outlook, and motivating them, which are deemed essential elements in the training and devel- opment of good canvassers. Wolcott has additionally noted that if a canvasser experiences making quota in an- other State, or even elsewhere in the same State, the person develops more confidence that he or she can make quota anywhere, on any of the different OPIC campaign issues. In the latter regard, Arlook has testified that the reason for the establishment of a required quota concerns both °PLC's educational program outreach to the public, and lobbying, and (as earlier noted) OPIC's related need to raise money to continue those activities. In Arlook's view, the ability of a canvasser to raise quota is a good standard for measuring the canvasser's per- formance, not only in the necessary fundraising, but also in the program's outreach to the public, as meeting quota is deemed the best objective indicator of a quality in communication of OPIC's purposes and positions by the canvasser to those of the public contacted in their neigh- borhoods. It is apparent from this record that OPIC relies very substantially on canvass-generated income not only to continue the funding of its outreach programs, but for substantial contributions to organization. Arlook (and/or Wolcott) has confirmed that canvass- ers have been sent out on cross-training, inter alia, to: The Citizens Action Coalition of Indiana; to "9 to 5," a combined national labor organization, and women's movement (of which Arlook's wife is president), which does related convassing; and to various other organiza- tions (similar to OPIC) in Nebraska, Virginia, New York, and Florida, but not thus far to the (organized) Massa- chusetts Fair Share. According to Arlook, out-of-state training is arranged informally with the out-of-state orga- nizations, though, again, he left details of such to later Wolcott exposition. However, Arlook has testified that OPIC pays for all the work done in Ohio; but in regard to work done by OPIC canvassers, etc., outside Ohio, that is someone else's bill. Arlook has testified generally that affiliated and coali- tion organizations have annual canvass retreats, most of which have heretofore been held in Ohio, but that (at least) onte canvass conference was held in Pittsburgh, Pennsylvania, at which some 1000 canvassers and direc- tors were in attendance. Wolcott essentially confirmed the above, but further explained there are also meetings of canvass directors, usually three to four times a year. Those in attendance plan budgets and talk about cross- training schedules. Travel weeks are at this time set up in advance. Travel allowed for out-of-state cross-training is usually 3 weeks, but may be less for in-state, e.g., a week. Housing is provided by staff members, usually by the canvass directors. According to Wolcott, approximately every third weekend, individuals are afforded an opportunity to cross-train, Wolcott otherwise confirming Arlook on the purposes for the different locations and issues; and adding also, with purpose to break repetition, or to enable the canvasser to observe an issue is a hot issue elsewhere, and to pull that individual further into the or- ganization, while developing them. According to Wol- cott, approximately one-third of staff will cross-train, though usually after the individual has been on staff a while, and developed some degree of confidence in an ability to raise quota locally. Specific requests may be made by canvassers to cross-train out-of-State, usually in circumstances where the canvasser has a relative living in the area. Totals on financial records in evidence reveal that transportation ($69,910) and travel expenses ($28,615) are broken down between (programs) Charitable—nonlobby- ing, electoral and legislative (lobbying); and also between (supporting services) management and general, and fund- raising, as follows: Chari- Manage- table Elec- Legis- Fund- Nonlob- toral lam ment, e raising General bying Transportation 15,062 899 31,573 113 22,263 Travel 8,748 1,105 11,478 3,122 4,162 Conferences, conventions, and meetings ($18,749) are seemingly broken down only between program ($12,044), management/general ($1097), and fundraising ($4162). However, there is no clear demarcation provided regard- ing out-of-state transportation or travel expense. If any- thing, the above records, in light of Arlook's testimony, would indicate that canvasser transportation out-of-state is someone else's bill, or cost, as is (alone) definitively shown to be the case in Wolcott's travel out of state in providing certain services to other organizations, dis- cussed infra, if not that of the individual. There is a canvass director at each of the offices under Wolcott's authority. Progression locally is normally from canvasser to field manager trainee, to field manager, though some experienced canvassers who do not desire at the time to become a field manager may become a senior canvasser. Progression from field manager, appar- ently accomplished usually after about 1 year, is to can- vass director trainee and then to canvass director. In ad- dition to training and developing the canvass directors, 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wolcott also works with the field managers and helps to develop and train staff, by briefings and otherwise, local- ly in Cleveland, and as well in the other offices during his regular visits. Wolcott thus travels to each office at least once every 3-4 weeks, and more often in the summer. Wolcott works very long hours, usually putting 50-60 hours a week in at the Cleveland office, along with (currently) spending 25 to 30 percent of his time traveling in visits to the offices, and on other matters, certain of which relates to consultant work for organiza- tion outside the State of Ohio. The number of canvassers employed will vary at given locations; but, e.g., at Cleveland, have apparently been as high as 35, but have averaged in number from 15 to 20. With regard to the selection and OPIC employment of canvassers, Wolcott has testified that OPIC runs classi- fied ads, Sunday through Wednesday, every week under heading of political activist, environmental activist, or community outreach, and with some brief statement of the nature of OPIC work. OPIC's work is somewhat sea- sonal, as winter is restrictive of effective canvassing. Attrition in responding applicants, those in initial 2- week training, and otherwise, is very high. Of those re- sponding to the ad and initially scheduling for an inter- view, 30 to 50 percent do not show up for the interview. Although Wolcott will help with interviews, the canvass directors perform most of the interviews by far; and the same takes up an appreciable amount of his or her time. Individuals who do report for the interview are given a much more detailed exposition of the work, with de- scription of the organization, pay, benefits, a preview of an initial 10-day training program (with its reading and test review of files, and/or briefings), and advancement potentials. If the applicant remains interested and has not revealed energy flaws or fatal discomfiture at asking for money, the applicant is next scheduled for an observation day, at which time the applicant goes with a designated staff member into the field to observe the work being done firsthand. Anywhere from 30 to 75 percent of those interviewed in the offices may come in for an observa- tion day; but only one-half of them will go on to further training. A review of the personal experience of the ob- server is made after the latter's observation of the work; and a decision made at that time to hire, or not. It is only at this time of hire that the individual goes on OPIC payroll. Wolcott has testified in detail as to the nature of the daily program of read files, tests, discussions, briefings, canvassings, retraining, alternate style observations, "rap" development, role playings, and regular weekly briefings by higher staff and outside experts and con- fronting interests, the details of which need not be re- peated, beyond observation and funding that the salient thrust of the overall program is one clearly designed to make the canvassers who continue, as informed and knowledgeable of issues and organizations as possible, and developed in their skill and technique as a canvasser. In explanation of the high attrition Wolcott has testi- fied that the work, which basically involves talking about political issues at home doors, and asking people for money there, is very difficult; and all canvassers en- counter much apathy. The pay is low, and the canvassers themselves are generally talented people, many with col- lege backgrounds, who can readily make more money doing something else; and the rejection at the doors, if not sooner, eventually discourages many, who then simply do not come back. Wolcott has summarized with the Cleveland office as example, that in the course of a year there were between 200 to 250 who appeared for an observation day; but only about one-half that number stayed for 1 more day; and approximately 65 percent of the (first) number clear- ly did not stay beyond the 2-week training period. In Wolcott's 3-year experience at Cleveland, some 300 to 350 have gone through the 10-day training program; but in his last 2-year experience he had observed that only 2 or 3 canvassers out of 100 will continue in employment over a year. At any one time 25 to 30 percent of canvass crews are new (1-2 days), another 15 to 20 percent will still be within their first 2 weeks of employment, and most of the remainder of the active canvassers will have been employed somewhere between 2 weeks and 3 months. Overall, there will be several dozen pass 3- month tenure; but only half that pass 6 months. Generally