Economic Security Corp. Of Southwest Area

562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Economic Security Corporation of Southwest Area and Allied Industrial Workers of America, AFL-C10, Petitioner. Case 17-RC-9684 August 24, 1990 DECISION ON REVIEW AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT On October 8, 1986, the Regional Director for Region 17 issued a Supplemental Decision and Order in the above-entitled proceeding in which he asserted jurisdiction over the Employer In accord- ance with Section 102 67 of the Board's Rules and Regulations, the Employer filed a timely request for review of the Regional Director's decision By telegraphic order dated July 17, 1987, the Board granted the Employer's request for review 1 The Board has considered the entire record, in- cluding the briefs, and makes the following find- ings The facts are undisputed The Employer is incor- porated in the State of Missouri as a not-for-profit "commumty action agency" serving a four-county area 2 Its Articles of Incorporation grant it all powers a Missoun not-for-profit corporation can exercise "relating to anti-poverty organizations, or for the public welfare "Accordingly, the Employ- er receives Federal and state funds through various grants and contracts to administer such programs as Community Development, Employment and Training, Family Planning, Head Start, and the Home Weathenzation Energy Assistance Pro- gram 3 Federal4 and state5 laws require that the Em- ployer have a board of directors, and that (A) one-third of the members of the board are elected public officials, currently holding office, or their representatives, except that if 1 The election was held March 21, 1985, and the ballots Impounded On June 30, 1986, the Board remanded the case for further consideration in light of Res-Care, Inc , 280 NLRB 670 (1986), and Long Stretch Youth Home, 280 NLRB 678 (1986) The Regional Director, on October 8, 1986, issued a Supplemental Decision and Order asserting jurisdiction and further ordenng that the impounded ballots be opened and counted, and that a tally of ballots Issue On October 20, 1986, the Employer requested review on all issues 2 The four counties served by the Employer are Barton, Jasper, Newton, and McDonald The Employer was Incorporated in October 1965 by three individuals under the Missoun "General Not For Profit Corporation Act" On October 6, 1965, the State of Missoun issued its Certificate of Incorporation 'The Employer's operations are organized into five departments em- ployment and training, community development, family planning, head start, and energy While each department has its own director, the Em- ployer's executive director exercises general oversight over operations 4 Community Services Block Grant Act, 42 U S C § 9901, § 9904(c)(3) (August 13, 1981) 5 Community Action Agencies, Senate Bill No 564, An Act Relating to Community Action Agencies (1984) the number of elected officials reasonably available and willing to serve is less than one- third of the membership of the board, member- ship on the board of appointive public officials may be counted in meeting such one-third re- quirement, (B) at least one-third of the members are persons chosen in accordance with democratic selection procedures adequate to assure that they are representative of the poor in the area served, and (C) the remainder of the members are offi- cials or members of business, industry, labor, religious, welfare, education, or other major groups and interests in the community [Em- phasis added J6 The Employer has incorporated these requirements into its bylaws Section 2(2) of the National Labor Relations Act provides that the term "employer" shall not in- clude "any State or political subdivision there- of "7 To date, the Board has limited the "po- litical subdivision" exemption to entities "that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate" Hawkins County, supra at 604- 605 8 The Regional Director found, and we agree, that the first part of the Hawkins County test was not satisfied It is undisputed that the Employer was not created directly by any government entity No special legislative act or public official was re- quired to create it Rather, the Employer was in- corporated by three private individuals under State of Missouri law as a not-for-profit corporation See Truman Medical Center v NLRB, 641 F 2d 570, 572 (8th Cir 1981) (medical center organized under 'The quotation is from the Federal statute See fn 4, supra The state statute contains a virtually identical provision 7 The "political subdivision" exemption has its basis in Tenth Amend- ment considerations of state sovereignty and the Eleventh Amendment grant of judicial immunity to the States Cresthne Memorial Hospital Assn v NLRB, 668 F 2d 243, 245 fn 1 (6th Or 1982) While the term "politi- cal subdivision" is not defined in the Act, the Supreme Court in NLRB v Atkins d1 Co. 331 U S 398, 