Community Action Program of Oklahoma City

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Community Action Program of Oklahoma City and County, Incorporated, Employer-Petitioner, and American Federation of State, County and Mu- nicipal Employees, Local 2406, AFL-CIO. Cases 16-RM-610 and 16-RC-8107 August 13, 1980 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consolidated hearing was held before Hearing Offi- cer Robert Fries of the National Labor Relations Board. Following the hearing and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Proce- dure, Series 8, as amended, the Regional Director for Region 16 transferred this case to the Board for decision. Thereafter, the Employer and the Union filed briefs in support of their respective positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is a nonprofit corporation orga- nized under the laws of the State of Oklahoma and is engaged in providing a variety of social services within that State. The parties have stipulated that, during the 12-month period preceding the hearing in this case, the Employer received funding in excess of $5 million from various city, state, and Federal agencies.' During the same period, it pur- chased goods and services from suppliers located in the State of Oklahoma who in turn purchased goods from suppliers located outside the State of Oklahoma. The Employer contests the Board's jurisdiction over its operations on the ground that its govern- mental funding sources exercise such substantial control over its labor relations policies that it cannot effectively engage in collective bargaining with a representative of its employees. The Union contends, on the other hand, that the Employer's operations are subject to the jurisdiction of the Board. For the reasons expressed herein, we have I Approximitely 5I 3 Imilliin of this Ilifnding came directly Irt i the Federal (iS Cerllnienl 251 NLRB No. 16 determined that the Employer is subject to the Board's jurisdiction. The Employer's annual budget is provided almost entirely from grants from various govern- mental entities. Testimony by the Employer's ex- ecutive director and by its director of administra- tive services indicates that many of these grants contain salary and other restrictions, and that ap- proximately 345 of the Employer's 390 employees are paid from grants "with strings attached." How- ever, the extent and nature of the limitations found in the Employer's grants do not, with few excep- tions discussed herein, appear on the record.2 The most explicit testimony on the issue of con- trol by funding sources over the Employer's labor relations concerns the Community Services Admin- istration (CSA). CSA is a Federal agency author- ized to distribute funds under the Economic Op- portunity Act of 1964. 3 The Economic Opportuni- ty Act of 1964 requires that localities receiving funds from CSA establish a community action agency to receive the funds and either administer them or delegate their administration. In the Em- ployer's case, the city of Oklahoma City, Oklaho- ma, is the community action agency and the Em- ployer is the delegate.4 CSA requires that the Employer conduct area wage surveys and determine its salary structure in accordance with them. Both the wage surveys and salary structure must be approved by CSA. Ac- cording to the Employer, CSA regulations also re- quire that salaries of certain employees be set 7 percent below the prevailing wage rate for persons performing comparable functions. CSA also re- views the Employer's personnel policies annually. However, there is no indication that CSA person- nel policy reviews have any purpose other than es- Al the time i' the hear-lng in this case, it state funding agelnc was prohibiting the mployer rons promoting an emplolyee to a directorship because of a disagreement over whether the employee needed a master's degree to qualify for that position. However, the record does not indicate whether the state agency had the power to approve employees working in other types of positions, or whether such actual control by a funding agency il the Employer's selection prlocess is normal The record does indicate that, ill general. the Employer controls the hiring and firing of most employees : 42 I SC §271, t isq I ile inasor It ()klahoril.l ity appoints one-third of the Employer's board ofi direcllrs ss lth the appri;al iof the ciy cuncil Alother third of the [niploler's board is elected bh the target area populalion, and one- third I conliposed Ilf rpresentatl es of arlious community groups On Oile i)cc.isiI tIhe ity rdtu cd the number of perslons it appointed to the -rplol er', board, :illd the Ililployer then made reductiols in the other ls, o categories lf hboard nellbers ito Inlaillitlil the one-third ratio of hoard members ppolinted by the city. The Emplorer's executive director testi- fied that this cmpositlmn of the board of directolrs is required by Federal statule and the mplhyer's hlaw, HBeca Lie neither the Economic ()p- portuiliy Act of l h4 nor Ihe regulations pursuant to that act requires pa.rticlpatliorl hy a delegate if it cmmullyit action agency. we must Iasulie orl the basis of the record bhfoire us ha Ihis structure i imposed b th e Fmploer's bylaw: Se Se .SulhKI' l. xas Public Breiadtisting Coun- (l, 227 N R 15.t), 152 ( 1l77) COMMUNITY ACTION PROGRAM 87 tablishing certain minimum standards for benefits and personnel procedures. The Employer is free to hire employees and set their specific salaries within the limits of the wage structure it has established. Variations in the wage structure are apparently ne- gotiable. Although CSA sets certain limitations on salaries over $18,000 and, in certain cases, on the hiring of employees at salaries more than a certain amount over their prior salaries, the number of em- ployees subject to such restrictions is unclear from the record. The Oklahoma City city council has some au- thority to oversee the Employer's operations. All grant money is channeled to the Employer through the city council, which must review all of the Em- ployer's grant applications, and which has the power to review the Employer's compliance with the terms of the grants. However, the record does not reveal to what extent the city council's authori- ty in this area is actually exercised. The Employ- er's executive director testified that the city council can also cancel any delegation to the Employer of its authority under a CSA grant, and that it re- views all of the Employer's budgets and work pro- grams, as well as its personnel manual. The record contains testimony of only two instances when the city council exercised influence over the Employer; however, one instance occurred when the city del- egated certain service functions to the Employer and requested that certain employees already per- forming them be placed on the Employer's payroll at their existing salaries. 