Brevard Achievement Center

National Labor Relations Board - Board Decisions

Sep 10, 2004

342 N.L.R.B. 982 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 101
982
Brevard Achievement Center, Inc. and Transport
Workers Union of America, Local 525, AFL–
CIO. Case 12–RC–8515
September 10, 2004
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
SCHAUMBER, WALSH, AND MEISBURG
On July 27, 2000, the Regional Director for Region 12
issued a Decision and Direction of Election, in which she
found appropriate the petitioned-for unit of janitors, cus-
todians, and leadpersons—including the disabled indi-
viduals, whom she found to be statutory employees—
employed by the Employer at its Cape Canaveral Air
Station facility in Florida. In accordance with Section
102.67 of the Board’s Rules and Regulations, the Em-
ployer filed a timely request for review of the Regional
Director’s decision, and the Petitioner filed a brief in
opposition. On August 23, 2000, the Board granted the
Employer’s request for review. Thereafter, the Employer
and Petitioner filed briefs on review.1
Having carefully reviewed the entire record in this
proceeding, including the briefs on review, we conclude,
in agreement with the Employer, that the disabled work-
ers at the Employer’s facility are not “employees” within
the meaning of Section 2(3) of the Act.
Facts
Brevard Achievement Center (BAC) is a nonprofit
corporation whose mission is to assist adults with severe
disabilities to become independent members of the
community, by providing them with training, education,

1 The Petitioner also filed a Renewed Motion to Reopen the Record,
by which it sought to present alleged newly-discovered evidence bear-
ing on the disabled workers’ employee status. We deny the Petitioner’s
motion. Section 102.65(e) of the Board’s Rules and Regulations pro-
vides that a party may, “because of extraordinary circumstances, move
after the close of the hearing for reopening of the record.” That section
additionally provides that the motion to reopen must specify the error
alleged, the prejudice alleged to result from the error, the additional
evidence sought to be presented and the reason why it was not pre-
sented previously, and the result it would require if adduced and cred-
ited.
We note initially that all but one of the documents the Petitioner
sought to introduce related to occurrences that post-dated the hearing in
this proceeding. Such evidence does not provide a basis for reopening
the record. See A & J Cartage, Inc., 309 NLRB 319, 319 fn. 2 (1992).
With respect to the evidence pre-dating the hearing—a written report
instructing “employee” Heilman to re-clean a particular area of the
facility―the Petitioner failed to demonstrate why the evidence was not
presented previously and, more importantly, that acceptance of the
evidence would produce a result different from the one we reach here.
In that regard, we note that the report does not indicate the imposition
of any discipline as a result of Ms. Heilman’s allegedly inadequate
cleaning, nor does the report provide any insight as to the probable
treatment of a nondisabled worker under similar circumstances.
and rehabilitative services. BAC provides a supported
community living program for disabled individuals and
three vocational programs: adult day training (formerly
known as a sheltered workshop); job placement and re-
lated support services for disabled persons in private sec-
tor jobs; and work and rehabilitation opportunities for
disabled individuals at nine jobsites where BAC provides
services under contracts with agencies of the Federal
Government pursuant to the Javits Wagner O’Day Act
(JWOD Act). See 41 U.S.C. § 46 et seq.
The JWOD Act provides a framework through which
organizations may compete for and obtain federal con-
tracts, but only if at least 75 percent of the “man-hours of
direct labor” on the contract are performed by individuals
with “severe disabilities.” The latter term is defined as
[a] person other than a blind person who has a severe
physical or mental impairment (a residual, limiting
condition resulting from an injury, disease, or congeni-
tal defect) which so limits the person’s functional ca-
pacities (mobility, communication, self-care, self-
direction, work tolerance or work skills) that the indi-
vidual is unable to engage in normal competitive em-
ployment over an extended period of time.
41 C.F.R. § 51–1.3 (emphasis added).
Since 1997, BAC has maintained a JWOD contract for
the provision of janitorial services at the Cape Canaveral
Air Station. In connection with this contract, BAC offers
work rehabilitation opportunities to about 53 severely
disabled individuals—whom BAC terms “clients.” As
required by the JWOD Act, BAC identifies potential
program participants through a process in which the na-
ture and extent of their disabilities are evaluated and
documented, and a determination is made and certified
that each client is “severely disabled” within the meaning
of the JWOD Act.2 Approximately 80 to 85 percent of
the clients are either mentally impaired or have severely
disabling mental illnesses. Some have multiple disabili-
ties. In addition, BAC employs five nondisabled lead-
persons and two nondisabled regular employees on the
Cape Canaveral Contract.3

