Hanna Boys Center

1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hanna Boys Center and Social Services Union, Local 535, SEIU, AFL-CIO, Petitioner. Case 20-RC-15178 17 July 1987 DECISION ON REVIEW AND DIRECTION OF ELECTIONS BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 20 February 1981 the Acting Regional Direc- tor for Region 20 of the National Labor Relations Board issued a Decision and Direction of Election in this proceeding, directing separate elections in two voting units of the Employer's employees. 1 In directing the elections, the Acting Regional Direc- tor found, inter alia, that neither the Supreme Court's decision in NLRB v. Catholic Bishop of Chi- cago, 440 U.S. 490 (1979), nor the religion clauses of the first amendment to the U.S. Constitution precluded the Board from asserting jurisdiction in this proceeding because the Employer, in the Acting Regional Director's view, was not a "church operated" school. On 4 March 1981 the Employer filed a request for review of the Acting Regional Director's Deci- sion and Direction of Election. In its request for review, the Employer contended that the Acting Regional Director's application of "church operat- ed" was too narrow as the Court in Catholic Bishop intended to preclude the Board from asserting ju- risdiction over schools with a religious mission. On 12 March 1981 the Petitioner filed an opposition to the request, contending the Employer is not church operated and exists for general charitable purposes. On 24 March 1981 we granted the request for review in order to consider in greater detail the ju- risdictional arguments. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Having considered the entire record in this pro- ceeding, including the parties' briefs, and in light of the Board's recent decision in Jewish Day School of Greater Washington, 283 NLRB 756 (1987), we agree with the Acting Regional Director's result but not his rationale and find that the Board has ju- 1 The parties stipulated that the following units were appropriate: Unit A: All full-time and regular part-time child-care workers, recre- ation assistants, cooks, cooks helpers, and maintenance employees in- cluding plumbers, electricians, gardeners, and custodians employed by the Employer at its Sonoma, California location; excluding all other employees, professional employees, priests, nuns, and religious brothers, guards and supervisors as defined in the Act; Unit B. All office clerical employees employed by the Employer at its Sonoma, California location; excluding all other employees, pro- fessional employees, confidential employees, priests, nuns, and reli- gious brothers, guards and supervisors as defined in the Act. risdiction in this proceeding, that a question affect- ing commerce exists concerning the representation of certain employees of the Employer within the meaning of Sections 2(6) and (7) and 9(c)(1) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction here. Hanna Boys Center is a nonprofit, charitable in- stitution founded in 1945 by two Roman Catholic priests. As described by the Center's current execu- tive director, Reverend James Pulskamp, the two priests, primarily as a consequence of their work in Catholic charities in the archdiocese, perceived the need for a residential facility for boys whose home environments were considered incompatible with their educational needs. The Center originally was located in Menlo Park, California, on property owned by the Archdiocese of San Francisco. One year later the Center incorporated, on a nonprofit basis, under the name Hanna Center for Boys. Its original articles of incorporation indicate that the Center's purpose was "to provide homes and mental, moral, educational, physical, and spiritual training for minor boys who, because of broken homes, or for any other cause, are in danger of be- coming delinquents." In 1950 the Center moved to its present location, Sonoma, California. The property was purchased by the archdiocese through assessments of the par- ishes within its jurisdiction. In 1962, the archdio- cese was divided into three dioceses with the Center falling within the ecclesiastical jurisdiction of the newly created Diocese of Santa Rosa. In the same year, the articles of incorporation were amended to provide that in the event of corporate liquidation, dissolution, or abandonment, corporate property would be distributed to the Bishop of the Diocese of Santa Rosa. In 1973 this provision was amended again, to provide that on dissolution or winding up of the corporation, its assets would be distributed "to an organization organized and oper- ated exclusively for religious and/or charitable pur- poses which has established its tax-exempt status under Section 501(2)(3) of the Internal Revenue Code . . . ." The 1973 amendment further provid- ed that the assets would be disposed of "in such manner as may be directed by a decree of the Su- perior Court. . . upon petition therefor by the At- torney General of the State of California." The amendment also restated the Center's purpose as follows: To provide for the protection, care and educa- tion of homeless or neglected