441 (1947), stated that in interpreting Sec 2 definitions, "the responsibility of representing the public interest and of reaching a judgment after giving due weight to all the relevant factors lay[s] primarily with the Board" See also NLRB v Natural Gas Utility District of Hawkins County (Hawkins County), 402 U S 600, 605 (1971) ("The Board's construction of the [political subdivision exemption] is, of course, entitled to great respect ") 8 The Board and courts have also examined other evidence in deter- mining whether an entity is a political subdivision See Hawkins County, supra at 608 See also Truman Medical Center v NLRB, 641 F 2d 570, 572-573 fn 2 (8th Or 1981), and Cape Girardeau Care Center, 278 NLRB 1018, 1019 fn 5 (1986) Evidence pertaining to power of eminent domain, power to levy taxes, public meetings, etc, provides additional support for finding an entity to be a political subdivision, however, such evidence is not crucial to the determination See Woodbury County Com- munity Action Agency, 299 NLRB No 65, slip op at fn 5 (1990) 299 NLRB No 68 ECONOMIC SECURITY CORP 563 Missouri not-for-profit statute not created directly by the State so as to constitute a department or ad- ministrative arm of the government) The second part of Hawkins County requires that the entity be "administered by individuals who are responsible to public officials or to the general electorate" The Regional Director found that 8 of the Employer's 24-member board of directors9 are elected public officials, but that "a majority of the board is neither appointed by nor subject to remov- al by public officials or the general electorate or has no official connection with to [sic] any govern- mental body "" The Regional Director did not discuss the significance of the one-third "represent- ative of the poor" members on the board of direc- tors, but merely concluded the Employer had not satisfied this portion of the Hawkins County test, citing Jefferson County Community Center, supra The Employer, on the other hand, argues that its tripartite board of director structure means that it is administered by individuals responsible to public officials and the general electorate We agree In Jefferson County Community Center, supra at 125, the Tenth Circuit Court of Appeals applied the second branch of the Hawkins County test to a nonprofit Colorado corporation providing a variety of educational and vocational services for the men- tally retarded and seriously handicapped Manage- ment of the agency was vested in a 15-member board of directors and, in finding that the board was not "administered by individuals responsible to public officials or the general electorate," the court found that the board's composition was established "not by statute but by the bylaws of the corpora- tion" Id at fn 3 The court concluded, therefore, that to the extent the board was accountable to public officials, they were accountable "by choice 9 The Employer in its March 6, 1985 brief states that there are 22 cur- rent members of the board of directors, of which 8 are public officials or their appointed representatives The Employer in its October 18, 1986 bnef, however, states there are 19 current members of the board of direc- tors, of which 7 are public officials or their appointed representatives ''' The phrase in Hawkins County that to constitute a political subdivi- sion the entity must be "administered by" individuals responsible to public officials or to the general electorate has been interpreted as requir- ing majority control of the entity See Jefferson County Community Center v NLRB, 732 F 2d 122, 126 (10th Or 1984) (although 7 of 15 directors were appointed by public agencies under the entity's bylaws, a "majority of the Board" was neither appointed by nor subject to removal by public officials or the general electorate) Cf Truman Medical Center v NLRB, supra at 573 (medical center not political subdivision where 31 of 49 di- rectors were not appointed by or subject to removal by public officials or general public), Pennsylvania State Assn of Boroughs, 267 NLRB 71, 72 (1983) (nonprofit corporation a political subdivision where It was "gov- erned" by officers and board of directors, all of whom "must be either elected or appointed officials"), Northern Community Mental Health Center, 241 NLRB 323 (1979) (outpatient mental health care entity a po- litical subdivision where 12 of 14 members of board of directors appoint- ed by respective county boards of supervisors) rather than law" and, accordmgly, did not qualify as a political subdivision 1' Here, unlike Jefferson County Community Center, the composition of the Employer's board of direc- tors is established by both Federal and state stat- utes, mcludmg the requirement that one-third of the members be "representative of the poor" and be chosen in accordance with "democratic selec- tion procedures" In our opimon, the Federal and state statutes envision