speaking, field managers are in charge of running the canvass crews in the selected neighborhood, which are rotated, desirably, but not necessarily, on an annual basis. Data and files on neighborhoods are col- lected from census and a variety of other sources;, and these and schedules of canvassers (after view of prior week) are reviewed at the start of each week by the can- vass director and/or field managers, in preparation for that week's work. Logistics of available workers and transportation are at that time reviewed and settled on. Canvass directors arrange for any required permits. Out in the field, the field managers will make an on-site survey of the neighborhood to be visited; and on return, will make a final review of the "rap" to be presented, which is frequently oriented to the neighborhood to be visited; and the field manager will then inform the can- vassers how much money is to be asked for in that given neighborhood ("turn. Dave Williams, canvass director in Cleveland in material periods, has testified that there are 2 million people in this area; that they do not go to extremely low income, or people fixed on welfare, but otherwise they visit every kind of neighborhood you can think of. Although OPIC keeps records of neighbor- hoods visited, canvassers do not rotate (earlier) into a neighborhood because of its (prior) recorded contribu- tion (per hour) average. An individual canvasser will normally be assigned 80 houses to visit each night, though a skilled canvasser will not need that many to make quota. Visiting hours are normally of 5-hour duration, between 4 to 9 p.m. Field managers regularly, and canvass directors occasionally, though particularly new canvass directors, will canvass by themselves, if not with observer or retrainee. It is es- sential that a field manager regularly makes quota. Can- vassers routinely canvass individually. When initially starting a new canvasser must make an established quota of $80 in any 1 day in the first week. Thereafter, the can- vasser must make the regular quota as earlier described. If a regular canvasser fails to make quota in 1 week, the OHIO PUBLIC INTEREST CAMPAIGN 291 canvasser will be put on probation; and the canvasser must make quota the next week, or the canvasser is re- leased. Canvassers on probation are noted in each week's review. There are a significant number of terminations associated with failure to make quota. Wolcott has testified generally that neither technique nor knowledge of issue content will carry a canvasser over the long run. The canvasser has to feel good about the work being done, which on other occasions was de- scribed by Wolcott as having some form of commitment to the work itself, and in that respect, essentially has cor- roborated Arlook thereon. 5. Other evidenced organizational relationships Insofar as the record reveals, the Hudson Bay Compa- ny (HOC) (apparently) run by one Mark Anderson, in general, helps design and implement (seemingly canvass) programs for organizations like OPIC, in various States. OPIC itself has a contract with HBC under which OPIC pays HBC for certain canvass consulting services, viz, for technical consulting services of Anderson on how to build OPIC's canvass in Ohio. Wolcott does not receive any payment from HBC for Wolcott's own work for OPIC. HBC does not pay Arlook for any service. How- ever, HBC has paid Wolcott for certain consultation work that Wolcott has performed for other organizations that are located outside the State of Ohio. Thus Wolcott has testified that because of his 5-year experience in can- vassing, Wolcott has been heretofore called on to pro- vide certain services for other organizations, in Missouri (e.g., for the Missouri Citizen Labor Coalition, and the Missouri Coalition for the Environment), and elsewhere sitnilarly. According to Wolcott, the various arrangements are as follows. The services that Wolcott has provided these out-of-state organizations were: participation in organiz- ing and in strategy sessions; provision of assistance in the design of issue "rap" to be delivered at home doors, and in the development of literature for campaign issue(s); and he had had direct involvement in the training and supervision of their canvassers. The out-of-state organiza- tion pays Wolcott directly for Wolcott's travel, and for his other out-of-pocket expenses. However, the given or- ganization has paid HBC for canvass service consulta- tions (as does OPIC). HBC in turn pays Wolcott, on ap- parently a per diem basis, for Wolcott's time actually spent in consulting with these out-of-state organizations, out of the organization's fee previously paid by them re- spectively to HBC for that service. 6. Contentions of the parties, analysis, findings, and conclusions a. General contentions With asserted reliance on the holdings of Polish Na- tional Alliance v. NLRB, 322 U.S. 643 (1944); St. Aloysius Home, 224 NLRB 1344 (1976); First Church of Christ Sci- entist, 194 NLRB 1006 (1972); California Medical Assn., 223 NLRB 201 (1976); and Disabled American Veterans, 112 NLRB 864 (1955), the General Counsel has essential- ly argued that although OPIC is a nonprofit organiza- tion, and has engaged in political lobbying activity, OPIC is shown herein to have engaged in certain com- mercial publishing activities; and that in light of OPIC's admissions otherwise to having had an annual gross reve- nue in excess of $1 million, and its admission to having had direct inflow of goods and services of $36,000, the above business activities of OPIC have effectively placed it within the Board's jurisdiction. In that regard the Gen- eral Counsel has urged that Respondent OPIC effective- ly meet any of the Board's discretionary monetary (pre- sumably gross revenue) standards, but has specifically argued in brief that OPIC meets the Board's discretion- ary standard of $250,000 for publishing operations, which standard it is urged should be applied to OPIC, without, however, specific case authority being cited in support of latter contention. OPIC has readily acknowledged that the jurisdiction of the Board is as broad as the power of the Federal Government under the commerce clause of the Constitu- tion, Polish National Alliance, supra, and with other cases cited; and OPIC has as readily conceded that the Board with regularity has asserted jurisdiction over nonprofit charitable organizations providing various services, e.g., hospitals, nursing homes, job corps centers, daycare cen- ters, and legal services. Respondent nonetheless observes there are clear exceptions to Board jurisdiction assertion, viz, those imposed by Congress in the Act; those self-im- posed by the Board; and certain limitations operative on the Board such as have been determined by the Supreme Court. Thus, OPIC has referred to the congressional ex- clusions of certain entities as employers in Section 2(2), and of certain classes of workers in Section 2(3) of the Act. OPIC has also noted the Board's discretionary standards, with particular reference to the Board's Rules and Regulations (other rules), specifically Section 103.3, and generally 29 CFR § 103.1 et seq. (1983). However, OPIC relies principally herein on a claim of application of lack of Board jurisdiction under first amendment guideline limitations as heretofore determined by the Su- preme Court, viz, in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499 (1979) (and with reliance on the Board's subsequent recognition of the latter, Faith Center-WHCT Channel 18, 261 NLRB 106 (1982)); with comparative reliance on Supreme Court similar approach in a matter involving other than a religious organization's first amendment guarantees (separation of powers) on McCullough v. Sociedad National de Marineros de Hondu- ras, 372 U.S. 10 (1963); and in support of its own specific claim made to a first amendment guarantee status as a political action organization comparable to that of the re- ligious organization in Catholic Bishop of Chicago, supra, would rely on holdings of Buckley v. Valeo, 424 U.S. 1 (1976); and Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620 (1980). Thus, while not denying the facts regarding the amount of its annual gross revenues, nor of its purchases of goods and services directly in interstate commerce, OPIC essentially contends that on the facts of this record, it is shown indisputably that OPIC is a political advocacy organization; and it thus has argued that under principles illucidated in connection with first amendment claims in Catholic Bishop of Chicago, supra, it is similarly 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not affirmatively shown herein that Congress has granted the Board jurisdiction over political organizations such as OPIC. To the contrary, OPIC contends an examination of the Act and its legislative history makes it clear that Con- gress simply gave no consideration to Board jurisdiction over political advocacy organizations; and it advances further argument that OPIC's own research has failed to reveal a single case where the Board has asserted juris- diction over a political advocacy organization such as OPIC, an organization whose raison d'etre, is the propa- gation of political opinion. OPIC contends, for example, the Board has not heretofore asserted jurisdiction over either the Democratic or Republican National Commit- tee, or any of their state affiliates; nor over Americans for Democratic Action, or Americans for Conservative Action; nor over Common Cause, or the National Right to Life Committee, or the National Right to Work Com- mittee. 