2 In accordance with the requirements of the JWOD Act, BAC main-
tains documentation from a qualified doctor or psychiatrist that identi-
fies each client’s disability. Under these circumstances, whether BAC
President and CEO Dayle Olson was able to identify at the hearing the
precise diagnosis of each of BAC’s disabled clients has no bearing on
the clients’ actual status as severely disabled individuals, contrary to
our dissenting colleagues’ suggestion.
3 Prior to 1997, IRC, a for-profit corporation, performed the janitor-
ial and custodial work at the Cape Canaveral Air Station pursuant to a
contractual arrangement that was not governed by the JWOD Act. The
nondisabled individuals hired by the Employer, including the 5 leadper-
BREVARD ACHIEVEMENT CENTER 983
While all of BAC’s workers perform the same janitor-
ial and custodial tasks, work the same hours, receive the
same benefits, and, with the exception of the leadper-
sons, earn the same wages, BAC’s clients work under an
umbrella of training, counseling, and other rehabilitation
services which distinguish them from BAC’s nondis-
abled employees in many important respects. Specifi-
cally, a trainer works at BAC’s Cape Canaveral location
3 days per week teaching new clients the duties they are
expected to perform, and training those existing clients
whose performance has regressed. In addition, a mental
health counselor is present every day at the facility pro-
viding counseling, problem-resolution, and crisis-
intervention services to BAC’s clients on an as-needed
basis. Clients also receive assistance with daily-living
activities such as shopping, paying bills, and preparing
meals. BAC also provides financial assistance for out-
patient mental health services for its disabled clients
when such services are not covered by the clients’ avail-
able health insurance coverage.
BAC’s clients, unlike the Company’s nondisabled em-
ployees, perform their duties under a supervisory struc-
ture designed to maximize the rehabilitative and training
aspects of the program. Thus, nondisabled workers are
subject to a progressive discipline procedure, while the
clients are not.4 Clients are also exempt from discipline
for any conduct related to their disabilities. Similarly,
although BAC assigns its clients and nondisabled em-
ployees the same amount of work each day and expects a
certain level of quality (such that the leadpersons may
direct them to repeat a particular task if it is not per-
formed adequately initially), the record reflects that cli-
ents are permitted to work at their own pace. Further, if
a client forgets his or her responsibilities, BAC sends out
a trainer to correct the problem. One of BAC’s leadper-
sons testified about specific instances in which disabled
clients received one-on-one assistance from the trainer
for the duration of their tenure with BAC. The record
also revealed that clients who failed to learn their as-
signed tasks were not terminated or removed from the
program but instead were assigned to a new team.
BAC evaluates clients at least annually to determine if
they have progressed sufficiently to work in a competi-

sons, previously performed the same janitorial work at the Cape Ca-
naveral station under the predecessor contractor, IRC.
4 The uncontradicted testimony of BAC’s president, Dayle Olson,
indicates that BAC follows a progressive disciplinary system with
respect to its few nondisabled workers but does not do so with regard to
the disabled clients. Rather, Olson testified that in the event of a prob-
lem with a client’s conduct, the employment and training coordinators
and other professional staff intervene and attempt to discern both the
cause of the problem and an appropriate solution to correct the prob-
lem.
tive employment environment. Under the JWOD Act,
those who attain that goal no longer qualify for “severely
disabled” status, and Olson testified that clients routinely
make this transition.
The Regional Director’s Decision
The Regional Director found that the disabled clients’
working conditions mirror those in the private sector, and
that their relationship with BAC is “typically industrial”
in nature. Accordingly, the Regional Director concluded
that the disabled workers are “employees” within the
meaning of Section 2(3) of the Act. For the reasons that
follow, we find, contrary to the Regional Director, but
consistent with longstanding Board precedent, that the
disabled workers are not statutory employees and, ac-
cordingly, they should be excluded from any unit found
appropriate.
Analysis
I. THE PRIMARILY REHABILITATIVE/PRIMARILY
ECONOMIC STANDARD
For nearly half a century, the Board has declined to as-
sert jurisdiction over employment relationships, such as
sheltered workshops or rehabilitative vocational pro-
grams, which are primarily rehabilitative in nature. Cit-
ing the nonprofit status of the employers and the rehabili-
tative purpose of the relationship, the Board initially
concluded that it lacked jurisdiction over the employers
in question.5 In response to the 1974 Healthcare
Amendments, the Board began asserting jurisdiction over
nonprofit employers, but held that it would not assert
jurisdiction over disabled individuals working in shel-
tered workshop arrangements that were primarily reha-
bilitative in nature.6 Thus, although the Board’s focus
shifted from the employer to the disabled individuals, the
result remained the same: the Board would not assert
jurisdiction over relationships that were primarily reha-
bilitative.
The Board summarized these developments in Good-
will Industries of Tidewater7 and Goodwill Industries of
Denver,8 which explicated the case-by-case factual
analysis applied to assess whether disabled individuals
working in a primarily rehabilitative setting are statutory
employees.9 In determining whether such individuals are

