Southern Indian Health Council, Inc.

436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Southern Indian Health Council, Inc. and San Diego Medical and Office Employees Independent Union, Petitioner. Case 21-RC-18093 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Roberto G. Chavarry on November 25, 1987. Following the hearing and pursuant to Section 102.67 of the Na- tional Labor Relations Board's Rules and Regula- tions, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Petitioner and the Employer filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. The Board has considered the entire record in this proceeding, including the Petitioner's and the Employer's briefs, and makes the following find- ings. The Employer, a nonprofit California corpora- tion, is a health care clinic operated by a consorti- um of seven Indian tribes. The Petitioner seeks to represent a unit including all professionals and non- professionals excluding managerial , guards, and su- pervisory personnel.' The Employer filed a motion to dismiss the petition on the basis that it is exempt from coverage under the Act as a governmental entity. The Employer provides health services for its members and the Indian community in south San Diego County. It receives funding from the Feder- al Indian Health Service under Public Law 93-638, the Indian Self-Determination Act. It annually pur- chases goods valued in excess of $50,000 directly from outside the State of California and it grosses revenues in excess of $1 million. Membership in the corporation is limited to fed- erally recognized Indian tribes in San Diego County. The governing body of each of the seven member tribes appoints one director and one alter- nate to the board of directors. Directors must be members of a federally recognized tribe in San Diego County. Once appointed, a director can be removed at any time by the tribe that appointed him or her. The board of directors is the governing body of the Employer. It elects a chairman who has gener- al supervision, direction, and control of the busi- ness and affairs of the Employer. The board of di- rectors also hires a program director, who controls day-to-day operations . The current acting program director does not belong to any of the seven member tribes.2 The board of directors' personnel committee has the power to review employment policies and ap- prove the hiring or termination of certain individ- uals. The board of directors, as the policymaking body of the Employer, has adopted certain em- ployment policies concerning hiring, promotions, grievances, discipline, terminations, pay, and bene- fits, which appear in the program administration manual. The grievance procedure makes the board of directors the ultimate arbiter of discipline, termi- nation, and other employment disputes . The board of directors also sets the Employer's salary sched- ule, pursuant to the Federal general schedule. The board of directors has a policy of giving preference in hiring to Indians, and most of the 31 nonprofes- sional employees are Indians. The Employer has all its facilities on the Barona Indian Reservation in San Diego County. The Barona Tribe is one of the members of the consor- tium. The stated purposes of the Employer are to promote and improve Indian health through a com- prehensive health care system provided to mem- bers of consortium tribes and other eligible Indians in its service area, to improve environmental health and sanitation conditions on the reservations, and to provide public health services and education to the reservations and the Indian community. The Employer contends that it is exempt from coverage under the Act because it is controlled by Indian tribes, operates on an Indian reservation, and provides governmental services to tribal mem- bers and the Indian community . The Employer states that the result in this case is controlled by Fort Apache Timber Co., 226 NLRB 503 (1976), in which the Board declined to assert jurisdiction over an enterprise owned and entirely controlled by an Indian tribe. The Petitioner contends that the Employer is not a tribal government entity and thus is under the coverage of the Act. In support of its argument, the Petitioner states that unlike the circumstances in Fort Apache, where employees were on the tribe's payroll and the tribe established all working conditions, here the Employer has a separate pay- 2 The program director, at times in conjunction with the department i The parties stipulated that professionals will be allowed to vote for heads, is responsible for hiring nonprofessional staff, granting overtime inclusion or exclusion in the overall unit, in the event an election is di- and annual leave, evaluating employees, disciplining employees, and ter- rected minatmg clinical support staff. 290 NLRB No. 56 SOUTHERN INDIAN HEALTH COUNCIL roll from the tribes, and working conditions are set by the program director and the department heads, who are not members of the seven consortium tribes. The Petitioner further argues that article 4, section 6.04 of the Employer's bylaws, which sets forth the qualifications for the board of directors, does not state that a board member must be a member of one of the seven consortium tribes, but states only that a board member must be a member of a federally recognized tribe in San Diego County. Thus, the Petitioner contends that it is conceivable that the board of directors could con- sist of individuals who do not have a direct interest in the Employer, and that, therefore, the Employer may not necessarily be controlled by tribal entities. The Petitioner further argues that Devils Lake Sioux Mfg. Corp., 243 NLRB 163 (1979), is control- ling here. In that case, a tribal council owned 51 percent of the employer, a manufacturing corpora- tion, and Brunswick Corporation owned 49 per- cent. The Board concluded that it could assert ju- risdiction over the employer because, even though the tribal council owned a majority of the stock, Brunswick controlled the corporation, especially with regard to labor relations policies ; thus, the corporation was not a wholly owned tribal enter- prise that was completely controlled by the tribal council. We agree with the Employer that the result in this case is controlled by Fort Apache, and that the Employer is exempt from coverage under the Act. In Fort Apache, the employer was wholly owned and completely directed by a tribal council. All the employees were paid by and worked for the tribe, not the employer, and the tribal council completely controlled the employer's operations and labor policies, although contracting out with an individ- ual person for management services to run the company. The employer operated on the tribe's reservation. In the instant case, the only members of the Em- ployer are federally recognized Indian tribes, and the directors of the Employer are directly appoint- ed by, and subject to removal by, the governing bodies of the member tribes. Further, the board of directors sets and controls the labor policies of the 437 Employer, and is the final arbiter of discipline and termination issues. Although the Petitioner con- tends that the Employer's program director and de- partment heads set working conditions, we find that it is the board of directors that establishes and controls significant employment policies . We also note that although the program director controls day-to-day operations, in Fort Apache the tribal council contracted out to a private individual to run the company's daily affairs. Further, although the Petitioner argues that this case differs from Fort Apache in that here the Employer has a separate payroll from the tribes, we do not find this to be a significant difference because the Employer here is still controlled by tribal entities. In response to the Petitioner's argument that arti- cle 4, section 6.04, of the Employer's bylaws does not require that a member of the board of directors be a member of one of the seven consortium tribes, we note that it is the seven consortium tribes that have the power to appoint and to remove the di- rectors and, therefore, we find that the tribal enti- ties have ultimate control over the Employer. Fi- nally, we note that this case is distinguishable from Devils Lake because in that case officials of a pri- vate corporation comprised a majority of the board of directors and controlled the company at issue, especially with regard to labor relations policies, whereas here the Employer's policies are con- trolled by the seven member tribes, who also con- trol the board of directors. In Fort Apache, the Board found that a tribal council is a "government," and thus that an entity administered by individuals directly responsible to a tribal council is exempt from the Act as a "gov- ernmental entity." In the instant case we similarly conclude that the seven-member consortium of tribes, and its enterprise on the reservation that is here asserted to be an employer, are implicitly exempt as governmental entities within the mean- ing of the Act. Fort Apache, 226 NLRB at 506 fn. 22. Accordingly, we grant the Employer's motion and shall dismiss the petition. ORDER The petition is dismissed.