2 Respondent OPIC thus contends that the Board is without jurisdiction over it as a political advocacy or- ganization; and it urges accordingly that the complaint against it should be dismissed. The General Counsel counters with specific assertion that the Board has assert- ed its jurisdiction over an employer in lobbying circum- stances, with reliance on Disabled American Veterans, supra; and basically contends the holding of Catholic Bishop of Chicago is inapplicable. In anticipation that the General Counsel was to con- trarily urge on the Board an assertion of jurisdiction on the basis of OPIC's publications, and though with pass- ing assertion that the Supreme Court in the Catholic Bishop of Chicago case, supra, suggested that its decision in Associated Press v. NLRB, 301 U.S. 103 (1937), turned on a failure of proof rather than a conclusion of law, 440 U.S. at 507, OPIC, in any event, would distinguish the holding of Associated Press as involving a purely com- mercial kind of speech, because there, it is argued, the nonprofit sale of news gathering and distribution services of Associated Press was to members engaged in a com- mercial business for profit, in contrast to the contended politically inspired and motivated canvassing being car- ried on by OPIC. 2 It is (only) argued in brief that these organizations have existed far longer and have much larger total revenues and more numerous inter- state contacts than OPIC does. Though it would seem that the existence, and general purpose of many of such organizations are matters of such common knowledge and experience as to be Judicially noticeable in gen- eral, it also appears the specific scope of a given total organization well may not be so. See, e.g., Automobile Workers v. Right To Work Founda- tion, 590 F.2d 1139 (D.0 Cir. 1978); and see Automobile Workers v. Right To Work Foundation, 113 LRRM 3468 (D.C.D C. 1983). Beyond observa- tion that the court also followed a deemed obligatory approach where the constitutionality of a statute is drawn into question, to "ascertain whether a construction of the statute is fairly possible by which the ques- tion may be avoided," it would, in my view, be improvident to draw broad supporting conclusions as OPIC has urged without specific sup- porting evidence being offered in adversarial proceedings; or such as might be effected by the Board through applications of its rule proce- dure; and particularly so where the same court has earlier observed that reconciliation of the fundamental but conflicting causes there involved (albeit under a different statute (LMRDA)), "would have to be made in the context of the labor relations setting," citing NLRB v. Gissel Packing Co., 395 U S. 575,617-618 (1969). b. Preliminary analysis of general contentions First, to the extent that OPIC would seek to now re- raise broad contention that a newspaper publishing busi- ness may not be covered by the Act because of the pro- tective reach of the first amendment, that argument has been addressed and the contrary definitely resolved here- tofore by the Supreme Court in Associated Press v. NLRB, supra; and see also Okkhoma Press Pub. Co. v. Walling, 327 U.S. 186, 193 (1946), in which the Court, in addressing such an argument on a similar issue, and citing the Associated Press case, supra, earlier observed, "The Amendment does not forbid this or other regula- tion which ends in no restraint on expression or in any other evil outlawed by its terms and purposes." With regard to OPIC's arguments, such as may be viewed as resting on the Act's employer and employee exclusion, Section 2 of the Act, definitions, pertinently provides in part: (2) The term "employer" includes any person acting as an agent of an employer, directly or indi- rectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political sub- division thereof, or any person subject to the Rail- way Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of Officer or agent of such labor organization. [The health care amendment deletion of July 26, 1974, Public Law 93-360 etc., is omitted.] (3) The term "employee" shall include any em- ployee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or be- cause of any unfair labor practice, and who has not obtained any other regular and substantially equiva- lent employment, but shall not include any individ- ual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an in- dependent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. Second it is readily concluded that the Act's employer and employee exclusions, in clearly not being inclusive of OPIC as a claimed nonprofit political action organiza- tion, or OPIC's employees as a class, do not by their terms of exclusion advance OPIC's position of lack of Board jurisdiction, any more than does the varying extent of Board declination of jurisdiction over certain other businesses by rule, which businesses equally clearly are of specific nature discernibly other than that of OPIC, cf. or 103.1 colleges and universities; 103.2 sym- phony orchestras; and horseracing and dogracing indus- OHIO PUBLIC INTEREST CAMPAIGN 293 tries. Nor it would seem, are the specific characteristics of any such industries, as therein considered and evaluat- ed, particularly 103.3 (e.g., seasonal business, high degree of state regulation, and high employee turnover in the horseracing and dogracing industries) to be deemed de- finitive or controlling on the considerably different OPIC business issues that are presented herein; and in my view, particularly so where employee turnover relat- ed to failing to make quota, was a major element in origination of the union activity herein. The "employee" coverage of Section 2(3) is very broad, with specified ex- clusions not encompassing OPIC's employees. On the other hand OPIC accurately notes there is no specific reference in the above to private political action organi- zations. Section 14(c)(1) referenced therein moreover provides generally that: The Board, in its discretion, may, by rule of deci- sion or by published rules adopted pursuant to the Administrative Procedure Act, decline to assert ju- risdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute on com- merce is not sufficiently substantial to warrant the exercise of its jurisdiction: Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert juris- diction under the standards prevailing on August 1, 1959. In exercising its discretion by rule, the Board has spoken of limiting an exercise of its fullest jurisdiction to cover- age of "enterprises whose operations have, or at which labor dispute would have, a pronounced impact on the flow of interstate commerce." In its establishment of standards by rule the Board has otherwise expressed an adherence to broad rule principles that it will cover busi- nesses that, "have a substantial impact on commerce"; and, as well, that, "will not result in an unmanageable in- crease on the Board's caseload." Id. OR 103.1-3. It is preliminarily concluded, in light of the Board's (nonspecific standard) jurisdictional approach in Califor- nia Medical Assn., supra, and particularly in light of the parties' full litigation of the nature of OPIC's publica- tions and subscriptions at hearing, and their essential joinder on that issue in brief, that it would seem appro- priate in this case to address the issue of applicability of the Board's publishing company standards, albeit the same was not set forth in a specific allegation in the complaint. In general, the Board will assert jurisdiction over newspaper publishing companies that hold membership in or subscribe to interstate news services, or publish na- tionally syndicated features, or advertise nationally sold products, if the gross volume of business of the particular enterprise involved amounts to $200,000 or more per annum, Bel!vale Employing Printers, 122 NLRB 350 (1958); and even albeit that a significant amount thereof may be in revenue received from other source, e.g., job printing, cf. Berea Publishing Co., 140 NLRB 516 (1963). The Board will also assert jurisdiction over other type publishing enterprises, and it has heretofore done so on showing of the business meeting the Board's established (general) nonretail standard of $50,000 (direct and/or in- direct) inflow, cf. Roberts Press, 188 NLRB 454, 457-458 (1971), enfd. 451 F.2d 941 (2d Cir. 1971); and on similar nonretail outflow considerations, cf. Stor-Ad Printers, 131 NLRB 556, 557 (1961). See generally Siemons Mailing Service, 122 NLRB 81, 85 (1958). In an appropriate case, e.g., one with clear showing of such a business meeting retail standard of $500,000 gross revenues, with an evi- denced statutory jurisdictional requirement, the same would be sufficient for assertion of jurisdiction of a pub- lishing company that also engaged in retail sales. Cf. Mann Products, 128 NLRB 546, 547 (1960), on the appro- priateness of an application of either retail on nonretail standard to a single-integrated business with both retail and nonretail business aspects. See and compare Square Binding Co., 146 NLRB 206 (1964). On the underlying reasoning for the Board's prior gen- eral expression of reasonable assurance that an employ- er's retail operation meeting an established $500,000 gross revenue retail standard will cover all retail indus- tries tending to have a pronounced impact on commerce, cf. Carolina Supplies & Cement Co., 122 NLRB 88 (1958); and on the requirement nonetheless of a statutory juris- dictional showing in gross revenue standard cases, cf. Catalina Island Sightseeing Lines, 124 NLRB 813, 815 (1959). Indeed, in establishing the above basic nonretail, retail, and newspaper publishing standards demarcating the discretionary jurisdictional monetary line below which it would decline to assert jurisdiction the Board earlier opined jurisdiction will be asserted thereby over all unfair labor practices that exert or "which tend to exert a pronounced impact upon commerce." Cf. Siemens Mailing Service, supra, 