Albany County Opportunity

National Labor Relations Board - Board Decisions

Dec 13, 1990

300 N.L.R.B. 886 (N.L.R.B. 1990)

886
300 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 16, 1983, the Acting Regional Director issued a Decision and Di-
rection of Election. The election was held on June 20, 1983, and on September
22, 1984, the Board granted the Employer’s request for review of the Decision
and Direction of Election and the ballots were 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 Acting Regional Director, on September 2, 1986, issued a Supple-
mental Decision and Order asserting jurisdiction and further ordering that the
impounded ballots be opened and counted, and that a tally of ballots issue.
The Employer requested review and on June 8, 1987, the Board granted the
Employer’s request for review, and remanded the case sua sponte to the Re-
gional Director to take evidence on the Employer’s tripartite board of direc-
tors, in order for the Board to determine the 2(2) status of the Employer. See
NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971)
(Hawkins County).
2 Economic Opportunity Act of 1964, 42 U.S.C. § 2701 et seq. (Aug. 20,
1969).
3 The Community Services Block Grant Act, 42 U.S.C. § 9901 et seq. (Aug.
13, 1981).
4 1982 N.Y. Laws, Chapter 728, Community Services Block Grant Program,
approved July 27, 1982.
5 Public sector seats may be allotted to appointed public officials only when
the chief elected officials have determined officially that the number of such
officials reasonably available or willing to serve is less than one-third of the
membership of the board.
6 Although the composition of the board allows for 21 members, there are
presently only 16 members: 6 of whom are elected public officials or their
representatives; 5 are representatives of the poor; and the remaining 5 mem-
bers are the representatives of private groups. The public members are in prac-
tice designees of elected officials and not the officials themselves. No more
than one board member is to come from any of the nine towns or four cities
of the county or the county legislature. Any board member can serve as officer
or as member of the executive board. The public members serve at the pleas-
ure of the elected official who appointed them. They are also subject to re-
moval, as is any board member, by a majority of the board.
Albany County Opportunity, Inc. and The Civil
Service Employees Association, Inc., Local 1000
AFSCME, AFL–CIO, Petitioner. Case 3–RC–
8414
December 13, 1990
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 2, 1986, the Regional Director for
Region 3 issued a Supplemental Decision and Order in
the above-entitled proceeding in which he asserted ju-
risdiction over the Employer. In accordance with Sec-
tion 102.67 of the Board’s Rules and Regulations, the
Employer filed a timely request for review of the Re-
gional Director’s Supplemental Decision. By tele-
graphic order dated June 8, 1987, the Board granted
the Employer’s request for review.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record, includ-
ing Petitioner’s brief on review, and makes the fol-
lowing findings.
The Employer is a ‘‘community action agency,’’ or-
ganized to facilitate, encourage, and promote (1) the
provisions and purposes of the Economic Opportunity
Act of 1964,2 the Community Services Block Grant
Act 3 (created by the Omnibus Reconciliation Act of
1981), and (2) the implementation of Federal, state,
and local laws relative to the elimination and preven-
tion of poverty. The Employer was incorporated in the
State of New York on August 1, 1966, as a not-for-
profit corporation under 26 U.S.C. § 501(c)(3) (Aug.
15, 1954), as amended. Its bylaws provide that the pur-
poses and powers of the corporation shall be in accord
with the New York State Not-For-Profit Corporation
Law. The Employer administers head start, weatheriza-
tion, senior action, and home energy assistance pro-
grams. It also administers a community service block
grant, which provides funding for some smaller
projects. It receives funding from the Federal, state,
and local governments as an antipoverty agency in Al-
bany County, New York.
State legislation, in accordance with Federal law re-
quirements, mandates that the Employer have a board
of directors and that the composition of the board be
as follows:
[O]ne-third of the members of the board are elect-
ed public officials, currently holding office or
their representatives, to be selected by the chief
elected officials of the state or local government
or combination thereof who possess the authority
to designate an eligible entity pursuant to this arti-
cle, except that if the number of elected officials
reasonably available and willing to serve is less
than one-third of the membership of the board,
membership on the board of appointive public of-
ficials may be counted in meeting such one-third
requirements. At least one-third . . . chosen in ac-
cordance with any democratic selection procedure
which assures maximum feasible participation of
poor persons residing in the area to be served by
the eligible entity; and one-third . . . representa-
tives of interest groups and private organizations
within the community to be served, including but
not limited to social service agencies, educational
institutions, business, industrial, labor and reli-
gious organizations.4
The Employer’s bylaws in article IV, section A, in
compliance with the above requirements, provide that
the board of directors of the Employer shall be divided
into three groups as follows:
(1) One-third are elected public officials, in-
cluding the chief elected officials or their rep-
resentatives.5
(2) One-third of the board must be democrat-
ically selected representatives of the poor in the
area served.
(3) A maximum of one-third directors are des-
ignated annually by major private community
