Association for the Developmentally Disabled

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 784 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association for the Developmentally DisabledI and
American Federation of State, County and Munici-
pal Employees, Ohio District Council #53. Case
9-RC-12012
August 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Earl L.
Ledford on May 11, 1977. Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board's Rules and Regulations, Series 8, as
amended, this case was transferred to the National
Labor Relations Board for decision. Thereafter, the
Employer filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
Petitioner seeks to represent employees employed
by Association for the Developmentally Disabled,
hereinafter ADD, who are engaged in the provision
of mental health services. ADD contends that it is
exempt from Board jurisdiction as a political
subdivision of the State of Ohio.
The Supreme Court has held that employers are
exempt political subdivisions under Section 2(2) of
the Act if they are either (1) created directly by the
State, so as to constitute departments or administra-
tive arms of the government, or (2) administered by
individuals who are responsible to public officials or
to the general electorates The record demonstrates,
and we find, that ADD is an agency of Franklin
County and is thus exempt from the Board's
jurisdiction as a political subdivision of the State of
Ohio.3
In 1967, pursuant to the requirements of chapter
340 of the Ohio Revised Code, Franklin County
established the Franklin County Mental Health and
Retardation Board (designated throughout the hear-
ing, and hereinafter referred to, as the 648 Board) for
the purpose of providing community services for
The name of the Employer appears as amended at the hearing.
2 N.L.R.B. v. The Natural Gas Utility District of Hawkins County,
Tennessee, 402 U.S. 600 (1971).
:' In view of our holding herein we find it unnecessary to determine
231 NLRB No. 121
mentally ill, mentally retarded, and emotionally
disturbed persons. In order for the 648 Board to
carry out this function, the statute provides, in
pertinent part, that the 648 Board shall:
(D) Promote, arrange, and implement working
agreements with social agencies, both public and
private, and with educational and judicial agen-
cies;
(E) Enter into contracts with state hospitals,
other public agencies, and with private or volun-
tary hospitals and other private or voluntary
nonprofit agencies for the provision of mental
health and mental retardation service and facili-
ties;
* * * *
(J) In the event a needed service cannot be
provided by an existing public or private agency,
directly operate a mental health or mental
retardation facility until such time as this respon-
sibility can be assumed by another agency.
In 1970, the 648 Board called together a task force
comprised of professionals and parents to study the
problem of mental retardation in Franklin County.
Thereafter, the task force recommended to the 648
Board that a residential and case management
service be established in Franklin County. As a
result, the 648 Board directly created ADD primarily
for the purpose of providing residential services for
developmentally disabled persons. ADD's first board
of directors was composed of members of the task
force which recommended the agency's creation.
Prior to commencement of ADD's operations,
William Gibson was hired by the 648 Board and
placed on the county payroll to organize the new
agency, prepare a budget, hire staff members, and
prepare to assume the position of ADD's executive
director during that period, and for a period of time
after creation of ADD. Gibson and all of the
individuals chosen to run ADD were included in the
Ohio retirement fund for public employees known as
the Public Employees Retirement System. Pursuant
to a July 21, 1972, opinion of the Attorney General
of the State of Ohio to the effect that those hired by
the 648 Board to run ADD retained their status as
public employees when they went to work for ADD,
ADD now contributes to the Public Employees
Retirement System on behalf of Executive Director
Gibson and four of the original ADD staff members.
whether ADD meets our commerce requirements. In addition, we find it
unnecessary to pass on the issue of whether ADD's home administrators are
statutory supervisors.
784
ASSOCIATION FOR THE DEVELOPMENTALLY DISABLED
ADD, a nonprofit corporation incorporated in the
State of Ohio, maintains residential, day care, and
respite care programs for developmentally disabled
Ohio residents pursuant to its contract with the 648
Board. ADD provides residential services, which
include training in independent living skills for
young mentally retarded adults between the ages of
18 and 40, at its seven group homes and four
apartment units in Franklin County. The vast
majority of these clients are referred by the State of
Ohio, and at least 50 percent of them come from
state institutions for the mentally retarded. 4 None of
the clients come from outside the State of Ohio.
Three of the group homes are owned by the
Franklin County Board of County Commissioners
and are leased to ADD by the 648 Board. The
remaining four group homes are leased from private
owners. An eighth group home has recently been
purchased by ADD but was not yet in operation at
the time of the hearing. While the 648 Board will
reimburse ADD for the total cost of this additional
facility, the 648 Board will also require that all of the
residents at the new home be referred from Ohio
state mental institutions. ADD also maintains six
apartment units in Delaware County.5
In addition to its residential facilities, ADD also
operates a respite center. The center is owned by the
State of Ohio and is located on the grounds of the
Columbus State Institute, a state institution for the
mentally retarded. The respite center consists of two
homes, one for children and one for adults. Respite
center clients are provided with temporary care when
special circumstances-such as a mother's illness-
prevent the client's family from taking care of him.
ADD also operates a day care center for develop-
mentally disabled children and assigns professionals
to each of the major Franklin County mental health
centers for purposes of consultation.
