Columbia Park And Recreation Association, Inc.

COLUMBIA PARK ASSN. 123 The Columbia Park and Recreation Association, Inc. and Amalgamated Transit Union, Local 1300, Petitioner. Case 5-RC-12886 June 15, 1988 DECISION ON REVIEW, DIRECTION, AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On May 29, 1987, the Regional Director for Region 5 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he asserted jurisdiction over the Employer.' The Em- ployer filed a timely request for review of the Re- gional Director's decision. On July 9, 1987, the Board granted the Employer's request for review. The National Labor Relations Board has delegat- ed' its authority in this proceeding to a three- member panel. The Board has considered the entire record, in- cluding the briefs, and finds, in agreement with the Regional Director, that the Employer is an em- ployer within the meaning of Section 2(2) of the Act2 and that it is appropriate to assert jurisdiction. Accordingly, we affirm the Regional Director's Decision and Direction of Election and shall direct that the ballots cast in the June 26 and 27, 1987 election be opened and counted and,an appropriate certification issued. DIRECTION IT IS DIRECTED that the Regional Director for Region 5 open and count the ballots and thereafter prepare and serve on the parties a tally of ballots and issue an appropriate certification. ORDER It is ordered that this proceeding is remanded to the Regional Director for Region 5 for further pro- ceedings. An election was conducted June 26 and 27, 1987, and the ballots were impounded. 2 The pertinent part of the Regional Director 's Decision and Direction of Election (the text of fn. 3) is attached as an appendix . In agreeing with the Regional Director that the Employer is not a political subdivision, we note particularly that the composition of the Employer 's nine-member board is established by its "Amended and Restated Charter," not by law. Therefore, to the extent that the members may be accountable to the gen- eral electorate of the villages from which they were elected , they are ac- countable by choice rather than law. Accordingly, the Employer does not qualify as a political subdivision . See Jefferson County Community Center v. NLRB, 732 F.2d 122, 125 In. 3 (10th Cir. 1984); Crestline Memo- rial Hospital Assn. Y. NLRB, 668 F.2d 243, 245 (6th Cir. 1982). We note that the Board 's decision in Imperial House Condominium, 279 NLRB 1225 (1986), which reaffirmed the policy of asserting jurisdiction over residential condominiums and cooperatives , was enforced recently by the United States Court of Appeals for the Eleventh Circuit, NLRB v. Imperial House Condominium, 831 F.2d 999 (1987). MEMBER JOHANSEN, dissenting. Contrary to my colleagues, I would decline to assert jurisdiction. In my view, this case is covered by my dissenting position in Imperial House Condo- minium , 279 NLRB 1225 (1986). Here, as there, property owners collectively pay an assessment to the Employer which funds the recreational oppor- tunities and community services provided by the Employer. When individual homeowners pool their resources in order to secure these types of services for themselves, in my view, this is not the type of enterprise to which the Board should attach juris- diction. APPENDIX The parties stipulated that the Columbia Park and Recreation Association, Inc. is a non-profit Maryland corporation with annual gross revenues in excess of $1,000,000 and that in the past 12 months the Association has purchased and received goods and services in excess of $50,000 directly from points outside the State of Maryland. The parties also stipulated that the Associa- tion operates a transit system (also known as ColumBus) that annually generates approximately $125,000 in fares and receives approximately $300,000 in state and federal grants. Petitioner seeks to represent all full-time and reg- ular part-time drivers and mechanics. The petitioned-for unit comprises approximately 16 employees. There is no dispute concerning unit issues, as set forth below. The sole issue in this matter arises out of the Associa- tion's claim that it is exempt from the Board's jurisdic- tion as a "political subdivision" within the meaning of Section 2(2). Petitioner argues that the Association is an employer within the meaning of Section 2(2). The parties agree that the Association's status under Section 2(2) is to be resolved by applying the Supreme Court's decision in NLRB v. The Natural Gas Utility Dis- trict of Hawkins County, Tennessee, 402 U.S. 600 (1971), which affirmed the Board's determination that an em- ploying entity is a political subdivision within the mean- ing of Section 2(2) if such entity is: 1) created directly by the state so as to constitute a department or administra- tive arm of the government; or 2) administered by indi- viduals who are responsible to public officials or to the general electorate. See, e.g., Detroit Institute of Art, 271 NLRB 285 (1984). Applying these standards, I make the following findings. Columbia is a planned community located in Howard County, Maryland that was created in the 1960's by Howard Research and Development Corporation. It is not an incorporated city. The Association is the govern- ing body of Columbia and was incorporated in 1965. In 1966, a Deed, Agreement and Declaration of Covenants, Easements, Charges and Liens (Declaration of Cov- enants) was filed in Howard County covering Columbia and its lands. The Declaration of Covenants, inter alia, created easements, and use requirements, and various property encumbrances. It also established an assessment that is payable to the Association. The assessment is based on the assessed value of property in Columbia as 289 NLRB No. 19 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD determined by the Howard County property tax assess- ment of such property. The assessment has priority over mortgages, is normally paid by assesses as part of their mortgage, is not deductible from Federal taxes , and does not serve as a credit or offset to property owners' Howard County taxes . This assessment is the primary revenue source for the Association . While the Associa- tion can impose special assessments, it has