122 NLRB at 84; Carolina Supplies & Cement Co., supra, 122 NLRB at 90; and Bellville Em- ploying Printers, 122 NLRB at 352. OPIC does not itself operate a complete publishing house. Although OPIC has regularly researched, au- thored, edited, and laid out its publications in regard to their content and formats, it has essentially always con- tracted out the printing of the publications to outside printing houses. Assuming nonetheless, even in those cir- cumstances, that OPIC may be concluded to be engaged in a business publication of, inter alia, the newsletters and/or newspaper, and that in subscription form and period of circulation they may arguably be construed to be a published newspaper, there is still no evidence of- fered herein that would be sufficient to warrant or sus- tain a finding that OPIC meets any of the other newspa- per publishing business criteria that were coterminously established by the Board as necessary predicate for Board assertion of jurisdiction over a newspaper publish- ing business under is established $200,000 gross revenue standard. Thus, no showing was made of OPIC holding membership in or subscribing to any interstate news services; nor of it publishing nationally syndicated fea- tures; nor of it advertising nationally sold products. It is accordingly preliminarily concluded and found that the General Counsel does not prevail to the extent any urging is to be made for Board assertion of jurisdiction 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on a basis of OPIC's engagement in a newspaper publish- ing business. Assuming also for present purpose, without necessarily so finding, that OPIC may appropriately be otherwise viewed as having engaged in a commercial publishing business activity of some other sort over which the Board would assert its jurisdiction, it is no less apparent from the evidence such as is presented above, that there is, in any event, insufficient evidence presented to sup- port a finding that OPIC has met the Board's nonretail inflow or outflow standard, on any basis. Accordingly, what at best would appear for further review, under any remaining aspect of an application of an urged estab- lished Board publishing standard, is a consideration of OPIC's publishing activity meeting a retail standard of $500,000 gross revenues in sales, though with basis for a statutory jurisdictional requirement itself in a requisite amount appearing present herein. It is next to be observed, however, that there was again insufficient defmiteness in the presented evidence that the amount of OPICs to be argued retail sales, e.g., revenues generated by the (unspecified) number of sub- scriptions in fiscal year 1982 (and from other source), ac- tually exceeded $500,000. In contrast there was much general evidence that there were more commonly contri- butions of lesser amount than that to occasion a newspa- per subscription, be it by sale or grant. On the other hand, it would appear, in light of Arlook's general testi- mony that within the last 2 months (thus in 1984 and before hearing) he had observed that subscriptions to both Citizen Action and Toxic Watch newspapers had reached 75,000, that OPIC's total in revenues as related to ($15) subscriptions do now likely well exceed $500,000, thus seemingly within a timely period for asser- tion of Board jurisdiction, namely, in the year preceding hearing, cf. Aroostock Federation of Farmers, 114 NLRB 538, 539 (1955). The jurisdictional issue as presented herein, however, does not in any event end there. This is so because the parties are in further fundamental dispute both over whether OPIC is actually engaged in any commercial publishing, or other commercial activity; and over the nature of OPIC as a political action organiza- tion, and a fundamental effect thereof on the matter of Board asertion of jurisdiction over such an organization. In regard to contended commercial activity of the type it is contended that OPIC has engaged in, the Gen- eral Counsel has advanced reliance on a Board assertion of jurisdiction over a private nonprofit incorporated as- sociation in California Medical Assn., supra, in which it was determined by the Board that that employer had en- gaged in certain commercial publishing activities in regard to the publication of its medical journal; and the General Counsel would also rely on the Board's asser- tion of jurisdiction similarly over a determined commer- cial publication of a newspaper by a religious organiza- tion where it was urged the newspaper was published in a manner compatible with the views of the religious or- ganization, in First Church of Christ Scientist, supra. OPIC's contra-argument is essentially an assertion that OPIC does not sell subscriptions to its newsletter or newspapers, in the commercial sense. OPIC has thus urged in brief to the contrary that fundamentally, "Can- vassers do not sell newsletters or subscriptions, they pro- mote the organizations [sic] political agenda and solicit financial, verbal, written and moral support for that agenda. Individuals who provide the requested support are sent one or both of the organization's publications [sic] to recognize, reinforce, and, at times, renew that support on another issue." OPIC further contends that it is not even to be viewed as a nonprofit charitable organi- zation, but a political action organization, as has been recognized by the IRS. As the General Counsel would have it generally noted, it has been long held by the Supreme Court that Congress has empowered the Board to assert jurisdiction over a significant business activity of a nonprofit charita- ble organization, e.g. one conducting an insurance busi- ness, just as well as that of the regular commercial enter- prise, Polish National Alliance, supra, 322 U.S. at 648. In St. Aloysius Home, supra, 224 NLRB at 1345, a case aris- ing after Congress' deletion in 1974 of the nonprofit health care exclusion theretofore contained in Section 2(2) of the Act, the Board then stated, with application to nonprofit charitable, or other (referenced) "worthy cause" employers, "Now, the only basis for declining ju- risdiction over a charitable organization is a finding that its activities do not have a sufficient impact on interstate commerce to warrant the exercise of the Board's juris- diction." 3 In California Medical Assn., 223 NLRB 201, 202 (1976), a membership association case relied on by the General Counsel, the Board asserted jurisdiction over the employer, a nonprofit corporation (CMA) that was en- gaged in scientific and educational activities. Although observing that it had not theretofore established a juris- dictional standard for associations such as CMA, the Board further concluded that it was unnecessary to do so in that case as CMA's gross income had exceeded any standard the Board was likely to apply. The facts as found in that case reveal that of $3 million received in dues from its members, $2-1/2 million was forwarded to the American Medical Association (AMA) for which service CMA received $25,000 in income from AMA, which added to the $500,000 in CMA dues income re- tained. In rejecting CMA's claim that it would not effec- tuate the purposes of the Act for the Board to assert ju- risdiction the Board stated, "It is well established that the test used by the Board in determining whether to assert jurisdiction over a nonprofit organization is wheth- er it is engaged in activities which are 'commercial in the generally accepted sense." The Board specifically found that CMA's publication of its monthly medical journal was a commercial as well as an educational venture, as was evidenced by the substantial revenue ($230,000) de- rived from advertisements of nationally sold products therein, and from the sale of subscriptions and reprints 3 In that connection, for learned treatise's general observation of henceforth entity classification being based on detertruned substantive purpose, and Board Jurisdictional assertion on the basis of the same juris- dictional standard that applies to the correspondent proprietary organiza- tion, cf Developing Labor Law, 2d ed., Vol. II, Ch. 30, S. 18. Nonprofit, Private Educational and Religious Institutions. OHIO PUBLIC INTEREST CAMPAIGN 295 (seemingly $115,000),4 thus a total of $345,000 in gross revenue income was derived from the publication, sale, and distribution of the medical journal alone, to say nothing of related revenues of certain specialized tax and (tape) sale subsidiaries of $159,000 and $14,000 respec- tively. CMA had also received $44,500 in rental fees from exhibitors at its annual meeting. The Board also noted, inter alia, that the Association had also made sub- stantial expenditures for interstate travel of its members and staff ($67,900); that it had paid substantial sums of money to firms outside California for its employees' pen- sion plan ($87,541); that it had paid commission fees to out-of-state sales representatives ($31,000) for their solici- tation of journal-subscription services; and that it had mailing costs ($30,000). The Board further observed that it had much earlier asserted jurisdiction over a similar association in Ameri- can Medical Assn., 39 NLRB 385, 387 (1942). However, there the Board had previously asserted jurisdiction over AMA's medical magazine and pamphlet publishing in- dustry on showings that of AMA's purchases of raw ma- terials (principally paper) valued at $371,494, 90 percent had been purchased outside the State of Illinois, where AMA's publishing house was located; and that 90 per- cent of its two paid weekly circulations (viz, Journal cir- culation of 98,002, and Hygeia circulation of 110,000) in turn was shipped out of State. The Board had otherwise also earlier described its ap- proach to an assertion of