5 The other instance oc- curred when the city "prevailed upon" the Em- ployer to grant its CETA employees certain bene- fits not normally granted to others considered tem- porary employees. On the whole, the only significant limitations on the Employer's labor relations established by the testimony are salary restrictions.6 There are some sort of salary restrictions on a total of 345 of the Employer's 390 employees. However, the nature of the restrictions remains unclear. For example, the record does not indicate whether the salaries of the 135 employees whose compensation is set by grants were set on the basis of proposals by the Employ- er, or whether they were determined solely by the funding agency. Furthermore, there is no testimony It is not shown in the record whether these employees have been included in the stipulated unit. ' Thus, testimony fails to establish even the degree of governmental control over labor relations found in Catholic Bishop of Chicago. .4 Corpo- ration Sole. Department of Federal Programs. 235 NLRB 776 1978) in which the Board asserted jurisdiction over a nonprofit publicly funded corporation performing scial services. Specificall 5. there is no testimony here to establish governmental control over the manner in v.hich em- ployees perform their jobs See also Chicago Youth Centers, 235 NRB 915 (1978)1 Young Women 's Chrtriamn .4sociation of .otr,opolitan Chicago. 235 NLRB 788 (1978); The C(hae Hlouse. Inc 235 NLRB 792 (1 978) to indicate whether the salaries that are set by grants are merely initial salaries, whether discre- tionary raises by the Employer are possible, or whether salaries are subject to negotiations during the terms of grants. In sum, the evidence is insufficient to establish such control by city, state, or Federal officials over the Employer's labor relations as would preclude meaningful collective bargaining between the Em- ployer and a representative of its employees.7 This is especially true in light of testimony by the Em- ployer's executive director that the Employer has control over disciplinary actions, can control hiring and firing of employees in most instances, can set initial salaries as well as give raises without ap- proval in the vast majority of cases, and can change its wage structure within the limitation of the area wage surveys it conducts. Accordingly, based on the record before us, we find that the Employer is able to engage in mean- ingful collective bargaining concerning the terms and conditions of employment of its employees, that it is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 2. American Federation of State, County and Municipal Employees, Local 2406, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties have stipulated the job categories that are to be included in the unit which the Union seeks to represent and have included certain posi- tions held by CETA employees in the unit. How- ever, their stipulation was made subject to the Board's determination that the CETA employees covered by the stipulation share a sufficient com- munity of interest to be so included in the unit. Be- cause there is no evidence in this case of factors which would support the exclusion of the Employ- er's CETA employees from the bargaining unit, we find, in accordance with established principles, that they are properly included in a unit with other em- ployees. In accordance with the stipulation of the parties, we thus find that the following employees of the Employer constitute a unit appropriate for the pur- A' L R. B X ustin Deolopmenr Center. Inc. o06 F2d 785. 789 and fn . (7th Cir 19741 R,oRsemount Center, 248 NLRB 1322 (1980) COMMUNITY ACTION PROGRAM 87 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pose of collective bargaining within the meaning of Section 9(b) of the Act: 9 Included: Repro equipment operator, recep- tionist, property and supply clerk, building su- perintendent, courier, bus driver/custodian, carpenter apprentice, parent/organization spe- cialist, special needs advocate, teacher aide, cook, custodian, cook helper, assistant cook, utility driver, kitchen aide, outreach worker, youth employment specialist, youth opportuni- ty specialist, SWAPO Center aide, community workers, program aide, prenatal specialist, site managers, family advocate, family counsellors, weatherization coordinators, CETA secretar- ies, Head Start teachers, teachers, secretaries, assistant food service supervisor, nutrition spe- cialist, health and social services specialist, school linkage specialist and resource control supervisor, graphic arts specialist, repro equip- ment aide, volunteer services assistant, trans- portation and facilities aide, maintenance and utility aide, community worker, Native-Ameri- can liaison, Mexican-American liaison, carpen- ter trainees, plumber trainee, electrician helper, assessment processor, weatherization crew member, senior warehouseman, special order fabricator, insulation team member, ware- houseman, demolition truckdriver, demolition crew worker, bid maintenance supervisor, re- source team member, and youth employment specialist. 9 Testimony of the Employer's executive director indicates that certain employees of the Employer's subcontractors may have been included in the stipulated unit. The record does not reveal whether the Employer is a Joint employer of these employees. We therefore find that any such em- ployees should be allowed to vote subject to challenge at the election herein directed. Excluded: executive director, deputy director, executive secretary, director of administrative services, director of human services, director of planning, director of community services, director of fiscal management, security chief, operations coordinator, administrative man- ager, regional weatherization manager, teacher director, training EEO officer, personnel as- sistant, personnel clerks, senior planner, asso- ciate planner, grant specialist, data specialist, assistant planner, CARES senior counsellor, CARES alcoholic counsell, CARES data co- ordinator, accountant, bookkeeper, carpenter foremen, weatherization foreman, demolition crew leader, clerk typist, training secretaries, personnel secretary, public information assist- ant, senior accountant, meal project director, assistant meals project director, food service supervisor and community services coordina- tor, preventative actions project manager, the SWAPO projects manager, SWAPO Center directors, the area center directors, public in- formation officers, property and purchasing of- ficer, transportation and facility director, dem- olition supervisor, weatherization shop man- ager, insulation team chief, administrative as- sistant to the housing and home repair man- ager, carpenter instructor, supervisor, carpen- ter foreman, CFRP project director, family ad- vocate supervisor, CARES project director, Head Start director, volunteer service officer and curriculum day care specialist, supervisors and guards as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.]