never done so. The Association has no tax imposition authority. Nor does it exercise any sovereign powers such as eminent domain. The Association is controlled by the Columbia Council (hereinafter the Council). The Council is composed of nine members, one from each "village" in Columbia. Council members are elected annually. Eight of the nine villages vote based upon a single vote being accorded each property interest. One village allows each resident of the village to vote . Thus, only property interest hold- ers (in eight villages) or residents (in one village) are en- titled to vote. Council members are subject to recall. Council members are not state or local officials and Co- lumbia residents are not represented separately in the Howard County Council. Based on the foregoing , it does not appear that the As- sociation was created directly by the state so as to con- stitute a department or administrative arm of the govern- ment. Minneapolis Society of Fine Arts, 194 NLRB 371 (1971). Rather, it was created by private individuals to serve, in essence, as a homeowner's association for the purpose of providing services to Columbia land owners and residents. Indeed, it does not appear that the Employer argues otherwise. Thus, in seeking to meet the first prong of the Hawkins criteria, the Employer does not claim that the state created the Association , but rather, it presented evi- dence at the hearing and argues in its brief that the Asso- ciation is "for all intents and purposes , the local govern- ment of Columbia." The Employer presented evidence of the vast array of services that the Association pro- vides, ranging from parks and recreation facilities to child care and public transportation. In essence, the Em- ployer argues that the Association is the functional equivalent of a city government. Under current Board law, however, the Employer's contentions in this regard do not advance its claim of po- litical subdivision status . Rather, its evidence and argu- ments amount to an attempt to apply the "intimate con- nection" test whereby an employing entity that performs functions that are intimately related to the traditional functions of an exempt government entity is excluded from the Act's coverage. See, e.g., Rural Fire Protection Co., 216 NLRB 584 (1975). That standard, however, was rejected by the Board in National Transportation Service, 240 NLRB 565 (1979), and again in Res-Care, Inc., 280 NLRB 670 (1986). Thus, regardless of how similar the Association's functions might be to those of a "typical" city government, those similarities alone do not provide a basis for excluding the Association from the Act's cov- erage. Moreover, even if the Employer's evidence con- cerning the Association's purported functional equiva- lence to a city government was aimed at an attempt to apply the Res-Care standard, the Employer conceded at the hearing that the Association retains , with regard to the petitioned-for employees, the ultimate authority to hire, fire, train, supervise, evaluate, discipline and handle employee grievances and in addition has control over wages and benefits. Accordingly, absent a right of con- trol being exercised by an exempt entity , the degree of similarity between the Association and a city govern- ment is irrelevant. Res-Care, supra at 672. In addition, the evidence presented reveals that the Association is more aptly analogous to a homeowners' or condominium association, which are entities that the Board has recently reaffirmed fall within the Act's juris- diction. Imperial House Condominium , 279 NLRB 1225 (1986). Granted, the Association here provides many more services than does the typical condominium asso- ciation. That difference, however, appears to arise out of the Association's unique opportunity to command signifi- cant assets rather than out of any municipal or govern- mental status. Regarding the second prong of the Hawkins test, the Employer argues that its Council is responsible to public officials and the general electorate . As noted, while the Council is elected and subject to recall , the Council is not responsible to the general electorate. Rather, it is only Columbia property interest holders or, in one of nine vil- lages, residents to whom the Council is responsible. Concerning the Council's responsibility to public offi- cials, the record shows that the Council is responsible to various county, state and federal officials by virtue of the Association's dependence upon public funding through various grants, the requirements imposed by those grants, and various licensing requirements imposed by govern- ment. Such "dependence" and grant administration over- sight, however, do not establish that the Council mem- bers are responsible to public officials . Cf. D. T. Watson Home for Crippled Children, 242 NLRB 1368, 1370 (1979) cited with approval in Res-Care, supra at 674 fn. 22. Indeed, under the Employer's argument, any business entity that received state or federal grants, or was sub- ject to state or federal regulation would be "responsible to public officials" under Hawkins. In sum, the record fails to support a finding that the Employer is a "political subdivision " within the meaning of Section 2(2). See cases cited by Petitioner: Truman Medical Center, 239 NLRB 1067 (1978), 247 NLRB 396 (1980), enfd . 641 F.2d 570, 574 (8th Cir. 1981); Minneapo- lis Society of Fine Arts, supra. Accordingly, I find that the Association is an employer within the meaning of Sec- tion 2(2) of the Act, and that it is appropriate for the Board to assert jurisdiction herein. Of the cases cited by the Employer, I note that MTL Inc., 223 NLRB 1071 (1976) and Transit Systems, Inc., 221 NLRB 299 (1975), both were decided under the standard set forth in Rural Fire Protection, supra. Since National Transportation , supra, this standard is no longer viable, and those cases cannot control this one . The em- ployers in The City Public Service Board of San Antonio, 197 NLRB 312 (1972), and the Pennsylvania State Asso- ciation of Boroughs, 267 NLRB 71 (1983), both were found to meet the second part of the Hawkins test. The Employer here, as discussed above , does not, in the opin- ion of the undersigned , meet that test.