Ross County Community Action Commission, Inc.--Head Start Program

480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ross County Community Action Commission, Inc.- Head Start Program and Ohio Association of Public School Employees of the American Fed- eration of State, County and Municipal Employ- ees, AFL-CIO. Case 9-CA-24141 May 31, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On April 11, 1988, Administrative Law Judge Thomas A. Ricci issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions 'and to adopt the recommended Order' for the following reasons. We agree with the judge's fording that the Re- spondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union as the certified representative of its employees. In reaching our decision, however, we do not fmd it necessary to rely on the judge's discussion of the Respondent's ability to engage in meaningful bar- gaining as that issue was not timely raised. As the result of an original hearing and a remand hearing in Case 9-RC-14925, the Regional Direc- tor for Region 9 of the Board issued a Decision and Direction of Election on July 18, 1986, in which he found that the Respondent met the defi- nition of "employer" under Section 2(2) of the Na- tional Labor Relations Act and that no "city, state or federal officials exercise sufficient control over the Employer's labor relations so as to preclude meaningful negotiations between the Employer and a representative of its employees." No request for review of the July 18 decision was filed. Following an election conducted on October 8, 1986, the Union was certified on October 16, 1986. On February 11, 1987, the Union sent a letter to the executive director of the Ross County Head Start Program requesting bargaining. On February 23, 1987, the Respondent by letter denied the re- quest. On February 27, 1987, the Respondent filed with the Regional Director a Motion to Dismiss Certifi- cation of Petitioner asserting that its situation was analogous to GMN Tri-County Community Action ' We have modified the judge's recommended Order to include the narrow "in any like or related" remedial order language Committee2 and that the Regional Director's dis- missal of the GMN petition required a revocation of the certification in its case. By order dated March 19, 1987, the Regional Director dismissed the Respondent's motion fording that-the Board's discretionary jurisdiction, rather than statutory ju- risdiction, was involved and concluding that [a]lthough the existence of statutory jurisdic- tion may be raised at any time, it is well set- tled that the issue of discretionary jurisdiction must be timely raised. Anchor Tank, Inc., 233 NLRB 295 (1977); Pollack Electric Co., Inc., 214 NLRB 970 (1974); Austin Developmental Center, Inc., 236 NLRB 724 (1978); and NLV Casino Corporation, d/b/a Silver Nugget,' 174 NLRB 42 (1969). On April 3, 1987, the Respondent filed a request for review of the Regional Director's order deny- ing its motion to dismiss. On April 21, 1987, the Union made a second re- quest for bargaining. On April 27, 1987, the Regional Director for Region 9 issued a complaint alleging that the Re- spondent had violated Section 8(a)(5). The Re- spondent filed an answer, admitting in part and de- nying in part the allegations of the complaint. On May 11, 1987, the Board denied the Re- spondent's April 3 request for review, and its re- quest, in the alternative, to reopen the record. On May 21, 1987, the General Counsel filed with the Board a Motion for Summary Judgment. On August 25, 1987, the Board denied the General Counsel's motion and, sua sponte, remanded the case to the Regional Director. The Board directed the Regional Director to take further evidence on the Respondent's "tripartite Board of Directors" to enable the Board to determine whether the Re- spondent was a Section 2(2) political subdivision within the meaning of NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971). As a result of that remand and a hearing, Judge Ricci issued his April 11, 1988 decision, in which he rejected the Respondent's contention that the Federal Government exercises control over its labor relations to the extent that it is unable to engage in meaningful bargaining on behalf of its employees, and found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union. We agree with the conclusion, but do not reach that rationale. 2 Case 9-RC-15033 There the Regional Director found that GMN, a Head Start organization, lacked sufficient control of its labor relations to engage in collective bargaining and declined jurisdiction under Res-Care, Inc., 280 NLRB 670 (1986). 294 NLRB No. 36 ROSS COUNTY COMMUNITY ACTION COMMISSION The Respondent's ability to engage in meaningful bargaining, a question of discretionary jurisdiction, was decided in the Regional Director's Decision and Direction of Election. The Respondent did not request review. The Respondent, thereby, waived any discretionary jurisdiction issue and its attempt to raise it at this late.stage in the proceedings is un- timely. At the hearing the Respondent specifically stipu- lated that it was not a political subdivision of the city of Chillicothe, the county of Ross, or the State of Ohio, and there is no assertion that it is a gov- ernmental agency. I is therefore clear that the Re- spondent is an employer under Section 2(2) of the Act, and subject to the Board's statutory jurisdic- tion. Thus we agree with the judge that the Respond- ent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ross County Community Action Commission, Inc.- Head Start Program, Chillicothe, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 1(b). "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." Jack Baker, Esq., for the General Counsel. James H. McCloskey, Esq. (Clemens, Nelson and Associ- ates, Inc.), of Columbus, Ohio, for the Respondent. Rankin M. Gibson, Esq., of Columbus, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held on 17 November 1987, at Chillicothe, Ohio, on complaint of the General Counsel against Ross County Community Action Commission, Inc.