an election by the poor of one-third of the members of the board, and we find that mdividuals so chosen are "responsible" by law "to the general electorate" within the meaning of Hawkins County This opinion is confirmed by the way the Em- ployer has, in fact, applied the requirement that one-third of the board of directors be chosen under democratic selection procedures adequate to assure that they are representatives of the poor in the area served 12 As noted above, the State of Missouri has adopted verbatim the Federal statute's require- ment that "democratic selection procedures" be ap- plied in selecting "representative of the poor" members Likewise, the Employer's revised bylaws require that the Employer's "business and affairs" be managed by a tripartite board of directors, com- posed of not less than 15 or more than 36 members, as follows one-third are "elected public officials, "See also Cresthne Memorial Hospital Assn v NLRB, 668 F 2d at 245 (no political subdivision where board of directors was not "responsible by law to the electorate since the decision to include all citizens as members of the Hospital corporation is entirely the corporation's (den y- mg solely from the corporate constitution) and is subject to change"), Southwest Texas Public Broadcasting Council, 227 NLRB 1560, 1562 (1977) (television station not a political subdivision where the Board, Inter aim found that Is]ignificantly, both the representation of public institutions on the Employer's board of trustees and the number of trustees appointed by such institutions are determined solely by the Employer's own articles of incorporation") is The electorate in this case consists of two groups of voters in the four-county area served The "representative of the poor in the area served" are elected by "low income" individuals in the area served by the Employer See fn 15, Infra The "elected public official" board mem- bers are presumably elected by eligible voters in their respective jurisdic- tions In any event, the Hawkins County phrase "general electorate" clearly covers the four-county area served by the Employer, as that term has been broadly defined to encompass even limited groups of electors See Salt River Project, 231 NLRB 11, 12 (1977) (board of directors elect- ed by property owners within the district), Electrical District Number Two, 224 NLRB 904 (1976) (board of directors elected by "property tax- payers of the proposed district who are qualified electors in the State of Arizona and in the proposed electrical district"), Oxnard Harbor District, 34 NLRB 1285, 1289 (1941) (pre-Hawkins County case, board of harbor commissioners elected by "qualified voters of the distnct") See also Lewiston Orchards Irrigation District v NLRB, 469 F 2d 698 (9th Cir 1972) (per cunam), denying enf 186 NLRB 827, 828 (1970) In Lewiston, the Board had relied on a pre-Hawkins County analysis in finding the em- ployer was not exempt as a political subdivision of the State of Idaho be- cause, inter aim, the board of directors was not elected by "qualified voters of the district," but merely by a "special class of voters, land owners, for the benefit of the particular member landowners " In denying enforcement, the court stated that its examination of Hawkins County led It to conclude that the employer was an exempt political sub- division 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD currently holding office, or their representa- tives"," "at least one-third" are persons chosen in accordance with "democratic selection procedures adequate to assure that they are representative of the poor in the area served", and the remainder are officials or members of "business, industry, labor, religious, welfare, education, or other major groups and interests in the community" Section 2 of the Employer's revised bylaws sets forth the procedure for selecting the "representa- tive of the poor" board members There are annual elections" at which two "low income representa- tives" 15 and two "alternates" are elected from each of the four counties served by the Employer A candidate and alternate may be nominated by the Policy Advisory Council 18 serving the county, if at least 50 percent of the low-income members of a council approve the nominee Interested low- income persons may also file for election with the chairman of the Community Involvement Commit- tee," provided they sign a statement verifying they are a low-income person in compliance with the income guidelines then currently in effect Fi- nally, any group of 35 or more low-income persons may petition the Community Involvement Commit- tee to place a non-low-mcome person's name on the ballot 18 The bylaws further provide "that if the number of elected officials reasonably available and willing to serve is less than one-third of the membership of the board, memberslup on the board by appointive public officials may be counted in meeting such one-third reqturement " ' 4 The determination of individuals to serve on the board is made each February The term of office Is 1 year, and is limited to "five consecutive years or a total of ten years with one year in between" In addition, there is a procedure by which any "community agency or representative groups of the poor may petition for representation" on the board 12 The bylaws state that a candidate is considered "low income" if she meets the Income guidelines "currently in effect at the time of the elec- tion" 16 Art III of the revised bylaws states that Policy Advisory Councils of programs sponsored by or administered by the Employer shall be "in- cluded in the business of [the Employer] in an advisory capacity in the planning of programs, operation of programs, and the evaluation of pro- grams, and further provides for representation by "low Income" persons on the councils, with a minimum of nine members on each council In selecting a nominee, a record of the minutes with the vote at a regular meeting must be maintained 12 The board's Community Involvement Committee conducts the elec- tion The committee consists of representatives of , each of the three groups, who are appointed. by the president of the board for a. 1-year term The committee may also prescnbe any other election procedures as necessary 12 If any "community agency or representative groups of the poor" be- lieves it is Inadequately represented on the board of directors, It may peti- tion the board for representation by several procedures A group can nominate a candidate by obtaining 50 signatures and submitting. its peti- tion to the Board at least 30 days before the election That group is then precluded from the use of any other procedures within 90 days before, and 30 days after, the election Or, any group representing the poor or a community agency can nominate a candidate by obtaining 35 signatures of low-Income persons residing in the area and submit it to the Communi- ty Involvement Committee at least 30 days after, and not later that 90 days before, the annual election The petition must set forth the petition- er's reasons for believing It is Inadequately represented The committee's chairman requests that the matter be placed on the board's agenda at Its next regular meeting, and the petitioner is Invited to present its case on The ballots are then drafted, with all nominees listed on the ballot "under the program that nomi- nated them or that they identify with " 19 The re- vised bylaws further provide that voters must vote for candidates from two different program areas in order for the ballot to be counted 20 On the day of the election, ballot boxes are placed at election sites at the centers and training facilities "controlled or working in cooperation" with the Employer 21 Each voting site is super- vised by a judge selected by the Community In- volvement Committee All ballot boxes are sealed and checked follow- ing the balloting 22 The eight candidates, and alter- nates, receivmg the highest number of votes win, and receive a number signifying their rank 23 This elaborate election procedure ensures that "representative of the poor" board members are chosen "in accordance with democratic selection procedures adequate to assure they are representa- tive of the poor in the area to be served" In effect, this one-third of the board of directors is popularly elected by the clientele the Employer serves When this one-third "representative of the poor" board members is combined with the one-third "public officials or their representatives" members, two- thirds of the board of directors are responsible to public officials or to the general electorate That the board of directors are not subject to re- moval from their positions under the Federal or state statute does not alter our finding that they are responsible to public officials or the general elec- torate 24 Responsibility to public officials or the general electorate has never been interpreted, to re- quire that the board members be subject to remov- al from office by public officials or the general electorate in addition to being placed m office by public officials or the general electorate Indeed, the Board has found an entity to be a political sub- representation A, two-thirds vote of the board is required to sustain a pe- tition and, if successful, the candidate holds office until the next annual election 12 Any persons filing individually will be listed under a category indi- cating this fact 2° Each voter must be at least 14 years or older, and must sign a regis- ter certifying that he is a low-income person in compliance with the Income guidelines displayed at the election site and established by an office of management and budget Si The revised bylaws list the following sites All Senior Citizens Cen- ters and Satellite Centers where permission is granted to do so, Head Start Centers, Work Expenence Sites, Family Planning Clinics, Commu- nity