jurisdiction in connection with commercial activities of religious organizations, in First Church of Christ case, supra, 194 NLRB at 1008, as, "Al- though it is the Board's general practice to decline juris- diction over nonprofit religious organizations, the Board does assert jurisdiction over those operations of such or- ganizations that are, in the generally accepted sence, commercial in nature," There, the (employer) First Church's contention was that its publishing activities, in- clusive of its publishing a newspaper of daily circulation throughout the world of 230,000 (with an annual gross income that exceeded $1 million, and with purchases across state lines which exceeded one million), and in manner compatible with its religious point of view (but one also otherwise with usual newspaper features, includ- ing subscription to interstate news services, syndicated features, and national advertisements), and its publication of other religious publications, with worldwide (inclusive seemingly of nonretail) sales and distribution, and its op- eration of a significant number of apartment buildings under a related trust (with gross revenues in excess of $500,000, and with out-of-state purchases approximately $50,000 annually), were not commercial enterprises es- sentially on the basis of its religious motive in engaging in such activities. The Board, however, noted with a stated reliance on Board earlier holding in Sunday School Board of the Southern Baptist Convention, 92 NLRB 801 (1950), that it had long held, "that it was immaterial that 4 The $115,000 figure is derived as follows There were 26,000 (seem- ingly) dues-paying members, $4 of each of whose dues was determined by the Association as in support of the publication (thus $104,000), which sum, together with specific out-of-state journal purchases ($7000) and re- prints ($4000) amounted to the $115,000 additional revenues herein viewed generated from journal publication and/or arguable sales. an employer's activities may be motivated by consider- ations other than those applicable to enterprises which are in the accepted sense commercial." The First Church of Christ, supra, 194 NLRB at 1088.5 The recitement of the above, inter alia, salient facts present in California Medical Assn., supra, depict such clear and varied aspects of commercial operations of CMA and their effect on interstate commerce, in their individual and combining amounts, and in their nature, such that, whether with eye to aspect of journal publica- tion (with nationally advertised products) generating rev- enues in excess of $200,000; or with eye to total retail sales by CMA (with its subsidiaries) exceeding $500,000; or, with view to one or more varying arguable aspects of nonretail, direct and/or indirect, inflow, or outflow, of goods, services, etc. exceeding $50,000, the same, in my view, makes it appear clear enough that the California Medical Assn., case, supra (and for that matter, the case of First Church of Christ, supra, on its own clear com- mercial facts, as well), are so dissimilar in scope and breadth of commercial factual reach as to be not helpful, if not, more appropriately to be viewed as simply inap- posite on their facts. Particularly would this appear to be so when it is additionally observed presently in contrast on subjects (only) considered, that OPIC, as noted earli- er, has not been shown, to have met any direct and/or indirect, nonretail inflow, or outflow standard; its publi- cations contain no advertisements of nationally sold products, independently generating any commercial income; the extent of any interstate travel of manage- ment, staff, and canvassers clearly did not exceed $50,000, was otherwise left indefinite, and on this record, was most likely, considerably less. OPIC was also not shown to have rental properties with significant income; and it has not been shown that OPIC has purchased from interstate source and benefit/plan. Despite gross revenue and statutory showing, an addressment of discre- tionary jurisdictional standard is required. Cf. Greater Boston YMCA, 243 NLRB 447 (1979). The General Counsel's arguments essentially rest on the distribution of OPIC's publications being commercial activity. There remains otherwise to consider Respond- ent's specific arguments that Catholic Bishop of Chicago, supra, applies to it as a political action organization, pre- cluding a Board assertion of jurisdiction; and, in that connection, the General Counsel's remaining contention that Catholic Bishop of Chicago, supra, is inapposite, and related argument, contrary to OPIC, that the Board has asserted its jurisdiction heretofore over an employer in lobbying circumstances, Disabled American Veterans, supra. 5 The employer in the Sunday School Board case, supra, itself was a separate Tennessee corporation, operating a religious publishing house. That employer was controlled and managed by the Southern Baptist Convention, an official agency of the Southern Baptist religious denomi- nation. The publishing house edited, published, and by gift or sale, dis- tributed religious literature to churches' Sunday schools, and Bible schools affiliated with the Convention in several States. The employer also operated a local retail book store. However, the Board asserted its junsdiction over the publishing house as an employer affecting com- merce, on the basis of the publishing house's out-of-state sales exceeding Board existing standard for assertion of jurisdiction. 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD c. The spec* "political action" contentions OPIC's principal argument that the Board does not have jurisdiction over it essentially proceeds from argued analogy that a construction of the Act by the Board by which the Board would assert jurisdiction over OPIC, a political advocacy organization, would be contrary to the holding of the U.S. Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1970). There a majority of the Supreme Court, in a five to four decision, specifically held: [fin the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the of the First Amendment Religious Clauses. [Id. at 507.] In describing the approach followed in reaching that conclusion the Court had earlier observed: The values enshrined in the First Amendment plain- ly rank high "in the scale of our national values." In keeping with ihe Court's prudent policy it is incum- bent on us to determine whether the Board's exer- cise of its jurisdiction here would give rise to seri- ous constitutional questions. If so, we must first identify "the affirmative intention of the Congress clearly expressed" before concluding the Act grants jurisdiction. [Id. at 501.] See also id. at 500, and cases cited thereat, for expres- sion of the essence of the Court's "prudent policy" that an Act of Congress ought not to be construed to violate the Constitution if any other possible construction re- mains available; and see the Court's similar earlier ap- proach in McCullough v. Sociedad Nationale de Marineros de Honduras, supra, 372 U.S. at 17, 21-22, in which the Court stated, "An Act of Congress ought never to be construed to violate the law of nations if any other possi- ble construction remains . . ." and that, "there must be present the affirmative intention of the Congress clearly expressed." Although the Board itself may and will pre- sume the constitutionality of the Act, the Ninth Circuit Court of Appeals has recently had occasion to observe that does not mean that the Board should ignore consti- tutional concerns in its choices, cf. Service Employees Local 399 (Delta Air Lines) v. NLRB, 743 F.2d 1417, 1429 (9th Cir. 1984). The General Counsel seemingly has first urged that the Catholic Bishop of Chicago case holding has been thereafter limitedly applied by the Board to religious ele- mentary schools. In any event, the General Counsel has accurately observed that the Board has thereafter contin- ued to assert jurisdiction over college institutions, with church relationships, where it is apparent the colleges are, "primarily concerned with providing a secular edu- cation rather than inculcating particular religious values." Thiel College, 261 NLRB 580 (1982); Harbor- creek School For Boys, 249 NLRB 1226 (1980); and Barber-Scotia College, 245 NLRB 406, 407 (1979). How- ever, OPIC has also accurately observed that in a differ- ent type case the Board has itself recognized the limita- tion placed on it by the Supreme Court's admonition of a declination to construe the Act in a manner which would raise such "difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses," cf. Faith Center- WHCT Channel 18, 261 NLRB 106, 107 fn. 2 (1982). In Faith Center, the Board went on to decline to assert jurisdiction over a religious orgamza- tion's essentially religious instruction and fellowship TV- broadcast effort, despite its governmentally required non- religious programming; and even though Faith Center had also received donations from like religious institu- tions for airing the latters' programs, where those pro- grams were concluded to be, "in furtherance of the same religious objectives embodied in Channel 18's own pro- gramming." Id. at fn. 4. The Board itself thus subsequently declined to assert jurisdiction over the church-operated TV station in Faith Center on the basis that the broadcasting there was essen- tially a "purely religious" activity carried on by a reli- gious institution or, at the very least, an activity so ancil- lary to its religious objectives as to warrant the Board to decline jurisdiction, as it had done in the past, with other determined "purely" religious, noncommercial activities of nonprofit religious organizations. See and compare the other cases cited id. at 107 with those in footnote 3. See