5 Sheltered Workshops of San Diego, 126 NLRB 961 (1960) (declin-
ing to assert jurisdiction over nonprofit sheltered workshop whose
“essential purpose is to provide therapeutic assistance rather than em-
ployment.”).
6 Goodwill Industries of Southern California, 231 NLRB 536 (1977).
7 304 NLRB 767, 768 (1991).
8 304 NLRB 764, 765 (1991).
9 In these cases, the Board found that the disabled individuals were
not employees. Compare Arkansas Lighthouse for the Blind, 284
NLRB 1214, 1216 (1987) (finding statutory employee status where
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD984
statutory employees, the Board examines the nature of
the relationship between the individuals and their em-
ployer. If that relationship is guided primarily by busi-
ness considerations, such that it can be characterized as
“typically industrial,” the individuals will be found to be
statutory employees; alternatively, if the relationship is
primarily rehabilitative in nature, the individuals will not
be found to be employees. In conducting this analysis,
the Board examines numerous factors including, inter
alia, the existence of employer-provided counseling,
training, or rehabilitation services; the existence of any
production standards; the existence and nature of disci-
plinary procedures; the applicable terms and conditions
of employment (particularly in comparison to those of
nondisabled individuals employed at the same facility);
and the average tenure of employment, including the
existence/absence of a job-placement program.
In Goodwill of Tidewater and Goodwill of Denver, the
Board concluded, on facts similar to those in this case,
that disabled individuals who were performing janitorial
and merchandise-stocking work at government military
bases pursuant to contracts obtained by the employers
under the JWOD Act were not statutory employees. In
Goodwill of Denver, the Board’s conclusion that the dis-
abled “client/trainees” were not “employees” was prem-
ised primarily on the following facts: the employer per-
mitted the client/trainees to work at their own pace and
did not subject them to production quotas or discipline
for insufficient production; the employer rarely imposed
discipline and instead emphasized counseling and/or
transfers to more appropriate positions at other Goodwill
locations; the employer conducted both initial and con-
tinuing evaluations of the client/trainees as part of its
rehabilitation program; the employer provided rudimen-
tary training on such topics as interacting appropriately
with staff members and following instructions; the em-
ployer employed a full-time trainer, who frequently
transported the client/trainees to and from work; and the
employer employed two full-time job-placement special-
ists for the purpose of placing the client/trainees in com-
petitive outside employment.
For similar reasons, the Board also found that the em-
ployer’s “client/employees,” a classification of less se-
verely disabled workers performing the same janitorial
and stocking services, could not be considered statutory
employees. Id. at 766. Although most of the cli-
ent/employees did not receive the employer’s counseling
and training services, the Board emphasized that, as with the
client/trainees, the employer meted out discipline only in

relationship was not primarily rehabilitative), enf. denied 851 F.2d 180
(8th Cir. 1988); Lighthouse for the Blind of Houston, 244 NLRB 1144
(1979), enfd. 696 F.2d 399 (5th Cir. 1983) (same).
extreme circumstances (relying instead on counseling or
potential transfers) and permitted the client/employees to
work at their own pace. Id.
In Goodwill of Tidewater, the Board similarly con-
cluded that the disabled “clients” were not employees
within the meaning of Section 2(3) of the Act. In finding
the clients’ relationship with the employer to be primar-
ily rehabilitative in nature, the Board relied principally
on evidence that the clients were permitted to work at
their own pace and were not subject to production quotas
or discipline for insufficient production. The Board also
emphasized that the clients, although subject to the same
work rules as nondisabled workers, were subject to a
different standard of discipline—i.e., they typically re-
ceived counseling in lieu of discipline, except in the most
extreme circumstances. Moreover, in addition to typical
supervision, the clients were provided with access to a
trainer, who assisted them with their training programs
and monitored their progress. Finally, the clients were
provided supplemental support in the form of a work
adjustment program, through which they learned appro-
priate workplace behavior and socialization skills.10
II. THE PRIMARILY REHABILITATIVE STANDARD IS ROOTED
IN THE ACT AND CONGRESSIONAL INTENT
As indicated above, the Board has held that if disabled
individuals are in a “primarily rehabilitative” relationship
with their putative employer, they are not statutory em-
ployees. That approach is consistent with the overall
purpose and aim of the Act. In Section 1 of the Act,
Congress found that the strikes, industrial strife and un-
rest that preceded the Act were caused by the “inequality
of bargaining power between employees who do not pos-
sess full freedom of association or actual liberty of con-
tract and employers who are organized in the corporate
or other forms of ownership . . . .”11 To remove the bur-
den on interstate commerce caused by this industrial un-
rest, Congress extended to and protected the right of em-
ployees, if they so choose, to organize and bargain col-
lectively with their employer,” encouraging the “friendly
adjustment of industrial disputes arising out of differ-
ences as to wages, hours or other conditions. . . .”12 As
explicated more fully below, the Act thus contemplates a
primarily economic relationship between employer and