Development Offices, and the Employer's business office 22 If It "appears that the box has been opened," all ballots are voided 22 All ballots are totaled and compared against the number of persons signing the register for that voting place If the number of ballots exceeds the number of registrations, all ballots in that box are voided 24 The Employer's revised bylaws provide that a director shall be re- moved automatically for falling to attend three consecutive board meet- ings The revised bylaws further provide that a director may be removed for cause by a two-thirds vote of the board ECONOMIC SECURITY CORP 565 division in the absence of any evidence concerning removal of the board members Prairie Home Cem- etery, 266 NLRB 678 (1983), Community Health & Home Care, 251 NLRB 509 (1980), Northern Com- munity Mental Health Center, 241 NLRB 323 (1979), and City of Austell Natural Gas System, 186 NLRB 280 (1970) See also University of Vermont, 297 NLRB 291, 295 fn 23 (1989), and Salt River, supra, in which the Board found political subdivi- sions where the record was inconclusive concern- ing removal Although the Sixth Circuit stated in Skills Devel- opment Services v Donovan, 728 F 2d 294, 300 (1984) (a case involving the applicability of the Fair Labor Standards Act to a state contractor providing services for the mentally retarded), that removal is the determinative factor in considering whether administrators are responsible to public of- ficials or the general electorate, the precedent cited in Skills does not support such a strict construction In Hawkins County, supra at 607-608, the Supreme Court, in pointing out that the Board had erred, found that the commissioners were subject to re- moval from office by the governor, state attorney general, county prosecutor, or a group of 10 citi- zens, in accordance with the State's General Ouster Law Notwithstanding this evidence of removal au- thority vested in those particular public officials and the citizenry, the Court concluded that the commissioners were responsible to the public offi- cial who appointed them, a county judge Id at 609 The Eighth Circuit in NLRB v St Louis Com- prehensive Health Center, 633 F 2d 1268, 1270 fn 3 (1980), cert denied 454 U S 819 (1981), held that the board members do not "serve at the pleasure of public officials or the general electorate", however, the court did not elaborate on the meaning of "serve at the pleasure" Even more significantly, neither the court decision nor the underlying Board decision, 244 NLRB 784 (1979), contain any reference to evidence concerning the board's com- position, appointment procedures, or removal pro- cedures In Truman Medical Center v NLRB, 641 F 2d 570, 573 (8th Cr 1981), the court's finding that the majority of board members were "neither appointed by nor subject to removal by public offi- cials or the General electorate" was only one of several factors the court examined in reaching the conclusion that the employer was not administered by individuals responsible to public officials or the general electorate Thus, the cited cases make re- moval a factor, but not the critical factor, which is consistent with Board precedent 25 The Sixth Circuit in Skills also relied on NLRB v Natchez Trace Electric Power Assn, 476 F 2d 1042 (5th Or 1973), which found that the directors, elected by the association's membership, were not responsible to public officials or the general elec- torate In so finding, the court, consistent with the underlying Board decision, 193 NLRB 1098 (1971), apparently determined that the association's mem- bership did not constitute the "general electorate" We give little weight to the discussion of nonre- sponsibility because the determination that the asso- ciation's membership does not constitute the gener- al electorate appears inconsistent with the line of cases clearly holding that limited groups of electors such as the association's membership are encom- passed by the term "general electorate" See fn 12, supra Inasmuch as removal by public officials or the general electorate has never been the critical factor in determining responsibility to public officials or the general electorate, the absence of such removal authority here does not require a different result Accordingly, because a majonty of the board of directors are responsible to public officials or to the general electorate, we find the entity here to be an exempt political subdivision of the State of Mis- souri Accordingly, we do not have jurisdiction over the Employer and will dismiss the petition 26 ORDER The petition is dismissed 25 See Pennsylvania State Assn of Boroughs, supra, in which the fact that the association's directors, who are either elected or appointed bor- ough officials, cannot continue to serve as directors after losing borough office was one of several factors the Board relied on to conclude that the association is administered by individuals