-Head Start Program (the Respondent). The com- plaint issued on 27 April 1987, on a charge filed on 24 March 1987 by Ohio Association of Public School Em- ployees of the American Federation of State, County and Municipal Employees, AFL-CIO (the Union or the Charging Party). The essential allegation of the com- plaint is that the Respondent violated Section 8(a)(5) of the Act by unlawfully refusing to bargain with the Board-certified exclusive representative of its employees. In its answer the Respondent admits all the factual al- legations of the complaint except one. There is no dis- 481 pute, therefore, as to the following facts. After a Board- conducted election in which the Union won a majority, the Union was certified as regular bargaining agent. The Union then asked the Respondent to bargain with it, and the Respondent refused. Its reason for so refusing to deal with the Union concerning the conditions of employment of its employees in the agreed-on appropriate unit is the question that raised the issue to be resolved on the basis of the evidence received in the hearing held on 17 No- vember 1987. It is a contention of the Respondent that the Board does not have, or should not exercise, jurisdiction over the operation of this Respondent because the control which governmental agencies have over its day-to-day operations makes it impossible for it to engage in mean- ingful negotiations with the Union of the employees. The General Counsel and the Charging Party argue to the contrary. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. On the entire record and from my observation of the witnesses, I make the following 1. JURISDICTION The formal papers name Ross County Community Action Commission, Inc. as the Respondent in this case. Actually the real respondent is a subordinate organiza- tion within the larger one called the Head Start Pro- gram. The overall organization, an Ohio corporation, is engaged in the business of providing community services to low-income, handicapped, preschool children and their families in Chillicothe, Ohio. During the 12-month period preceding issuance of the complaint, in the course of its operations, Head Start Program derived gross reve- nues in excess of $250,000. During the same period it purchased and received at that location goods and mate- rials valued in excess of $50,000 from other enterprises located within the State of Ohio, each of which enter- prise had received the same products, goods, and materi- als directly from points outside the State of Ohio. The Head Start Program employs about 20 employees and the operation is conducted under the direct supervi- sion of June Acton, the director of Head Start. She su- pervises the employees, she prepares annual budget re- ports which go to the Federal Government before the funds are appropriated, she makes changes in the wage scales from time to time, etc. Acton was also the sole witness who testified in support of the Respondent's de- fense in this refusal-to-bargain proceeding. Decision here must rest on the principle of law enunci- ated in the Board's decision in Res-Care, Inc., 280 NLRB 70 (1986). The Board there established two tests that must be met before jurisdiction will be asserted over a community action organization that is funded by state or Federal money. The Employer may not be a governmen- tal agency, or a political subdivision of any state, city, or county. The parties here stipulated that this Respondent, and its Head Start Program, is "neither a political subdi- vision of the State of Ohio, the County of Ross, or the city of Chillicothe." With this precise stipulation on the record, there is no need here to detail the extended testi- 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony offered by the General Counsel to prove that one critical fact. It is the second Res-Care test of jurisdiction that is dis- puted here. And that one is: Because the funds support- ing the operation are supplied by governmental agencies of one kind or another, does the immediate management of this Head Start Program have sufficient responsibility to engage in "meaningful" bargaining with the Union about the conditions of employment of the employees it hires? It is this area of litigation in which no two cases can be exactly alike. How much bargaining is "meaning- ful?" What are the really important elements in a man's employment that can be said to decide such a question? Each case must be decided on the pertinent facts that are truly relevant to the bargaining process between union and employer. In the light of the record evidence, I find that this Haed Start Program has sufficient power to engage in such meaningful bargaining. i The Respondent, through its sole witness, Acton, placed into evidence 14 documents, totaling 251 pages of print. Most of them are publications' issued by govern- mental agencies concerning public welfare operations like this Head Start Program, and mostly funded with grant money. With the exception of two of these-men- tioned below-none of them bears any relationship to the question whether this precise Respondent is free to engage in collective-bargaining with the Union. After identifying exactly what these documents are, the wit- ness admitted-clearly and directly-that none of them touch on the question of labor relations. One of the exhibits is an information memorandum issued by the United States Depatment of Health and Human Resources in January 1987. Among the direc- tions is the following statement: Comparability of Wages Sec 653. The secretary shall take such action as may be necessary to assure that persons employed in carrying out programs financed under this sub chapter shall not receive compensation at a rate which is (1) in excess of the average rate of