10 Through this program, the clients’ trainers, supervisors, and refer-
ring agencies were able to discuss and rectify problems experienced by
particular clients in the course of their work, as well as modify the
clients’ training programs.
11 Sec. 1.
12 I Leg. History NLRB 318. See also American Ship Building Co. v.
NLRB, 380 U.S. 300, 316 (1965) (a purpose of the Act is “to redress the
perceived imbalance of economic power between labor and manage-
ment.”); I Leg. History NLRA 15 (remarks of Sen. Wagner, 78 Cong.
Rec. 3443 (March 1, 1934).
BREVARD ACHIEVEMENT CENTER 985
employee, and provides a mechanism for resolving eco-
nomic disputes that arise in that relationship. Thus, if the
relationship is not primarily an economic one, the Act is
not intended to apply.13
The Board and the courts have looked to these Con-
gressional policies for guidance in determining the outer
limits of statutory employee status. In NLRB v. Bell
Aerospace Corp.,14 the Supreme Court held that manage-
rial employees, while not excluded from the definition of
an employee in Section 2(3), nevertheless are not statu-
tory employees. As the Court explained:
[T]he Wagner Act was designed to protect ‘laborers’
and ‘workers,’ not vice-presidents and others clearly
within the managerial hierarchy. Extension of the Act
to cover true ‘managerial employees’ would indeed be
revolutionary, for it would eviscerate the traditional dis-
tinction between labor and management. If Congress
intended a result so drastic, it is not unreasonable to ex-
pect that it would have said so expressly.15
Thus, the Court, in construing Section 2(3), went beyond the
bare language of the Section. The Court considered the
entire Act and its purpose. Although the Court in some
cases held that individuals are employees, and held in other
cases that they are not, the Court has repeatedly instructed
us that the language of Section 2(3) is subject to interpreta-
tion, and that such interpretation must take in account the
overall policies of the Act.16 Our interpretation of Section

13 See WBAI Pacifica Foundation, 328 NLRB 1273 (1999) (“em-
ployee status must be determined against the background of the policies
and purposes of the Act. . . . The vision of a fundamentally economic
relationship between employers and employees is inescapable.”). Our
dissenting colleagues say that a “fundamentally economic relationship”
really means only that “the relationship must have at least a basic eco-
nomic component, not necessarily a primary one.” We think that the
Board’s decision in WBAI means what it says. Seattle Opera Assn.,
331 NLRB 1072 (2000), certification affd. 292 F.3d 757 (D.C. Cir.
2002), cited by the dissent, is not to the contrary. The Board there
found employee status with respect to auxiliary choristers who per-
formed alongside regular and alternate choristers and were paid $214
for each production in which they performed. Contrary to the implica-
tion of the dissent, there was no finding in that case that the primary
purpose of the auxiliary choristers was “personal pleasure and satisfac-
tion.” Indeed, the Board pointed to the existence of several indicia of
the economic nature of the auxiliary choristers’ relationship with the
employer. To be sure, the Board rejected the position that employee
status turns on whether the amount of the compensation paid is suffi-
cient to meet the individual’s living expenses. But that says nothing
about the employee status of those who work in a “primarily rehabilita-
tive” relationship, as is the case here.
14 416 U.S. 267 (1974).
15 Id. at 284.
16 See, e.g., NLRB v. Town & Country Electric Co., 516 U.S. 85
(1995) (union organizers are covered by the Act); NLRB v. Yeshiva
University, 444 U.S. 672 (1980) (private university professors with
policy-making authority are excluded from Act’s protection).
2(3) is consistent with this admonition and follows the fun-
damental rule that “a reviewing court should not confine
itself to examining a particular statutory provision in isola-
tion.”17
The Board recently applied these principles in Brown
University, 342 NLRB No. 42 (2004), and found that
graduate student assistants are not statutory employees.
These individuals are admitted to university graduate
school programs and perform supervised teaching and
research as an integral component of their academic pro-
gram. Because these individuals are primarily students,
and their relationship to the university is primarily aca-
demic, rather than economic, the Board concluded that it
would be inconsistent with the purposes of the Act to
find that graduate student assistants are statutory em-
ployees.
The Board’s longstanding rule that it will not assert ju-
risdiction over relationships that are “primarily rehabili-
tative” is consistent with the principles set forth above.
The imposition of collective bargaining on relationships
that are not primarily economic does not further the poli-
cies of the Act. The Act is premised on the view that in
arms-length economic relationships, there can be areas of
conflict between employers and employees that, if the
parties cannot reach agreement, can be resolved through
a contest of economic strength in the collective-
bargaining process if the employees choose to bargain
collectively. This premise is not well suited to a setting
that is not primarily economic but primarily rehabilita-
tive. As the Board noted in Brown, the principles devel-
oped for the industrial setting cannot be “imposed
blindly” in other contexts. NLRB v. Yeshiva University,
444 U.S. 672, 680–681 (1980).
Consistent with their mission and the mandatory re-
quirements of the JWOD Act, entities such as BAC pro-
vide rehabilitation services to disabled workers, includ-
ing the full panoply of support services and care de-
scribed above. They administer their programs, includ-
ing the provision of rehabilitative work opportunities, for
the benefit of their clients, not to maximize profits and
secure an economic advantage. The conflicting interests

