Hispanic Federation For Social And Economic Development

500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hispanic Federation for Social and Economic Devel- opment and District Council 47, American Fed- eration of State, County and Municipal Employ- ees, AFL-CIO, Petitioner. Case 4-RC-15494 26 June 1987 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 19 December 1983 the Regional Director for Region 4 issued a Decision and Direction of Elec- tion in this proceeding, asserting jurisdiction over the Employer, Hispanic Federation for Social and Economic Development, on the basis that the Em- ployer's gross annual revenues exceeded $100,000. The Regional Director found this figure to be the applicable discretionary amount for assertion of ju- risdiction over employers that provide social serv- ices such as family counseling. In asserting jurisdic- tion, the Regional Director also found that: (1) part of the Employer's revenues, originating from the Department of Housing and Urban Development, were sufficient to establish the Board's legal or statutory jurisdiction over the Employer; (2) there was no evidence that any of the governmental enti- ties that provided funds to the Employer exercised any control over the Employer's labor relations policies; and (3) the Employer's status as a charita- ble organization did not affect the Board's assertion of jurisdiction over it. Thereafter, in accordance with Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, the Employer filed a timely request for review of the Regional Director's decision, contending that the Regional Director erred in asserting jurisdiction. The Board granted the Employer's request for review with respect to the appropriate discretion- ary jurisdictional standard and denied the request for review in all other respects.1 The Employer is a nonprofit corporation that exists for the purpose of improving the social and economic conditions of the Hispanic community in the Philadelphia area. The Employer operates two programs. Under its human services program, called Services to Children in Their Own Homes (SCOH), the Employer's social workers interview people, both at their homes and at the Employer's office. The social workers identify the needs of the families, then take them to appropriate agencies within the city to help them with emergencies and short-term or long-term problems, such as child abuse, sexual abuse, and psychological or economic Chairman Dotson, dissenting in part, would have granted the Em- ployer's request for review in all respects. problems. Under its other program, a housing pro- gram, the Employer provides technical support services related to the provision of housing. The Employer acts in a consultative role, serving as an advisor to community groups that wish to become involved in improving housing conditions in any manner. It was stipulated that the Employer em- ploys eight employees, four of whom are profes- sionals and four of whom are nonprofessionals. During its fiscal year ending 10 June 1983, the Em- ployer received revenues totaling $222,463. In finding that the Employer met the Board's discretionary jurisdictional standard, the Regional Director relied on Child & Family Service of Spring- field, 220 NLRB 37 (1975), and Catholic Social Services, 225 NLRB 288 (1976). We find these cases inapposite. In Child & Family Service, of Springfield, the employer provided a variety of social services, including homemaker services. The homemaker services consisted of home care for children, fami- lies, and older citizens. The services were neces- sary to maintain the individuals in their own com- munity and prevent institutionalization. Homemak- ers performed duties such as child care, light housekeeping, meal preparation, shopping, light laundry, and minimal personal care. They also gave emotional support and encouragement to family members. The Board found the employer's home- maker operations to be similar to those of visiting nurses associations, for which the Board has estab- lished a discretionary jurisdictional standard of $100,000, noting that the homemaker operations were directed almost entirely to providing services for people who had health problems. As the em- ployer had an annual budget of $415,000 to $420,000, approximately 40 percent of which, or about $166,000 to $168,000, was devoted to its homemaker operations, the Board asserted jurisdic- tion under its discretionary standard for visiting nurses association.2 In Catholic Social Services, 225 NLRB 288 (1976), the employer was a social service agency that pro- vided family counseling by social workers who en- gaged in all areas of counseling related to family problems. The Board found that the general nature of services provided by the employer was analo- gous to those provided in Child & Family Service of Springfield. The employer's annual revenues were $412,000. The Board asserted jurisdiction on the basis that the employer's annual