also particularly, Motherhouse of the Sisters of Charity, 232 NLRB 318 (1977), in which a normally viewed com- mercial endeavor of an employer's (The Order) provid- ing food, power, and laundry services to a nursing home The Order had leased to a hospital caring for retired nuns of the Order and close relatives of nuns of the Order was concluded by the Board to be unique services being provided on actually a noncommercial basis, in that the services were provided essentially, "for the pur- pose of enabling infirm members of the Order to partici- pate in the religious community" which services were thus concluded to be essentially ancillary to, and in fur- therance of, the religious objectives of the religious Order, id. 319. But see also and compare id., fn. 3, and cases cited thereat in which the Board also noted it con- tinues to draw distinction between activities of a reli- gious organization "purely religious," and those not. Indeed, the Board has more recently observed that it will identify such an organization's activity by the nature of that activity's primary concern, e.g., whether it be of child custodial care nature or (religious) education as claimed, cf. Salvation Army Day Care Center, 271 NLRB 195 (1984); 6 and see particularly the cited representation case of same at 247 NLRB 413 (1980). OPIC's basis argument for the contended analogy to the religious institution in Catholic Bishop of Chicago is essentially that OPIC's nonprofit engagement in a variety of political advocacy activities, including lobbying, publi- cation, and communication on behalf of its members, and 6 Chairman Dotson expressed the view in that case that he would follow prior Board policy as set forth in Meng Quong Children's Center, 210 NLRB 899 (1974), and decline to exercise Jurisdiction over nonprofit charitable institutions except when a particular class of these institutions has a massive impact on interstate commerce OHIO PUBLIC INTEREST CAMPAIGN 297 like-minded citizens of the State of Ohio, are clearly themselves within the scope of, and (essentially) "broad- est protection" of, the first amendment, Buckley v. Valeo, 424 U.S. 1, 14-15 (1976). The Supreme Court there stated: Discussion of public issues and debate on the qualifications of candidates are integral to the oper- ation of the system of government established by our Constitution. The First Amendment offers the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for bringing about of political and social changes desired by the people. The First Amendment protects political associa- tion as well as political expression. The constitution right of association explicated in NAACP v. Ala- bama, 357 U.S. 449, 460 (1958), stemmed from the Court's recognition that "[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association." OPIC then argues that the employment relationship be- tween OPIC and its canvassers who are its spokespeople in communicating its positions on issues to members of the public, and soliciting their support, and who are its principal fundraisers have equally clear first amendment implications, Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620 (1980). As urged in brief, OPIC would have the Board consid- er the Court's conclusions therein following its review of a series of cases dating back to the 1930s, in which the Court then noted: Prior authorities . . . clearly establish that charita- ble appeals for funds, on the street or door to door, involve a variety of speech interests—communica- tion of information, and dissemination and propaga- tion of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment. Soliciting financial support is undoubt- edly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particu- lar views on economic, political, or social issues and for the reality that without solicitation the flow of such information and advocacy would likely cease. Canvassers in such contexts are necessarily more than solicitors for money. Furthermore, because charitable solicitation does more than inform private economic decisions and is not primarily concerned with providing information about the characteristics and costs of goods and services, it has not been dealt with in our cases as a variety of purely com- mercial speech. III The issue before us, then, is not whether charita- ble solicitations in residential neighborhoods are within the protectiohs of the First Amendment. It is clear that they are. "[O]ur cases long have protect- ed speech even though it is in the form of. . a solicitation to pay or contribute money [citations omitted]." [Id. at 632-633.] Although acknowledging the Supreme Court has there characterized door-to-door solicitation as intertwined with protected speech, the General Counsel nonetheless argues the Village of Schaumberg case is also inapposite as it involved a municipal ordinance prohibiting door-to- door solicitation by any group that spent less than 75 percent of those funds on charitable purposes; and the General Counsel contends an application of the Act herein would not prohibit such solicitation, but at most af- fects only the manner in which it is to be conducted. However, OPIC cross-contends that, "the Board's as- sertion of jurisdiction over the employment relationship between OPIC and its canvassers would present 'a signif- icant risk" that its interests protected by the First Amendment would be infringed. At the outset, OPIC would have it observed that in the determination of whether "an affirmative intention clearly expressed" (test) is necessary, it is not a matter of resolving the ultimate constitutional issue of whether the Board's assertion of jurisdiction would entail "excessive entanglement" of government in the exercise of first amendment rights (which is the issue only when it has been determined the Act empowers Board assertion of jurisdiction) but rather, it is an initial matter of making "a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed." NLRB v, Catholic Bishop of Chicago, supra, 440 U.S. at 502. OPIC has thus cited as examples demonstrating just such risk, that an unfair labor practice charge might arise out of a dispute between OPIC and a canvasser such as the Charging Party over the prganization's right to assign certain canvass territory to an individual canvass- er; arguing it might be charged that such an assignment was a pretext meant to cover illegal retaliation for pro- tected, concerted activity. In contrast, the selection of canvass territory can frequently be a function of OPIC's political objectives. It might choose to canvass in the dis- trict of a legislator whose vote is key to opposing legisla- tion in conflict with OPIC's goals. It is also argued that the General Counsel would characterize canvass (work) territory as "a term or conditioh of employment" and therefore a proper subject of protected, concerted activi- ty or a mandatory subject for bargaining. As a second example, OPIC argues, another unfair labor practice charge might involve the Board in a determination of whether OPIC discharged an employee for an unlawful reason, prohibited by the Act; or (otherwise), for failing to learn, understand and articulate the organization's po- sition on a particular issue. Or, such a charge might re- quire the Bord to decide whether the format and content of the canvasser's "rap," the frequency of publication of 298 - DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the organization's newsletter, the topics and sites of OPIC news conferences, or the rate of cases in which the organization intervenes were mandatory subjects of bargaining, because each arguably has an impact on the amount of money raisable by, and thus bearing directly on, the wages to be paid to canvassers. OPIC argues it was precisely issues analogous to these that led the Court in Catholic Bishop of Chicago, supra, to conclude that "We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church- operated schools and the consequent serious First Amendment questions that would follow." 440 U.S. at 504. The General Counsel has in that connection in con- trast urged as the underlying reasoning explicated in Catholic Bishop of Chicago, supra, that because terms and conditions of employment of lay teachers employed at parochial secondary schools arguably could include ev- erything that goes on in the school, including education- al content, collective bargaining could infringe on the substance of the school's religious teachings. The Gener- al Counsel has contended that, unlike in Catholic Bishop, bargaining about terms and conditions of employment of the canvass employees would not affect the substantive lobbying efforts of the OPIC organization as a whole, but only the mechanics of its fundraising effort. (But see, id. at 502-504, for concurrence of the Court with stated view of occasions for Board impingement on rights guar- anteed by the religion clauses in the very process of in- quiry, as well as Board conclusions and resolution there- of; and an encroachment on management deemed neces- sarily occasioned by considerations of mandatory collec- tive bargaining; all of which seemingly in prelude recit- ment by the Supreme Court lead that Court to conclude, of the (different) church-teacher relationship in a church- operated school, "We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.") The General Counsel has also urged a determination of Respondent's motivation in firing the Charging Party herein involved little or no consideration of Respondent's substantive po- litical message, but rather a determination of whether the Charging Party reported sick and/or performed his work, in accord with the Respondent's procedure (or as alleged, was discriminatorily terminated under the provi- sions of the Act). But such an argument