who are responsible to public officials or the general electorate We concur in our dissenting colleague's sentiments that fundamental to democracy is the pnnciple that those in political office remain responsible to the electorate Our dissenting colleague, however, accords insufficient weight to the fact that the representatives of the poor in this case are elected and that the election procedure is designed to fulfill the statutory mandates that the representatives of the poor be chosen in accord with democratic selection procedures Because the statute mandates the appli- cation of democratic principles in the selection of the representatives of the poor, we believe our colleague's statement that the bylaws voluntari- ly establish the election process misses the point It is also the statute's mandating democratic principles that compels us to regard as less significant the absence of removal powers than our col- league does Certainly, in the cases on which the dissent relies, removal is an important factor, for in those cases the individual who could be re- moved was appointed, not elected Here, however, where the representa- tives of the poor are, pursuant to the statutory mandate, elected by the general electorate, we do not believe it appropriate to Ignore the bedrock principle of democracy—election—simply because the elected individual (who only serves for I year) is not subject to removal by the general electorate 26 We find It unnecessary to address the other Issues rased in the Em- ployer's request for review 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD MEMBER OVIATT, dissenting For the reasons discussed below, I find that the Employer is not a "political subdivision" within the meaning of Section 2(3) of the Act, and is therefore subject to the Board's jurisdiction The issue here is whether representatives of the poor serving on the Employer's board of directors are "responsible" to the electorate under the Supreme Court's interpretation of Section 2(3) in Hawkins County, supra In accordance with the requirements of Federal and state laws for community action agencies re- ceiving Federal funds, the Employer's board of di- rectors is tripartite One-third are elected public of- ficials currently holding office, or their representa- tives, one-third are members of business, industry, labor, religious, welfare, educational, or other major groups and interests in the community, and one-third are representatives of the poor Neither Federal nor state law, however, specifies the term of office of the representatives of the poor, and nei- ther requires that procedures be established by which the poor may remove their representatives, once those representatives have been elected The Employer's bylaws alone address these matters Under the Employer's bylaws, the representa- tives of the poor are chosen at secret-ballot elec- tions in each of the four counties served by the Employer Each has a 1-year term, renewable for 4 more consecutive years After a" 1-year break, each may serve another 5 consecutive years All direc- tors, including those representmg the poor, may be removed for cause, but only by a two-thirds vote of the board No procedure exists by which poor persons can recall or remove their elected repre- sentatives The board of directors alone can amend the Em- ployer's bylaws This may be done by a two-thirds vote of those board members present and voting2 at any regular board meeting, on 5 days' notice to the directors There is no requirement that the di- rectors' constituents be notified The Employer asserts that it is a political subdi- vision, exempt from the Board's junsdiction under Section 2(3) of the Act The Employer is not cre- ated directly by the State, however If it is to qual- ify as a political subdivision under our Act, there- fore, a majority of the individuals administering the Employer must be "responsible" to public officials 1 A political subdivision must have been created directly by the Feder- al, state, or local government or be administered by individuals who are responsible to public officials or to the general electorate NLRB v Natu- ral Gas Utility District of Hawkins County, 402 US 600, 604-605 (1971) ' A quorum consists of at least 50 percent of the nonvacant seats on the board (12 of the board's present 24 members) or to the general electorate 3 Only one-third of the -Employer's directors are elected public officials One-third are members of major community groups or interests, but these directors are not chosen by public officials or by the general electorate Thus, for the Employer to succeed in its argument, it must demonstrate that the one-third of its directors elected by the poor are "responsible" to the elec- torate The Regional Director found that the Employer had not met its burden The majority reverses, rea- soning that because the composition of the Em- ployer's board of directors conforms to Federal and state