ADD's income is, for the most part, derived from
Federal, state, and county sources. In fiscal year
1976, ADD obtained over $830,000 in income; 24
percent came from the Federal Social Service
Reimbursement Program; 50 percent came from
funds generated in part by a Franklin County mental
health and retardation levy and in part by State of
Ohio matching funds; 16 percent came from resi-
dents' fees for room and board; and the remainder
came from special state grants from the Ohio Office
of Developmental Disabilities and from State Con-
struction Assistance. All of these revenues, except for
residents' fees, were paid to ADD through the 648
' ADD is required to consult with one of the divisions of the Ohio
Department of Mental Health and Mental Retardation prior to admitting or
removing a state-referred resident.
With respect to the Delaware CountS apartments. ADD has. with the
approval of the 648 Board, executed a separate contract with the Ohio
Department of Mental Health and Mental Retardation. The department
Board. ADD is required to remit residents' fees to
the 648 Board. Such fees may be paid to ADD at the
discretion of the 648 Board once the 648 Board
approves ADD's operating budget. ADD may not
exceed or change its budget without the express
approval of the 648 Board.
ADD is contractually required to comply with the
648 Board's policy and procedure manual. The
manual requires, inter alia, that all gifts, donations,
and rental income received from properties pur-
chased for ADD's use with program funds must be
returned to the 648 Board for use in paying program
expenses. The manual also provides that at the end of
the fiscal year all unencumbered balances will revert
to Franklin County to be reallocated to the next
fiscal year's programs. The manual specifies that
ADD may purchase nonexpendable property
through the 648 Board's administrative office and
that title to all property obtained through state and
county funds shall reside in the 648 Board. Accord-
ing to the testimony of Executive Director Gibson,
all items over $50 must be purchased for ADD by the
648 Board.
The 648 Board's policy and procedure manual also
directs audits of ADD by the 648 Board. Executive
Director Gibson testified that such audits are
conducted annually. Gibson further testified that
ADD is subject to audit by the State of Ohio but that
such an audit has not been conducted in approxi-
mately 2 years. In addition, the 648 Board performs
all of ADD's accounting, with the exception of books
of original entry. Thus, the 648 Board processes
ADD's invoices, pays its bills, prepares its tax
returns, and prepares and pays its payroll. With
respect to the latter, the 648 Board prescribes ADD's
payroll reporting procedures. After ADD submits a
monthly computerized list of its employees to the 648
Board, the latter issues paychecks bearing the
signatures of the 648 Board's executive director and
business administrator.
ADD is required to adhere to the State of Ohio
Position Classification booklet which lists all state
job classifications and corresponding rates of pay. In
addition, the 648 Board prescribes the employment
application form used by ADD. Executive Director
Gibson testified that, although prior to October 1976
ADD could not hire or change the positions of
employees without written authorization by the 648
Board, in October 1976 the 648 Board changed its
procedures so as to permit ADD more flexibility in
its personnel policies. Gibson further testified,
provides 50 percent of the capital funding and retains partial title to the
property and all the furnishings. By agreement. at least half of the residents
of these units must be admitted directly from Ohio state mental institutions.
When ADD admitted two clients above its quota for pnvate admissions, the
department refused to reimburse ADD for their care.
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, that the 648 Board retains statutory
authority to return to its pre-October 1976 proce-
dures.
ADD has a board of directors composed of 17
individuals which has its own nominating process
and is self-perpetuating. The ADD board of directors
reports, however, to the 648 Board, which can
disapprove of an action passed by the ADD board of
directors and, according to Executive Director
Gibson's testimony, "make it not happen."
Finally, the State of Ohio has recently required
ADD to amend its bylaws so as to add the words "to
fulfill a public purpose" to the description of its
services, and has in addition required ADD to
amend its articles of incorporation so as to provide
that the State of Ohio will be a party to any judicial
or other dissolution proceeding or agreement involv-
ing ADD and may enjoy the status of a distributee.
In light of the above evidence and the record as a
whole, we find that ADD is an agency of Franklin
County and is thus exempt from the Board's
jurisdiction as a political subdivision of the State of
Ohio.6 ADD was created directly by the 648 Board,
which is part of the government of Franklin County,
to fulfill Franklin County's statutory obligation
under section 340 of the Ohio Revised Code to
provide mental health services. It thus satisfies the
'i See Caimden-Clark Memorial Hospital, 221 NLRB 945 (1975).
first test for exemption as a political subdivision set
forth in Hawkins County, supra; i.e., it was "created
directly by the State." In addition, ADD does not
serve clients from outside the State of Ohio; at least
75 percent of ADD's funding is from governmental
sources; several facilities operated by ADD are
either owned by or were paid for in whole or in part
by the State of Ohio or by Franklin County, and all
of ADD's nonexpendable property is titled in the 648
Board; the 648 Board performs all of ADD's
accounting except for books of original entry, pays
the salaries of ADD's employees, purchases all items
over $50 for ADD, requires ADD to adhere to its
policy and procedure manual and to the State of
Ohio's Position Classification booklet, and may
refuse to sanction actions passed by ADD's board of
directors. It is clear from the foregoing that ADD is a
political subdivision of the State of Ohio and that it is
therefore exempt from Board jurisdiction under
Section 2(2) of the Act.
As we have concluded that ADD is exempt from
coverage of the Act, we shall dismiss the instant
petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
786