on motivation seemingly was essentially presented and addressed by the Supreme Court and observed to go to an issue of exces- sive entanglement relating to the Constitutional issue that it was not compelled to reach. Id. at 502. OPIC thus argues in these latter respects seemingly only the more persuasively herein that the Catholic Bishop of Chicago, case's analytical "significant risk" ap- proach has clear application to OPIC's first amendment guarantees. Resultingly, so argues OPIC, there can be no question that an "affirmative intent clearly expressed" by Congress should be viewed a necessary predicate for present assertion of Board jurisdiction over political ad- vocacy organizations such as OPIC. In that respect, OPIC contends examination of the Act, and its legisla- tive history, has made it clear that Congress simply gave no consideration to political advocacy organizations; mid, as noted, it has contended no case has been found of Board assertion of jurisdiction over a political action or- ganization. The General Counsel makes no show of the contrary in legislative history, but the General Counsel has specif- ically contended that in Disabled American Veterans, 112 NLRB 864 (1955), the Board has heretofore (and notably before 1959) asserted jurisdiction over a fundraising arm of a membership corporation that then used the funds, inter alia, to lobby Congress for legislation beneficial to the interest of disabled veterans. This fundraising arm had raised these funds by mailing unsolicited miniature li- cense tag key chains to automobile owners nationwide with a pamphlet, advising the recipient that if the keys were lost and forwarded to that organization they would be returned to the owner; requesting a contribution be made to the membership corporation; and stating that in any event the recipients could keep the key chains. The fundraising organization there argued that as a nonprofit organization it was not engaged in commerce within the meaning of the Act. However, the Board rejected this argument and found that the operations of the fundrais- ing organization were "characteristic of a highly devel- oped commercial enterprise." Id. at 866. The General Counsel has relatedly argued that a similar fundraising technique exists herein, indeed one urged as even more demonstrably commercial in nature, inasmuch as unlike in the Disabled American Veterans case, supra, in which individuals to whom an unsolicited keytag chain was sent were told they could keep the keytag chain regardless of whether the recipient donated money, Respondent's pnb- lished newsletter here is (regularly) received only after a donation of $15 or more has been first received by OPIC. Thus, the General Counsel essentially has argued that OPIC is shown to be engaged in commercial activi- ties as part of its overall nonprofit work. OPIC argues this publishing activity "does not transform evangelism into a commercial enterprise," with reliance on Murdock v. Pennsylvania, 319 U.S. 105, 111 (1942), in which the Supreme Court related: The right to use the press for expressing one's views is not to be measured by the protection af- forded commercial handbills. It should be remem- bered that the pamphlets of Thomas Paine were not distributed free of charge . . . Freedom of speech, freedom of the press, freedom of religion are avail- able to all, not merely to those who can pay their own way. OPIC has further argued that in light of the distinct identity of political advocacy organizations and the ab- sence of Board assertion of jurisdiction over them specif- ically, Congress' failure to amend the Act specifically to exempt such organizations in the face of the Board's practice of asserting jurisdiction over social service agen- cies and other "public charities" may not be used to infer congrssional (tacit) intent to confer jurisdiction. Catholic Bishop of Chicago, supra, 440 U.S. at 505-506. Indeed, the failure of Congress to consider such "action organiza- tions" explicitly, and the failure of the Board to assert ju. OHIO PUBLIC INTEREST CAMPAIGN 299 risdiction over them previously, both point to the obvi- ous and correct conclusion: such organizations were never even contemplated to be "employers in com- merce" within the meaning of the National Labor Rela- tions Act. Finally, OPIC argues that neither the General Counsel's evidence on OPIC's own emphasis on fundrais- ing techniques, nor connections with sister political ad- vocacy organizations in other states changes the activity engaged in by OPIC from being that of a nonprofit "action organization," which is to be distinguished from a "public charity" as is presently done under applicable provisions of the Internal Revenue Code. Analysis and Final Conclusions OPIC has presented financial and other records, and credited related testimony, which warrants conclusion that OPIC has in origin, and has continued beyond char- ter amendment, to engage in a significant amount of charitable, nonprofit, or "worthy cause" research and public educational outreach work, that is conceded to be nonpolitical activity, and to which not only certain char- itable grants are wholly, but also other (canvass) contri- butions, in part, significantly supportive (albeit the latter in unspecified amount). However, the same records, and the overwhelming weight of credited testimony has es- thblished also convincingly that OPIC was in all material times, and is now predominantly engaged in various forms of political activities, inclusive of legislative, but primarily lobbying activity. It is to this lobbying function that the charitable research and public educational work, though the same exist separately and compatibly, has become now minorily[7] adjunct. It is concluded and found that OPIC is now fundamentally pursuing its amended chartered purposes in various social welfare programs as an IRS tax exempt political action organiza- tion. It would seem to follow therefrom that for purpose of addressment of issue of jurisdictional assertion over OPIC herein, OPIC itself is rightly to be classified, and considered as a political action organization, with organi- zational and individual members in association, as is es- sentially contended by OPIC. However, under the Polish National Alliance case, sUpra, and other court and Board cases considered supra (even assuming without so con- cluding, that OPIC as a nonprofit political action organi- zation is analogous to a nonprofit religious institution in- sofar as First Amendment and related Court and Board I case considerations) the further analytical question would appear to lie, as in the case of religious institutions, when questioned as embarked in commercial ventures with sig- nificant impact on commerce, as to the nature of ques- tioned conduct or enterprise activity, of the given organi- zation, viz, whether the same is established to be of sepa- rably commercial nature in generally accepted sense, with significant impact on commerce such as to affect commerce, or be one otherwise, as "purely religious," or in some manner equivocally noncommercial, e.g., as in being revealed to be in actuality, an extension of, or an- cillary to institutional, organizational, or enterprise oper- ations over which the Board would itself decline to, or under the Act or Supreme Court holdings may not, assert jurisdiction. It is, however, concluded, question of statutory juris- dictional consideration being placeable aside as this case clearly does not present instance of an uncooperating employer, that I need not reach OPIC's seemingly weighty otherwise arguments based on coequal claim of protected first amendment guarantees such as to place its own operations as here questioned, within application of the guiding principals of the holding in Catholic Bishop of Chicago, supra. This is so because on the facts of OPIC's operations such as have been presented in this case, I am otherwise fundamentally not persuaded by the offered evidence of record, nor by the General Counsel's case urgings thereon, that the Board would assert its jurisdic- tion over OPIC under any of the Board's presently estab- lished business standards; nor that it should be recom- mended to the Board that the Board opt to exercise juris- diction over OPIC publication and/or its other oper- ations as they are evidenced to be herein. To begin with, Disabled American Veterans, 112 NLRB 864 (1955), the case solely relied on by the General Counsel to support contention that the Board has hereto- fore (and notably before 1959) asserted jurisdiction over a membership employer that engaged in lobbying, on close analysis, in my view, simply does not do so. Rather that case; is an instance of Board assertion of jurisdiction over a related, but separately incorporated, and Board- determined clear commercial operation. Thus Disabled American Veterans (DAV), itself a membership corpora- tion chartered by Congress in 1932, and headquartered in Ohio, is shown clearly therein to have been the organiza- tion that, inter alia, was charged to seek the advance- ment of the interests of its charges through presentation and advocacy to Congress of new or corrective legisla- tion beneficial to disabled veterans and their dependents. In short DAV was clearly the lobbying membership as- sociation therein. In 1941, to raise funds (beyond its membership dues) for its various purposes, the DAV had initially entered a joint venture with a private business firm, which firm the DAV subsequently bought out some 5 years later. How- ever, that fundraising business operation was thereafter carried on (for DAY) by a separately incorporated Dis- abled American Veterans, Inc. (Idento Tag Operation). Idento Tag, itself located 6 miles from DAV National Headquarters, conducted a separate