funding requirements and because one- third of the board members are "representatives of the poor," a majority of the directors are therefore responsible to public officials or to the general electorate 4 True enough, when the one-third who are public officials is combined with the one-third who represent the poor, there is a majority But, whether this majority "is responsible to" public of- ficials or to the general electorate is an entirely dif- ferent matter The question is whether the election of the poor's representatives by itself is sufficient to make those representatives "responsible" to the poor The Court in Hawkins County, supra, emphasized the importance of whether the persons governing an entity alleged to be a political subdivision are "subject to removal proceedings at the instance" of elected officials or private citizens Hawkins County, supra, 402 U S at 605 The Court took pains to correct the Board's erroneous finding in the case that the Hawkins County commissioners were not subject to removal Id at 607 The Court concluded (402 U S at 608) Plainly, commissioners who are beholden to an elected public official for their appointment, and are subject to removal procedures applica- ble to all public officials, qualify as "individ- uals who are responsible to public officials or to the general electorate" within the Board's test [Emphasis added ] The Supreme Court's analysis has been strictly followed by the courts of appeals and the Board Thus, in Truman Medical Center v NLRB, 641 F 2d 570 (8th Cir 1981), the Eighth Circuit, en- 'I accept for the purposes of this case my colleagues' conclusion that majority control by such persons is enough to show that an entity is "ad- ministered" by individuals responsible to public officials or to the general electorate (see fn 10, supra, and cases cited there) 4 It can be contended that, as the poor are only a part of the general electorate, the poor's choice of representatives to the Employer's board is not the choice of the electorate at large I find much to commend this position See Chairman Stephens' dissent in Woodbury County Community Action Agency, 299 NLRB No 65 (1990) I shall assume for argument's sake, however, that the "poor" are synonymous with the "electorate" ECONOMIC SECURITY CORP 567 forcing a Board order, found that the Center, a mi- nority of whose directors were appointed by or as- sociated with local governmental bodies or the University of Missouri, was not a political subdivi- sion The court stressed that a majority of the Cen- ter's governing directors were "neither appointed by nor subject to removal by public officials or the general public" and that, while the University of Missouri had a theoretical veto power over ap- pointment of the Center's top officials, the Univer- sity did "not possess the power to remove any of the officials once they [had] been appointed" Id at 573 In Skills Development Services v Donovan, 728 F 2d 294, 300 (6th Cir 1984), the court identified the critical point under Hawkins County as "an abil- ity by public officials or the general public to remove an offending administrator" Also see, NLRB v Natchez Trace Electric Power Assn, 476 F 2d 1041, 1045 (5th Or 1973), Cape Girardeau Care Center, 278 NLRB 1018, 1019 (1986) 5 Thus, the case law advances the fundamental principle underlying our representative form of govern- ment—those who manage a political entity must continue to be responsible to those who put them 5 My colleagues in the majority contend that the precedent cited in Skills does not support what they term the Sixth Circuit's "strict con- struction" Among the cases cited by the majority in support of its posi- tion that the Board has found an entity to be a political subdivision in the absence of any evidence of the electorate's authority to remove its board members is City of Austell Natural Gas System, 186 NLRB 280 (1970) That case preceded the Supreme Court's decision in Hawkins County, however, and turned on the fact that the gas system was created directly by the State of Georgia and that the gas system board constituted an ad- ministrative or departmental arm of the City of Austell, Georgia The NLRB never reached the question whether the gas system board was ad- ministered by individuals who were "responsible" to public officials or the general electorate As for Prairie Home Cemetery, 266 NLRB 678 (1983), Community Health & Home Care, 251 NLRB 509 (1980), and Northern Community Mental Health Center, 241 NLRB 323 (1979) also cited by the majonty, the decisions do not reveal whether the Board fo- cused on, or specifically considered, the removal question Thus, the mere fact that removal was not specifically discussed in these Board cases hardly proves that removal authority is not an Important consideration The majority also contends that Hawkins County does not stand for the proposition that the authority to remove is cntical to the analysis