17 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–
133 (2000) (“The meaning—or ambiguity—of certain words or phrases
may only become evident when placed in context. It is a fundamental
canon of statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall statutory
scheme. A court must therefore interpret the statute as a symmetrical
and coherent regulatory scheme.”) (citations and internal quotations
omitted). See also Sutherland, Statutory Construction (5th Ed. 1994) §
46.05: “[a] statute is passed as a whole and not in parts or sections and
is animated by one general purpose and intent. Consequently, each part
or section should be construed in connection with every other part or
section so as to produce a harmonious whole. Thus, it is not proper to
confine interpretation to the one section to be construed.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD986
present in traditional, primarily economic employment
relationships are absent here.
III. REVIEWING COURTS HAVE CONSISTENTLY AFFIRMED
THE PRIMARILY REHABILITATIVE STANDARD
Courts consistently have affirmed the validity of the
“typically industrial/primarily rehabilitative” standard
articulated in Goodwill of Denver and Goodwill of Tide-
water, and have reiterated the sound policy reasons un-
derlying that standard. Indeed, when the Board has mis-
applied the “primarily rehabilitative” standard, so as to
find employee status, the courts have reversed the Board
and found nonemployee status.18 As the Eighth Circuit
Court of Appeals explained:
The Wagner-O’Day Act assists projects aiding the
handicapped by providing a ready market and purchase
of the productive efforts engendered by not-for-profit
groups seeking to employ handicapped people. The
Board’s actions and view of its majority [asserting ju-
risdiction in the case before the court] adopts the oppo-
site view of discouraging the formation and operation
of non-profit projects to aid and assist therapeutic and
rehabilitative efforts to employ the handicapped.19
In our decision today, we reaffirm the primarily reha-
bilitative standard and apply it to the facts presented.
IV. APPLICATION OF PRIMARILY REHABILITATIVE
STANDARD TO THIS CASE
Applying the standard set forth in the Goodwill cases
discussed above, we conclude that the markedly similar
facts of this case compel the conclusion that BAC’s rela-
tionship with its disabled clients is primarily rehabilita-
tive and therefore that the clients are not statutory em-
ployees.20
Here, BAC provides training and counseling services
to its disabled clients. A trainer works at BAC’s facility
3 days per week, providing instruction in skills used in
the performance of janitorial and custodial jobs to new
clients and those whose performance has regressed. Al-
though this training emphasizes the skills required for the
specific jobs at BAC, that fact does not detract from the
rehabilitative character of BAC’s program. Goodwill of
Tidewater, 304 NLRB at 768. Moreover, contrary to the
Regional Director’s finding that this job-related training