operation, which is revealed therein to have been substantial, and covered: purchases of almost $2 million from strictly commercial enterprises, about $514,000 of which goods and supplies were shipped to it directly from points without the State of Ohio; on receipt of the components, the fabrication of the tags, and their assembly with other materials for a substantial mailing (over 41 million sets throughout the United States); and the handling of returns, and tabula- tion of receipts (about $4,762,000, of which approximate- ly $4,449,000 was contributed by car owners from out- side the State of Ohio). It was the totality of these Indeto Tag processes that was determined by the Board to be, "characteristic of a highly developed commercial enter- prise." As to one conceivably noncommercial feature as there viewed by the Board, viz, that a recipient was told that there was no obligation to return the tags, the Board 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD concluded, "[Wle deem that factor to be the end product of a carefully planned selling program. We consider Idento Tag's method of distributing the license identifica- tion tags a highly specialized, and successful, sales tech- nique intelligently grounded on the nature of the product offered and the characteristics of the seller." Notably it was not necessary for the Board to determine whether Idento Tag's business activity was there to be deemed a wholesale, or retail distribution. The Board did, howev- er, and significantly so, note that it was not relying on the DAV's own out-of-state sales from its National Headquarters of $94,000 to assert its jurisdiction there. In addition to the Disabled American Veterans case, in my view, thus not being instance of a prior Board asser- tion of jurisdiction over the lobbying membership asso- ciation, not only are the commercial features of Idento Tag operation in that case otherwise distinguishable in their clear and significant impact on commerce, as com- pared with the absence of same in OPIC's operations as shown herein, it seems to me that there is also a discerni- ble difference in product and purpose offering that bears on construction of a commercial sale operation in the former, but not the latter. The license tag key, along with offered service that if keys were lost they would be returned more clearly portrays a product use and serv- ice. In contrast OPIC's subscription publication distribu- tion, particularly with the other uses of the publications evidenced, seems with more ready appearance, and thus distinguishable, as being if not a tool used in direct exten- sion of its chartered purposes, albeit with consumer fi- nancial assistance, then at least, an operation so centrally relating to OPIC's basic functions in both educational and political action purposes, as to be properly deemed in any event, but ancillary to OPIC's political advance- ment of its chartered social welfare programs, in both areas, for the Ohio public consumers. In that regard, OPIC's heavy reliance on its publications throughout its entire operations would confirm and support the same broadly. The nature of OPIC's operations to date as have in detail been presented herein, and viewed overall from origin to date, could not in more markedly convincing manner reveal that OPIC has been engaged at all materi- al times in all its various aspects of identification and re- search of public concern issues, and its pursuit of meth- ods of involvement of citizens in public education and lobbying efforts, and (apart from the questioned subscrip- tions) that OPIC is not engaged in commercial endeav- ors, but involved with issues of public concern; and sig- nificantly so, primarily with and for Ohio public consumers and citizens. In short, the thrust of OPIC's operations to date are shown rather clearly herein to have been other- wise overwhelmingly local and not commercial. It is no- table that even OPIC's lobbying of Ohio national repre- sentatives, and/or, when acting in affiliation with other like organizations, lobbying at a national level, if success- ful on OPIC's issues of concern, will have a pronounced effect locally. It is also notable that the OPIC contributor receives the same subscription, whether the contribution is $15, or more. The fact is that OPIC has made heavier use of its publications, in manners other than in their relation to subscriptions. The fact is also inescapable that in terms of the scope of present operation the gross revenues of OPIC supporting the same are overwhelmingly from canvass contributions; that the number of contributions that are not of subscriptions amount far exceed those that are; and in the canvassing operation single publication distribution, and subscription, are both integral parts. I am convinced from all the above that even singling out OPIC's publication subscriptions do not in the end por- tray a commercial endeavor in retail sales in a generally accepted commercial sense, but the same are rather but integral and direct part in the achievement of OPIC's own educational and political objectives, as OPIC has urged; and finally that they have their most immediate and sustaining, and thus most material effect on con- sumer interests of local citizens of Ohio. To be sure, the gross revenues of OPIC in material times are substantial, over $1 million and apparently to date, growing; and the admitted $36,000 in direct out-of-state purchases would be certainly sufficient to satisfy any statutory jurisdiction, if applicable. But neither similar such gross (commission) revenues, nor mere evidence of statutory jurisdiction have occasioned the Board to assert its jurisdiction, if it has concluded an industry is primarily one local in nature and effect, e.g., cf. Seattle Real Estate Board, 130 NLRB 608, 610-611 (1961). Finally, with regard to the evidence presented of fees charged by OPIC for services rendered to others on this record the related activities have been shown for the most part to appear ancillary to, or directly related again to, OPIC's own objectives. Even if, for the sake of argu- ment, it is to be concluded that certain of the same are arguably now trending to becoming commercial in nature in passing from incomplete actual cost (mere printing cost) and actual cost (printing, staff and over- head), to most recently actual costs—plus (generating some amount of income), the same, in any event, on this record, was not shown to have been appreciable, if exist- ent at all in fiscal year 1982, nor definitive enough in recent development so as to be viewed as having any generally significant bearing on the disposition of the present jurisdictional issue. Apart from the above urged case of Disabled American Veterans, the parties have cited no other Board precedent of an assertion of jurisdiction over a primarily lobbying membership association, or a political action organiza- tion, such as OPIC. Nor has my own research illumined any, though it has brought to light that the Board may have presently before it a case involving some similar issues as considered here.7 It is in the end concluded and found that OPIC is pri- marily a nonprofit political action organization, with or- ganizational and individual members in association, and an organization of a type over which the Board appears 7 The case is Citizens Action Coalition of Indiana, JD-53-85, which issued 28 February 1985. There Administrative Law Judge Claude R. Wolfe, on the facts presented before him in that case, reached many of the same ultimate conclusions that I have reached above on the facts as presented herein. It would notably appear that the employer therein, Citi- zen Action Coalition of Indiana, seemingly is the same organization at which certain canvassers of OPIC have cross-tramed as earlier noted herein. OHIO PUBLIC INTEREST CAMPAIGN 301 not to have heretofore directly asserted jurisdiction. It is concluded that the General Counsel has failed to produce convincing evidence that OPIC, in regard to its newsletters/newspapers publication and distribution ac- tivities, meets the Board's newspaper publishing stand- ard, or any other standard heretofore applicable to pub- lishing industry, as OPIC's engagement in publication and distributions, and particularly through its use of sub- scription award on receipt of contribution of $15 or more, is not convincingly on this record shown to be a commercial endeavor, in a generally accepted sense. For that matter, it would appear, that the Board in previous- ly establishing its jurisdictional standards may not have had in mind their application to a primarily political action organization such as OPIC. In any event, and apart from any statutory jurisdictional consideration, it does not appear that OPIC has engaged in any other commercial endeavor resulting in its being in commerce, or affecting commerce, in any significant impacting way. Rather, it would appear that OPIC herein is engaged in operations that are primarily local, and where otherwise, producing, inter alia, local effect. Finally, it does not appear from evidence presented herein that labor strife at OPIC would affect interstate commerce in any substan- tial manner. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed/. ORDER Accordingly, for all of the above reasons, it is recom- mended the complaint be dismissed in it entirety because the General Counsel has not established Board jurisdic- tion over OPIC under any of the Board's established standards; and because on the basis of the facts and con- clusions reached, it does not appear otherwise that it would effectuate the purposes of the Act for the Board to assert any jurisdiction it may have over any of OPIC's operations as shown. 8 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.