children; to pro- vide homes for them; to provide, alone or in conjunction with other organizations, for their mental, moral, physical and spiritual training 284 NLRB No. 121 HANNA BOYS CENTER 1081 during their minority and thereafter; and to assist, financially and otherwise, other non- profit tax exempt organizations engaged in similar or related activities. The Employer's current bylaws vest overall con- trol of the Center in a board of directors, member- ship of which is limited to a maximum of 45 males. There is an executive committee of the Board which possesses all the powers and authority of the Board with respect to the Center's management and affairs. The bylaws mandate that the President and Senior Vice President shall be, respectively, the Bishop and Vicar General of the Diocese of Santa Rosa but further provide that neither shall be a voting member of either the Board or any stand- ing committee. The President/Bishop of Santa Rosa appoints the executive director and associate executive director, subject to the approval of the board of directors. Of the members of the board, only the president, senior vice president, executive director and associate executive director are clergy and, as indicated, only the latter two are voting members. The bylaws further provide that the executive director shall serve as chief executive officer of the Center, responsible for the general direction and control of its affairs, subject to the direction of the Board and/or Executive Committee. The current executive director, Reverend Pulskamp, has served in that capacity since 1972. As provided in the bylaws, he was appointed to the position by the Bishop of the Diocese of Santa Rosa. However, there is no requirement in the bylaws, and the record does not disclose as a requirement, that the execntive director be a priest. Reverend Pulskamp testified that the executive director is required to possess a master's degree in social work and that, as far as he knew, simply being a priest was insuffi- cient qualification to hold the position. There is no requirement that the department heads or any other employees of the Center be Roinan Catholic or any other religious denomina- tion and none is appointed or subject to removal by the President/Bishop of Santa Rosa. Reverend Pniskamp testified that the Center's personnel rules ano: policies, including wage rates and various con- ditions of employment, are established by the per- sonnel committee, subject to the approval of the Excutive Committee and that they are not subject to approval or veto by the bishop of the diocese. The Center is licensed by the State of California as a group home for boys. The Center furnishes an affidavit to the Sonoma County Superintendent which gives the Center "official permission to op- erate as a private school." The Center appears in the State's central listing of California private schools. It is also listed in the Kennedy Directory, an official Catholic church listing of all institutions affiliated with it. The Center also has an exemption from Federal income taxes as the Internal Revenue Service considers the Center to be under the super- vision of the diocese. Enrollment in the Center's program is limited to young men between the ages of 9 and 15. There is no requirement that they be Roman Catholic or any other religious denomination, nor that they be residents of the geographic area encompassed by the Diocese of Santa Rosa. At the time of the hear- ing there were 64 boys at the Center, all admitted through private, voluntary enrollments in which not only the parents or guardian but the would-be entrant also must concur. The Center is eligible to receive public placements, although none has oc- curred in the recent past. Tuition is paid by parents or guardians on an ability-to-pay basis. Reverend Pulskamp testified that he did not know how many of the current enrollees had tuition paid on their behalf, but that there was no tuition paid in the case of some and the highest tuition currently paid was $300 per month for one enrollee. The Center also receives some Federal funding under Title I, but by far the main source of funding is the result of the semiannual mail solicitations of the public-at- large. At the hearing, the parties stipulated that, in the Center's fiscal year ending 30 June 1980, it re- ceived gross revenues in the form of contributions in excess of $1 million.2 Reverend Pulskamp testified that the basic en- rollment criteria are the age of the young man, his willingness to enroll, and whether the Center has a program for him. Initially, the committee reviews various material furnished by the parents or guardi- an in an effort to determine whether the Center has a program to fill the needs of the family. A free placement at the Center is set up, at which time interviews with the parents and young man are held and standardized psychological tests are given. The committee reviews the findings it has made based on the information, interviews, and tests, and the young man, if admitted, is assigned a caseworker/therapist by Reverend Pulskamp. The therapist is responsible, subject to Reverend Puls- kamp's