18 Baltimore Goodwill Industries v. NLRB, 134 F.3d 227 (4th Cir.
1998); Davis Memorial Goodwill Industries v. NLRB, 108 F.3d 406
(D.C. Cir. 1997), denying enf. to 318 NLRB 1044 (1995); Arkansas
Lighthouse for the Blind v. NLRB, supra.
19 Arkansas Lighthouse for the Blind v. NLRB, supra, 851 F.2d at
185.
20 The Regional Director did not discuss the Board’s Goodwill deci-
sions or attempt to distinguish them from the instant case.
is the only training offered by BAC, the record reveals
that it also provides clients assistance with daily living
skills such as check writing, meal preparation, and the
coordination of transportation.
In addition to training, BAC, through a mental health
counselor who works half-days at its facility, provides
counseling and problem-resolution services to BAC’s
clients on an as-needed basis. Further, BAC maintains a
financial arrangement with a mental health care provider
to which it refers some clients for medication checks and
monitoring, pursuant to which BAC pays for necessary
treatment if the client’s insurance does not provide cov-
erage. Although, as the Regional Director noted, the
record does not establish that the counseling and rehabili-
tation services are mandatory, the fact remains that BAC
makes these rehabilitative services available to its dis-
abled clients only. Indeed, it is certainly consistent with
a rehabilitative, rather than profit-seeking, purpose for an
employer to provide funding for the mental health care of
its uninsured or underinsured disabled workers.
In addition to its provision of training and counseling
services, BAC’s application of different disciplinary
standards to the disabled clients and nondisabled em-
ployees evidences the rehabilitative nature of the former
relationship. The uncontradicted testimony of BAC
President Olson indicates that it follows a progressive
disciplinary system with respect to the nondisabled em-
ployees but does not do so with regard to the disabled
clients. Rather, Olson testified that in the event of a
problem with a disabled client’s conduct, the employ-
ment and training coordinators and other professional
staff intervene and attempt to discern both the cause of
the problem and an appropriate solution to correct the
problem. This approach to discipline is suggestive of the
counseling-oriented model of discipline on which the
Board placed significant weight in Goodwill of Tidewa-
ter, supra. Moreover, Olson specifically testified that
BAC would not discipline clients for any disability-
related conduct.
Although the disabled clients work the same hours, re-
ceive the same wages and benefits, and perform the same
tasks under the same supervision as the nondisabled em-
ployees, they work at their own pace,21 and performance

21 Contrary to our dissenting colleagues’ contention, the record does
not contradict President Olson’s testimony that the disabled clients are
not subject to production standards. Although the leadpersons testified
that the disabled clients are able to complete their assignments by the
end of the day, there is no indication that they are required to do so, or
that they would be subject to adverse consequences if they failed to do
so. Indeed, when asked what would happen if a disabled client failed to
complete his/her work by the end of the day, leadperson Smith effec-
tively conceded that she didn’t know, as “that [had] never occurred” on
her team. Thus, there is no inconsistency between Smith’s remarks and
BREVARD ACHIEVEMENT CENTER 987
problems are dealt with through additional training rather
than discipline.22 These policies support a determination
that the relationship between BAC and its clients is pri-
marily rehabilitative, not motivated principally by eco-
nomic considerations.
Finally, we find, contrary to the Regional Director, that
the absence of precise evidence as to each disabled cli-
ent’s tenure of employment does not militate against a
finding that the Employer’s program is rehabilitative in
nature. The JWOD Act under which BAC operates re-
quires that it evaluate its clients for suitability for private
employment annually, and BAC presented unrebutted
testimony that its clients “routinely” make that transition.
That some clients remain with BAC for a period of sev-
eral years (while others move on within months), sup-
ports the rehabilitative quality of BAC’s program. Some
disabled individuals (e.g., those with more severe dis-
abilities) may require more training or, simply, more
repetitive experience, and/or more counseling in working
with others and attending to their daily living needs be-
fore they can leave the sheltered atmosphere BAC pro-
vides.
Response to the Dissent
Our dissenting colleagues say that our decision today
is “outside the mainstream” and accuse us of ignoring
Supreme Court precedent. They assert that we have re-
written the statutory definition of employee status and
“created” an exemption for disabled workers in voca-
tional rehabilitation programs, thereby segregating dis-
abled workers, and relegating them to the economic side-
lines and second class status. These broad assertions are
as unfair as they are untrue.
In making these accusations, our colleagues labor
mightily to obscure the fact that long-standing precedent
has firmly established the “typically industrial—
primarily rehabilitative” standard that we apply today.
We have rewritten nothing, and we have created nothing;
we have done no more than faithfully apply this well-
established standard to the facts presented in this case.
The dissent attempts to undermine the validity of that
standard by claiming that it has been subject to “dra-
matic” and “unexplained” shifts over time. We do not
agree with this characterization. Although the emphasis
may have shifted from the putative employer to the puta-