com- pensation paid in the area where the program is car- ried out to a substantial number of the persons pro- viding substantially comparable services, or in excess of the average rate of compensation paid to a substantial number of the persons providing substan- tially comparable services in the area of the person's immediately preceding employment, whichever is higher; or (2) less than the minimum wage rate pre- scribed in Section 6(al) of the Fair Labor Standards Act of 1938. The second part of this statement-that the Fair Labor Standards Act minimum wage must be paid-applies to all employers in this Country, and is certainly no bar to ' In his brief counsel for the Respondent relies heavily on two deci- sions involving other Head Start Programs in cities other than Chilli- cothe These are no more than preliminary findings made by Regional Offices before those proceedings will be brought to the Board for final conclusion Board law or interpretation of this statute is made by the Board itself, and the appellate courts It is not finalized by the diversified opinions of this or that Regional Director collective bargaining. And the first part, which sets a ceiling to wages, is no different from any other economic force which limits an employer's funds to be given to its employees. Between the top and bottom there is much room for "meaningful" bargaining, as Acton also admit- ted as a witness. Another document, dated 1985, also issued to Head Start grantees of Federal funds, contains the following statement: To provide salary and fringe benfit increases to Head Start personnel. Salary increases which move Head Start salaries closer to wages paid for compa- rable work in the community shall be made to the extent funds are available. Grantees should use their own personnel policies, wage scales and wage com- parability studies to access and determine the most equitable and effective way of distributing wage in- creases among staff. Some grantees may need to provide relatively greater increases to certain cate- gories of staff or certain individuals in order to achieve a rational salary scale, or to move closer to wage comparability. Other grantees, whose wage scales and policies already result in the most appro- priate distribution of salaries among staff, may elect to provide an equal percentage increase in salary to all staff. Each grantee is expected to use at least 75 percent of its cost-of-living award for salary and fringe benefit increases. In using these funds we urge grantees to consider providing pay increases, beyond what they would otherwise receive, to teaching staff and home visi- tors who have earned a recognized early childhood credential, such as a CDA, a degree in early child- hood or State required early childhood permit. We also urge grantees to review the fringe benefits they provide employees and consider increasing benefits where they are inadequate. This would apply espe- cially to medical insurance. Although Federal Reg- ulations do not require specific levels of coverage, we expect all grantees to provide adequate protec- tion to their employees in this important area. Funds in this category may also be used to meet any requirements for increased employee contribu- tions to Social Security, workers' compensation and other legally mandated increases in fringe benefits and similar employer costs. When the employer is free to use its "own personnel policies" to determine "wage scale" and to "determine the most equitable and effective way of distributing wage increases among staff," can there be any question but that it is free to engage in absolute-not just meaning- ful-collective bargaining? I think not. Still another information memorandum from the De- partment of Health and Human Resources reads as fol- lows: Grantees and delegates should use their own per- sonnel policies, wage scale and wage comparability studies to access and determine the most equitable and effective way of distributing wage increases ROSS COUNTY COMMUNITY ACTION COMMISSION among staff. Some grantees may need to provide relatively greater increases to certain categories of staff or certain individuals in order to achieve a ra- tional salary scale or to move closer to wage com- parability. Other grantees, whose wage scales and policies already result in the most appropriate distri- bution of salaries on staff, may elect to provide an equal percentage increase in salary to all staff. In using these funds, we urge grantees to consid- er providing pay increases, beyond what they would otherwise receive, to teaching staff and home visitors who have earned a recognized early child- hood credential, such as a CDA, a degree in early or a state required early childhood permit. We also urge grantees to reveiw the fringe benefits they pro- vide employees and consider increasing benefits where they are inadequate. This would apply espe- cially to health insurance. Although Federal regula- tions do not require specific levels of courage, we expect all grantees to provide adequate protection to their employees in this important area . Funds in this category may also be used to meet any require- ments for increased employer contributions to Social Security, Workers' Compensation and other legally mandated increases in fringe benefits and similar employer costs. I do not deem it nesessary to belabor this matter fur- ther. That the above language leaves the immediate em- ployer, receiving Federal grant funds, to use its own dis- cretion as how and where to give raises, or to improve fringe benefits, is as clear as day. And that matters of pay and fringe benefits enjoyed go to the heart of the collective-bargaining process and therefore mean "mean- ingful" bargaining, needs no further comment from me. And finally, that I read the foregoing documents cor- rectly is amply proved by the following testimony of Acton on cross-examination after she had identified each of