direction and supervision, for drawing up an individual treatment program. In determining the proper program for the young man, Reverend 2 The precise stipulation is: "Hanna Boys Center, a California non- profit, charitable corporation, doing business in Sonoma, California, re- ceived, during the past fiscal year, ending 30 June 1980, gross revenues in the form of contributions in excess of one million dollars; which contribu- tions were available for operating expenses. During the same period, the Employer received revenues in excess of two thousand dollars from points directly outside the State of California" 1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pulskamp testified that he applies standard social work and psychological techniques. There is no di- ocesan control over, or input concerning, the par- ticular program formulated. The input provided by Reverend Pulskamp and the school psychologist derives not from their relationship with the diocese but rather from their specialized training as a social worker and psychologist. The young man's school records are evaluated and, based on that evalua- tion, the young man is placed in the class which "can best accommodate his educational needs for the impairment that he has suffered in his educa- tional program." The Center's principal, Mr. McIn- nis, further testified that the function of the educa- tional program "is to contribute to the therapy that's being provided," therapy which, Reverend Pulskamp elaborated, encompasses not only educa- tional problems but emotional, psychological, social, and recreational problems as well. The young men reside at the Center year round, with the exception of brief holiday periods and oc- casional visits to their homes. Reverend Pulskamp described a typical weekday at the Center as one in which the young men, who reside in cottages, awake around 6:30 a.m. and, after some brief housekeeping chores, are led in groups by child- care workers to the Center's chapel for morning prayers, and then to breakfast. From 9 a.m. to 3 p.m., they attend classes. Classroom instruction may be interrupted for required therapy sessions, the timing of which is set by the caseworker/therapist. Each young man is required to attend at least one therapy session a week. About 50 percent of the parents also attend therapy sessions about once or twice a month depending on how far they have to travel to the Center or other convenience considerations. There are prayers at the beginning and end of class, as well as grace before and after all meals. After classes, the young men return to the cottages, change clothes, and have time for recreation or homework prior to dinner at 5:30 p.m. After dinner, there are physical education classes for some young men; those appar- ently not scheduled for such classes simply stay in the cottage area. There are fixed study and shower periods, with evening prayers just before lights out at 10 p.m. Classroom instruction ranges from grades 5 through 10, and typically consists of seven periods, six covering standard subjects such as mathematics, history, spelling, etc., with the seventh a mandato- ry, 45-minute "moral guidance" class, taught by three of the five nuns on the Center's faculty. In describing the "basic thrust" of the class, Reverend Pulskamp testified that it was principally devoted to "salvation history," using the Old and New Tes- taments as sources, and Catholic tradition and teachings on various aspects of theology. He testi- fied that the young men would also get exposed to basic tenets of other religions, and along with that . . . certain values that are being conveyed—again, not only in their religion class, but in other classes too, there are values that are being conveyed, which, hopefully, the child absorbs, makes his own. Subsequently, in response to a question whether the course could be said to be the teaching of ethi- cal norms, Reverend Pulskamp responded that that was part of it but not the main thrust: "Ethical norms are taught but also just what we would call basic beliefs are taught also." When asked whether those beliefs encompassed those of religions other than Catholicism, he replied: "That is brought in, I believe, in one course. The principal [McInnis] is probably better equipped to deal with those ques- tions than myself." When asked whether a cate- chism was part of the class, Reverend Pulskamp in- dicated that he doubted very much that it was "but, again, that's a question that should be direct- ed to our principal." Mr. Mclimis thereafter testi- fied that the reason the class was called "moral guidance" was "so that the principles are given on a general basis of the boys learning right and wrong and moral responsibility." In addition to the moral guidance class and the morning and evening prayer sessions, all entrants are required to attend Mass on Sundays and holy days. The Center also provides voluntary liturgical functions such as a daily Mass, sacraments, and rosary devotions. Finally, entrants are required to attend classroom instruction year round. Summer classes, however, are given on a curtailed basis and there is no moral guidance