revenues were more than $400,000, which exceeded any of the 2 The Board further noted that, although the homemakers administered no medical treatment, it had asserted jurisdiction over and applied a $100,000 annual revenue standard to facilities providing essentially custo- dial and personal care functions, relying on Riverdale Manor Home for Adults, 189 NLRB 176 (1971) 284 NLRB No. 50 HISPANIC FEDERATION FOR SOCIAL DEVELOPMENT 501 analogous discretionary jurisdictional standards. By this statement, the Board presumably was referring to the jurisdictional standards for nursing homes, visiting nurses associations, and related facilities ($100,000); health care institutions other than the foregoing ($250,000); and day care centers ($250,000). We find significant differences between the present case and those on which the Regional Di- rector relied. Unlike the employer in Child & Family Service of Springfield, the Employer here does not provide homemaker services, nor are its services similar to those performed by visiting nurses associations. Although the Employer's serv- ices are similar to many of the services, other than homemaker services, provided by the employer in Child & Family Service of Springfield, it was the homemaker services on which the Board relied in finding the standard for visiting nurses association applicable in that case. Accordingly, we find that the $100,000 standard for nursing homes, visiting nurses associations, and related facilities is not ap- plicable to the Employer. Furthermore, unlike the employer in Catholic Social Services, the Employer's annual revenues of $222,463 cannot be said to exceed any analogous existing discretionary stand- ard. Having determined that the standard for nursing homes, visiting nurses associations, and related fa- cilities is inapplicable and that the Employer's annual revenues do not exceed any analogous dis- cretionary standard, we must determine what juris- dictional standard should apply. In a few previous cases the Board found that certain employers that, in a broad sense, provide social welfare services fall within various specific standards governing dis- cretionary jurisdiction. For example, employers that operate community health clinics or provide drug abuse or alcoholism treatment programs are governed by the $250,000 annual revenues standard for health care institutions as defined in Section 2(14) of the Act other than nursing homes, visiting nurses associations, and related facilities. See Phase, Inc., 263 NLRB 1168, 1171(1982); East Oakland Community Health Alliance, 218 NLRB 1270, 1271 (1975). A separate standard, set at $250,000 annual revenues, governs day care centers and residential educational and treatment facilities for children. See St. Aloysius Home, 224 NLRB 1344 (1976); Salt & Pepper Nursery School, 222 NLRB 1295 (1976). However, although the Board has asserted juris- diction over employers that provide social services which bear some similarity to those provided by the Employer in the present case, it has done so on the basis that the employer in question had gross annual revenues in excess of those required under any analogous jurisdictional standard or, in some cases, in excess of those required under any of the Board's jurisdictional standards. See Saratoga County Economic Council, 249 NLRB 453, 455 (1980); Community Services Planning Council, 243 NLRB 798, 799 (1979); Catholic Social Services, supra, 225 NLRB at 288, 289; Catholic Charities of Buffalo, New York, 220 NLRB 9, 10 (1975); Chil- dren's Aid Society, 218 NLRB 631 (1975). There- fore, there has been no need to establish a specific jurisdictional standard governing such organiza- tions. As the Employer here does not have annual revenues that exceed the amount required under any analogous jurisdictional standard, we find it necessary to establish a jurisdictional standard for social service organizations other than those, such as the ones noted above, for which there exists a standard specifically applicable to the type of activ- ity in which they are engaged, such as health care or day care. We take official notice in this case of statistical data compiled by the Bureau of the Census con- cerning "firms" that provide social services other than child day care services. 