Olson’s uncontradicted testimony that BAC does not hold its disabled
clients to specific production standards, in recognition of the fact that
“there [are] going to be some days when [the clients aren’t] performing
to the best of their ability” and that, at times, they may need some assis-
tance “to get them back on track.”
22 One of BAC’s leadpersons also testified that, as a general matter,
she tends to check the work of the disabled individuals more frequently
than that of the nondisabled workers.
tive employee, the unbroken principle is that the relation-
ship is not subject to Board jurisdiction. No amount of
rhetoric can disguise the simple fact that the Board has
never in its history asserted jurisdiction over the primar-
ily rehabilitative relationships that are the subject of this
case. It is our colleagues’ proposal to jettison that con-
sistent position, not the evolution over time of the Good-
will standard, which would work a dramatic change in
the law.
In this regard, we stress again that the primarily reha-
bilitative standard has never been successfully chal-
lenged in the courts. Our colleagues cite Cincinnati
Assn. for the Blind v. NLRB, 672 F.2d 567 (6th Cir.
1982), cert. denied 459 U.S. 835 (1982) and NLRB v.
Lighthouse for the Blind of Houston, 696 F.2d 399 (5th
Cir. 1983) as instances in which reviewing courts have
refused to find that the Board lacks jurisdiction over dis-
abled workers of a sheltered workshop. But in each of
these cases, the Board found, and the court agreed, that
the relationship was not primarily rehabilitative. They
therefore provide no support for the dissent’s position
that statutory employee status exists where, as here, the
relationship is primarily rehabilitative.23 In these cir-
cumstances, as noted above, the courts have reversed the
Board and found that “substantial evidence in the record
as a whole does not support the Board’s finding that the
severely disabled workers in the bargaining unit were
‘employees’ as defined in the Act.”24 That is, the Board
failed properly to apply the primarily rehabilitative stan-
dard.
Our dissenting colleagues rely on NLRB v. Town &
Country Electric, 516 U.S. 85 (1995), and Sure-Tan v.
NLRB, 467 U.S. 883 (1984), to support their contention
that the absence of an express exclusion in Section 2(3)
for disabled individuals working in a rehabilitative set-
ting mandates a finding that they are statutory employ-
ees. As we have previously explained above, the Board

23 In finding that the Board properly asserted jurisdiction over the
individuals at issue in those cases, the courts necessarily rejected the
employers’ contention that Congress intended an absolute exclusion of
sheltered workshops from the Board’s jurisdiction. See Lighthouse for
the Blind of Houston, supra, 696 F.2d at 404 (rejecting contention that
Congress “intended to exclude sheltered workshops, such as the Light-
house, per se from the [Act]”) (emphasis in original); Cincinnati Assoc.
for the Blind, supra, 672 F.2d at 571–572 (refusing to find “a blanket
exemption from the Act for all sheltered workshops”). Contrary to the
dissent’s assertion, however, those cases do not establish that “any”
exclusion from the Act’s jurisdiction for sheltered workshops is inap-
propriate. Both courts cited with approval the Board’s typically indus-
trial/primarily rehabilitative standard for determining when jurisdiction
is appropriate. Indeed, the court in Cincinnati Association for the Blind
found that Congress’ failure to alter the Board’s typically indus-
trial/primarily rehabilitative standard “suggests that it is satisfied with
the present state of affairs.” 672 F.2d at 571–572.
24 Baltimore Goodwill Industries v. NLRB, supra, 134 F.3d 227, 230.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD988
and the courts do not interpret statutory provisions in
isolation from the statutory text in which they are found,
nor do they turn a blind eye to the Congressional purpose
behind Federal laws. We do not “second guess” Con-
gress. We carry out its intent. In our recent decision in
Brown, we stated:
[i]n both Town & Country and Sure-Tan, the individu-
als found to be employees worked in fundamentally
economic relationships. Moreover, and consistent with
our approach [both in Brown and here], the Court in
both cases examined the underlying purposes of the
Act in determining whether paid union organizers and
illegal aliens, respectively, were statutory employees.
We have examined and rely upon those same statutory pur-
poses in determining that disabled individuals working in a
primarily rehabilitative relationship are not employees
within the meaning of the Act.25
Our dissenting colleagues assert that the longstanding
Board precedent we apply is contrary to a national policy
that seeks to bring disabled workers into the mainstream
of our economic society. They allege that this precedent
relies on paternalistic stereotypes of the disabled. We, of
course, fully embrace the national policy of inclusion,
not outdated stereotypes. Our position, and the precedent
on which it is based, is not, in fact, to the contrary.
First, and most importantly, our position does not ex-
clude disabled people from the protections of the Act on
the basis of their disabilities. We do not exclude these
persons because of any assumption that they are incapa-
ble of engaging in the collective-bargaining process.
We exclude these persons because of the nature of the
relationship to the employer, and because Congress did
not intend that the Act govern that relationship. If we
had a case of disabled individuals whose relationship to
an employer was primarily economic, we would be ap-
plying the full protection of the Act.
Similarly, disabled individuals who successfully com-
plete their rehabilitation relationship can become em-
ployees of an employer and will be protected by the Act.
Indeed, BAC provides a rehabilitative means for its cli-
ents to eventually enter into jobs in the mainstream of