class given. Entrants receive regular report cards and, on completing the eighth grade, are given a diploma. On completing the tenth, the Center provides an unofficial certificate of comple- tion and will certify a transcript if the entrant seeks transfer to a high school. The Employer contends that the Board is pre- cluded from exercising its jurisdiction by the Su- preme Court's decision in NLRB V. Catholic Bishop of Chicago, 440 U.S. 490 (1979). The Petitioner contends that Catholic Bishop is not controlling. For the reasons set forth below, we agree with Pe- titioner. In the recent decision in Jewish - Day School, supra, the Board declined to exercise jurisdiction over a unit of teachers in a school because the ma- jority concluded that "Catholic Bishop precludes the Board from exercising jurisdiction where a HANNA BOYS CENTER 1083 union seeks to represent a unit of teachers in a school whose purpose and function in substantial part are to propagate a religious faith." (Footnotes omitted, emphasis added.) Based on the Board's reading of Catholic Bishop, a threshold issue concerning the Supreme Court was the First Amendment issue of freedom of reli- gion and the potential impact of the Board's proc- esses on the relationship between school and teach- er. As noted in Catholic Bishop, teachers have a "critical and unique role" in fulfilling the mission of a church-operated school and it is that unique role that must be examined to determine whether jurisdiction may be asserted. In the present case, the two voting units encompass clerical employees, recreation assistants, cooks, their helpers, and child-care workers. With the exception of child- care workers, the record is silent with respect to how these employees are in any way connected to the possible religious mission of the Center. There are no teachers in the units sought. The Employer contends that child-care workers are analogous to teachers but we find that argument to be unpersua- sive. Child-care workers "shepherd" the boys from their cottages to chapel, supervise the boys in their cottages„ and make sure the boys do their house- keeping chores and homework (which may include work from the moral guidance course), see that the boys say their prayers, and select a boy to say the evening prayer. The child-care worker job descrip- tion lists eight basic responsibilities as well as quali- fications for the job. The only reference to the child-care worker's involvement in religious activi- ty is in 1(D) of the listing of responsibilities and states the child-care worker helps the child in his efforts to meet social expectations such as cleanli- ness, eating habits, manners, routines, rules, and procedures. This includes "D. Teaching values: ethical principles, religious observances." The qualifications section contains no reference to reli- gion. There is no indication in the record that the child-care workers are required to, or do in fact, involve themselves in the religious or secular teaching of the entrants. The child-care workers function as someone akin to a "dormitory moni- tor," an authority figure to supervise the entrants when they are not in class. The child-care workers are clearly less involved in the religious inculcation of the entrants than the teachers are. The sensitive first amendment issues surrounding the assertion of jurisdiction over teachers noted by the Court in Catholic Bishop are not involved in the assertion of jurisdiction over the child-care workers and other unit members in the present case. 3 Accordingly, we issue the following Direction of Elections. [Direction of Elections omitted from publica- tion.] CHAIRMAN DOTSON, dissenting. I would decline to assert jurisdiction over the Respondent, a nonprofit, charitable corporation which provides shelter and "mental, moral, educa- tional, physical, and spiritual training for minor boys who, because of broken homes, or for any other cause, are in danger of becoming delin- quents." As I have stated previously, I would return to the policy of Ming Quong Children's Center, 210 NLRB 899 (1974), and decline to assert jurisdiction over nonprofit, charitable institutions unless it has been demonstrated that such institu- tions have a substantial impact on interstate com- merce. See my dissenting opinions in Salvation Army of Massachusetts, 271 NLRB 195 (1984), and Alan Short Center, 267 NLRB 866 (1983). As no such showing has been made here, I would not ex- ercise jurisdiction over the Respondent. In light of this position, I do not pass on my colleagues' find- ing that the Supreme Court's decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), is inapplicable to the present case. 'In view of our determination that the voting units do not encompass teachers and that jurisdiction may properly be asserted, we find it unnec- essary to determine whether Hanna Boys Center is a "school" and whether its "purpose and function in substantial part are to propagate a religious faith." (Jewish Day School, supra). Member Johansen, who dissented from the Board's failure to assert ju- risdiction in Jewish Day School, joms here in assertmg jurisdiction over this Employer.