3 On consideration of these data and of the jurisdictional standards, noted above, that the Board has established for employers in somewhat analogous fields, we now establish a jurisdictional standard of $250,000 annual revenues for all social service organizations other than those for which there exists a standard specifically appli- cable to the type of activity in which they are en- gaged. The Census Bureau data indicate that, by establishing $250,000 annual revenues as the mini- mum amount for asserting jurisdiction, about 38 percent of the employers in this category 4 and about 88 percent of all employees employed by em- ployers within this category 5 will be subject to the 'For use of statistical data in setting jurisdictional standards, see Salt & Pepper Nursery School, supra, 222 NLRB at 1296; University Nursing Home, 168 NLRB 263, 264 (1967); Floridan Hotel of Tampa, 124 NLRB 261, 265, 275 (1959). The Bureau of the Census conducts a survey of service industries, in- cluding social services, every $ years. The most recent such census was conducted m 1982, and the data compiled from it were published in 1985. The data on which we rely in setting the discretionary jurisdictional standard in this case appear in 1982 Census of Service Industries Establish- ment and Firm Size (Inqluding Legal Form of Organization), SC82-I-1 at 1-166. The data for social service entities are subdivided there into cate- gones labeled "Child Day Care Services" and "Other Social Services." The "Other Social Services" category includes all social service entities other than "Child Day Care Services." The statistics used in this case are derived from the data given for the "Other Social Services" category be- cause, as explained above, the standard established by this decision is for a category of employers that does not include day care centers. The 1982 Census of Service Industries refers to social service organizations as "firms" because it uses commercial terms even in its census of nonprofit activities in order "to maintain as much conformity of measures as practi- cable." Id. at IV. 4 Le., 10,062 employers out of a total of 26,458 employers. I.e., 667,053 employees out of a total of 759,099 employees. 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board's jurisdiction. We find that this standard will result in the assertion of jurisdiction over those em- ployers that exert a significant impact on com- merce and that employ the majority of employees in this field. We further fmd that, in accordance with Section 14(c)(1) of the Act, the effect on com- merce of a labor dispute involving noncovered em- ployers under this standard will not be "sufficiently substantial" to warrant the exercise of the Board's jurisdiction. As noted above, the Employer had gross reve- nues of $222,463 for the relevant 1-year period. The $250,000 annual revenues standard that we now establish is in excess of the Employer's annual revenues. Accordingly, we decline to assert juris- diction over the Employer, and we shall dismiss the petition. ORDER The petition is dismissed. CHAIRMAN DOTSON, concurring. My colleagues here set a discretionary jurisdic- tional amount of $250,000 gross annual revenues for social service organizations not covered by any other Board jurisdictional standard. Although I agree that the petition should be dismissed, I would do so on other grounds and fmd the jurisdictional standard set forth herein inappropriate. In my opinion it does not effectuate the policies of the Act to extend the Board's discretionary ju- risdiction to noncommercial aspects of nonprofit, charitable institutions except in unusual circum- stances. Previously I have stated that I would follow the policy set out in Ming Quong Children's Center' and decline to exercise jurisdiction over nonprofit, charitable institutions except where a particular class of these institutions has a substan- tial, demonstrated impact on interstate comrnerce.2 Such a policy of restraint is sound and, in my judg- ment, necessary to conserve the Board's resources, focus its efforts on substantial labor disputes, and resolve those disputes expeditiously. The Board can perform its statutory function effectively only if it confines its jurisdiction to disputes of conse- quence and refrains from attempting to regulate employers whose activities are but remotely related to industry and trade. There is no showing here that social service or- ganizations, such as the Employer, even if it had gross annual revenues in excess of $250,000, would have substantial impact on commerce. The Em- ployer here counsels and refers families with prob- lems and provides technical and consultative serv- ices related to housing. These activities are essen- tially local in nature and have little relationship to industry. The Federation's operations, even had it generated gross annual revenues in excess of $250,000, would not represent a field of substantial labor tension. Potential disputes would have rela- tively minor consequences for commerce. My col- leagues offer no evidence that this class of social service organizations has any impact on interstate commerce, only that 88 percent of the employees engaged in these activities would be covered by the new standard. I do not agree with my col- leagues' setting of a monetary standard for asser- tion of jurisdiction over these organizations. 1 210 NLRB 899 (1974). See also the dissenting opinions in Salvation Army of Massachusetts, 271 NLRB 195 (1984); Michigan Eye Bank, 265 NLRB 1377 (1982); and m St Aloysius Home, 224 NLRB 1344 (1976), . 2 See my dissenting opinion in Alan Short Center, 267 NLRB 886 (1983).