groups and interests.6
887ALBANY COUNTY OPPORTUNITY
7 Candidates who propose to be members of the board of directors must sub-
mit a letter to the nominating committee stating their reasons for wishing to
serve. The nominating committee then has the right to screen such applicants
as to their interest and acceptability.
8 The nominating committee publishes the list of candidates and the can-
didates themselves may publicize the fact of their nomination.
9 In Economic Security Corp., the Board held that Federal and state laws,
by referring to ‘‘democratic selection procedures’’ envisioned an election of
individuals representative of the poor. The organizations’ elaborate election
procedures reinforced this holding.
10 General electorate has been defined to encompass even limited groups of
electors and clearly covers the Albany County area served by the Employer.
See Economic Security Corp., supra at 563 fn. 12.
11 Responsibility to public officials or the general electorate does not require
that the directors be subject to removal from office by public officials or the
general electorate in addition to being placed in office by public officials or
the general electorate. See Economic Security, supra at 565.
12 We find it unnecessary to address the other issues raised in the Employ-
er’s request for review.
The Employer’s bylaws, in article VII-B, set forth
an elaborate selection procedure which is to be fol-
lowed in conducting the elections of the representa-
tives of the poor. The nominating committee, con-
sisting of one representative of each of the three sec-
tions of the board of directors, searches throughout the
year for possible candidates for representatives of the
poor to the board. The elections are conducted prior to
the board’s annual meeting in March, and they are pre-
ceded by a nominating process and an election process
designed to include as many persons from poor areas
as possible. The community at large has to be notified
of the elections and has the right to submit the names
of candidates.7 The names of candidates ultimately
nominated are publicized to the community.8 The elec-
tions are conducted in target areas, i.e., areas with a
high number of residents who are considered poor by
Federal guidelines. The date, the time, and the location
of the voting spots must be properly supplied to the
community prior to the election, which is then held at
convenient locations throughout the community. At the
voting sites there must be a sealed ballot box and a
sign-in sheet for eligible voters. At the close of the
elections the ballot box and voting list are turned over
to the nominating committee or supervisor of election,
i.e., League of Women Voters, which will count the
ballots and announce the results. The persons elected
by this process serve a 2-year term and are eligible to
be repeat candidates. Any member of the board of di-
rectors may be removed for cause; such removal, must
be by a majority vote of the board members present
at a special meeting called by the board for that pur-
pose.
Section 2(2) of the Act provides that the term ‘‘em-
ployer’’ shall not include ‘‘any State or political sub-
division thereof.’’ The Board has limited the ‘‘political
subdivision’’ exemption to entities ‘‘that are either (1)
created directly by the state, so as to constitute depart-
ments 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.
In Economic Security Corp., 299 NLRB 562 (1990),
and Woodbury County Community Action Agency, 299
NLRB 554 (1990), the Board found that nonprofit
community action organizations which by virtue of
Federal and state law are composed of a tripartite
board of directors which encompass equal parts con-
sisting of (1) public officials or their representatives;
(2) members and representatives of different political,
religious, or business groups in the community; and (3)
‘‘elected’’ members representative of the poor in the
area to be served by the entity, are exempt from the
Board’s jurisdiction.9 The Board held that the one-third
of the board of directors composed of public officials,
when combined with the one-third of ‘‘elected’’ mem-
bers representative of the poor, constituted a majority
of directors accountable to public officials or the gen-
eral electorate,10 thus satisfying the second prong of
the test enunciated in Hawkins County, supra, for the
exemption of political subdivisions.
The case before us fits squarely within the param-
eters of both Economic Security, supra, and Woodbury,
supra. The State of New York has included in its laws
relating to ‘‘community action agencies’’ the Federal
law requirement that one-third of the board of directors
must consist of public officials and their appointees,
and the requirement that one-third be representatives of
the poor chosen under the ‘‘democratic selection proc-
ess,’’ designed to ensure that they are representative of
the poor in the target area to be served by the agency.
The Employer’s bylaws have incorporated these re-
quirements. The Employer’s election procedure ensures
that those board members representative of the
‘‘poor,’’ are elected in accordance with ‘‘democratic
selection procedures’’ adequate to assure they are truly
representative of the poor in the area served. When the
one-third representative of the poor is combined with
the one-third of those members that are public officials
or their representatives, the majority of the board is re-
sponsible by law to public officials or the general elec-
torate.11 Accordingly, we find the Employer here to be
an exempt political subdivision of the State of New
York, and we dismiss the petition.12
ORDER
The petition is dismissed.
CHAIRMAN STEPHENS, dissenting.
For the reasons set forth in my dissent in Woodbury
County Community Action Agency, supra, I would as-
sert jurisdiction and thus would not dismiss the peti-
tion.