the Respondent's exhibits, and after she said not one of them have anything to do with labor relations. The following is from her testimony: Q. You do handle the labor relations, do you not? A. Yes, I do. Q. You work with the employees, do you not? A. Yes, I do. Q. You determine what is a reasonable wage in your opinion when you make up your budget, do you not? .. . A. Yes, I do. Q. And you take it up with your policy commit- tee, is that right? A. That's true. Q. And then it goes to the budget that you make up, is that right? A. That's true. Q. And you send that budget to the agency in Chicago. A Yes. Q. And they approve it, is that correct? Within the limits of the money they told you could have? A. That is true. 483 Q. And you make the recommendation, do you not? You tell them what it is that you think that they should approve and why. Is that correct? A. I recommend the charges in the application, yes. Q. And you recommend the wages that be paid to certain people9 A. Yes. Q. You can recommend that Jill be paid more than Elsie or whatever . If you have a good reason for that you can recommend that. A. I can justify it, I suppose. Q. You can justify it, and you are the profession- al? A. Yes. Q. You know more than they do. Is it not a fact that they generally accept your recommendations? Before you answer I am going to ask you, when they did not if they did not. A. Concerning a budget, yes they usually go along with my recommendations. Q. If you had a representative of your employees instead of having just your Policy Council and your Board of Directors, you had another, you had someone who represented your employees, who wanted to discuss with you these wages. Is there any reason why you could not do that? A. I could talk to them, yes. Q. And if the two of you agreed just like you could recommend that to the Policy Council, could you not? A. I could recommend it to them. Q. And you could put it in the budget just like you always do and send it to the Chicago, could you not? A. Yes. Q. And the Chicago has not changed your salary recommendations, have they, in the years you have been there? A. No. At one point the Federal Goverment authorized a 3- 1/2-percent raise in wages. The Respondent relies strongly on this as proving it was outsiders who set the wages, not the named Respondent. Again, from Acton's testimony about the 3-1/2-percent authorization: Q. . . . You were not told this document or any others that 3-1/2 percent had to go to wages, it could go to other places . If your wages were higher than some others you put it into other programs, could you not? A. Yes. I conclude from all this that the Respondent is free to engage in meaningful bargaining with the Union, and that its refusal to recognize the Union as exclusive repre- sentative of its employees was a violation of Section 8(a)(5) of the Act. 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE REMEDY It having been found that the Respondent has violated Section 8(a)(5) and (1) of the Act by unlawfully refusing to bargain with the Union , it must be ordered to cease and desist from such conduct , and to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. The Respondent must also be ordered to cease and desist from in any other manner violating the statue. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section I, above, occurring in connection with the operations of the Respondent described in section I, above have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. CONCLUSIONS OF LAW 1. Ross County Community Action Commission, Inc.-Head Start Program is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Ohio Association of Public School Employees of the American Federation of State , County and Municipal Employees, AFL-CIO is a labor oraganization within the meaning of Section 2(5) of the Act. 3. By refusing to bargain with Ohio Association of Public School Employees of the American Federation of State, County and Municipal Employees, AFL-CIO the Respondent has violated and is violating Section 8(a)(5) and (1) of the Act. 4. The above-described unfair labor pratices affect commerce within -the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Ross County Community Action Commission, Inc.-Head Start Program, Chillicothe, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Ohio Association of Public School Employees of the American Federation of State, County and Municipal Employees, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2 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 wavied for all pur- poses. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody such understand- ing in a signed agreement. The appropriate unit is as fol- lows: All full time and regular part time employees em- ployed in the Employer's Head Start Program at its Ross County, Ohio location, including all teachers, assistant teachers, bus drivers, cooks and janitors, but excluding all office clerical employees and all professional employees, guards and supervisors as defined in the Act. (b) Post at its place of business in Chillicothe, Ohio, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by its author- ized representatives, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by it to ensure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Ohio Association of Public School Employees of the American Federation of State, County and Municipal Employees, AFL-CIO as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit . The bargaining unit is: ROSS COUNTY COMMUNITY ACTION COMMISSION 485 All full time and regular part time employees em- professional employees, guards and supervisors as ployed in the Employer's Head Start Program at its defined in the Act. Ross County, Ohio location, including all teachers, assistant teachers, bus drivers, cooks and janitors, Ross COUNTY COMMUNITY ACTION COM- but excluding all office clerical employees and all MISSION, INC.-HEAD START PROGRAM