of whether the entity's directors are "responsible" to public officials or the general electorate The majonty relies on the fact that in the Court's summary conclusion at the end of its opinion the Court states that the commissioners were "responsible" to an elected county judge (The judge was not the person who could remove the commissioners ) Hawkins County, supra, 402 U S at 609 But the operative language on this Issue occurs earlier in the Court's opinion, where, as I have already observed, the Court gives equal weight to the fact that the commissioners were ap- pointed by an elected official and to the fact that they could be removed under procedures initiated by elected officials or members of the general electorate Id at 608 Thus, the commissioners need not have been sub- ject to removal by the same elected official who appointed them, but, in the Court's view, at the very least they had to be subject to removal at the instance of an elected public official or the general electorate Both the Ninth and Eleventh Circuits have explicitly adopted the Skills approach in Powell v Tucson Air Museum Foundation of Pima, 771 F 2d 1309, 1311-1312 (9th Cir 1985), and in Williams v Eastside Mental Health Center, 669 F 2d 671, 679 (11th Cif ), cert denied 459 US 976 (1982) The Eighth Circuit has also made the ability of public officials to remove board members the focus of Its inquiry into whether the board members are "responsible" to public officials or to the general electorate St Jude Industrial Park Board v NLRB, 760 F 2d 223, 225-226 (8th Cir 1985) in office And, the electorate's check on the misuse or abuse of the power conferred on their elected representatives is through the electorate's right of removal of those representatives during their term of office, however seldom that right may be exer- cised In this case, a director on the board elected by the poor who has abused his office cannot be re- moved or recalled during his term by the people who elected him Only two-thirds of the board of directors itself can remove a director, and this right derives solely from the Employer's bylaws Thus, not only are directors removable by the Employ- er's choice rather than by law, but also, to the extent that the directors are removable, it is only by other board members and not by the electorate That, in my view, is not the kind of removal au- thority contemplated in Hawkins County or its progeny For it makes the colleagues of a director representing the poor (one-third of whom are not elected by anyone and another one-third of whom are not elected by the poor), rather than the direc- tor's constituents, the sole judges of that director's conduct 6 If the public laws governing the election of the representatives of the poor required their annual election, I would be more inclined to find them re- sponsible to their constituents With a 1-year term embedded in the organic statutes, representatives engaging in misconduct could quickly be voted out of office by their constituents While the directors here have a 1-year term of office, that term is es- tablished not by Federal or state statute but by the Employer's bylaws These bylaws can be changed by a two-thirds' vote of those members in attend- ance at a regular board meeting If there is a bare quorum of 12 directors present, as few as 8 can amend the bylaws and presumably can mcrease the directors' term of office and abolish any removal procedure Thus, to the extent that the present 1- year term confers upon the directors some degree of responsibility to the electorate, "they are so ac- countable by choice rather than by law" Jefferson County Community Center v NLRB, 732 F 2d 122, 125 fn 3 (10th Cir ), cert denied 469 U S 1086 (1984) In my view, that is not the type of responsi- bility that qualifies an entity as a political subdivi- 6 Much effort is expended by the majority in demonstrating that, as re- quired by Federal and state statutes establishing the community services block grants and community action agencies, one-third of the Employer's board of directors are "persons chosen in accordance with democratic se- lection procedures" See Community Services Block Grant Act, 42 U S C § 9901, 9904(c)(3) (1981) Whether the procedures for electing the poor in the first Instance are "democratic" does not answer fully the question under our statute addressed by the Hawkins County test—whether those representatives, once elected, continue to be accountable to the elector- ate That is the question posed by this case 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion under Section 2(3) of the Act Cresthne Memo- rial Hospital Assn v NLRB, 668 F 2d 243 (6th Cir 1982), Jefferson County Community Center v NLRB, supra In sum, I conclude, as did the Regional Director, that under Section 2(3) of the Act, the Employer is not an entity entitled to exemption from our juris- diction Accordingly, I would process the election petition