25 Contrary to the dissent, our decision today is also consistent with
the Board’s recent decision in Alexandria Clinic, 339 NLRB No. 162
(2003), which considered whether a union satisfied Sec. 8(g)’s 10-day
strike notice requirement when it issued a 10-day notice, but deliber-
ately delayed the start of the strike for 4 hours after the time specified
in the notice. Sec. 8(g) contains detailed requirements for strike notices
at healthcare facilities, and the Board properly relied on those explicit
statutory provisions in concluding that the notice in Alexandria Clinic
was deficient. Sec. 2(3), by contrast, contains no detailed provisions
for determining statutory employee status. That issue, therefore, must
be examined in the context of the Act’s overall purpose.
economic society. While the clients are in that rehabili-
tative program, the emphasis is on rehabilitation, so that
the transition to regular employment can come about
swiftly and effectively. The imposition of collective
bargaining at the rehabilitative stage could interfere with
the rehabilitation process itself, and thereby delay the
day when the clients can enter into the mainstream of
economic society. Given a long history of not injecting
collective bargaining into the rehabilitation process, we
are unwilling to suddenly change course and possibly
place that process at risk.
To take cognizance of the effect that collective bar-
gaining may have on a rehabilitation-services provider’s
ability to provide the best possible services to its disabled
clients is not to act based on stereotypes. Applying the
Act to primarily rehabilitative programs, as advocated by
the dissent, may have the unintended effect of interfering
with these federally mandated programs. Because col-
lective bargaining could constitute a harmful intrusion on
the rehabilitative purpose of those programs, assertion of
the Board’s jurisdiction would work at cross purposes to
the programs that the dissent claims to be advancing.
Additionally, Congress is undoubtedly well aware of
the Board’s longstanding refusal to apply the statute to
primarily rehabilitative work settings. Although Con-
gress has not hesitated to correct the Board in the past
when it has departed from applying the Act as Congress
intended it, it has not done so here. “That it has not yet
done so suggests that it is satisfied with the present state
of affairs.” Cincinnati Assn. for the Blind v. NLRB, supra,
672 F.2d at 572. See also American Totalisator, 243
NLRB 314 (1979), affd. 708 F.2d 46 (2d Cir. 1983), cert.
denied 464 U.S. 914 (1983) (jurisdiction over dog racing
tracks) (“[a]bsent an indication from Congress that the
Board’s refusal to assert jurisdiction is contrary to con-
gressional mandate, we are not persuaded that we should
exercise our discretion to reverse our prior holdings on
this issue.”).
Finally, our dissenting colleagues say that BAC’s rela-
tionship with its disabled clients is not primarily rehabili-
tative, because they do the same work as nondisabled
employees under the same supervision and for the same
pay, are held to the same production standards, are sub-
ject to discipline for misconduct unrelated to their dis-
ability, and are not required to attend counseling or reha-
bilitation sessions. Our colleagues’ position is unpersua-
sive on each point.
The Board has previously found the primarily rehabili-
tative standard was satisfied even where clients worked
closely with nondisabled workers and shared common
supervision, wages, and benefits, and similar working
hours. See Goodwill Industries of Tidewater, supra.
BREVARD ACHIEVEMENT CENTER 989
Significantly, in Goodwill of Tidewater, as here, em-
ployee status was not found even though the clients were
subject to discipline in extreme cases, because the stan-
dard for discipline was fundamentally different and the
emphasis was on counseling when problems arose.26
Likewise, the Board found that the provision of counsel-
ing services similar to those provided by BAC was evi-
dence of a primarily rehabilitative relationship without
requiring proof that acceptance of those services was
mandatory. 27
On the other hand, the Board did rely on precisely the
factors cited by the dissent as a basis for finding em-
ployee status in Davis Memorial Goodwill, supra and
Baltimore Goodwill Industries, supra. Those findings
were, of course, rejected by the D.C. and Fourth Circuit
Courts of Appeals, respectively. Our dissenting col-
leagues cite no case in which the Board, with court ap-
proval, has found employee status on facts similar to
those here. Our colleagues’ apparent belief that such a
finding would be embraced by a reviewing court here is
contrary to the record in the courts.
Conclusion
For all the foregoing reasons, and because we find this
case factually similar to the Board’s prior decisions in
Goodwill of Tidewater and Goodwill of Denver, we con-
clude that BAC’s relationship with its disabled clients is
primarily rehabilitative in nature and, therefore, that the
disabled clients are not statutory employees. Accord-
ingly, we remand this case to the Regional Director for
further appropriate action consistent with this decision.
MEMBER LIEBMAN AND MEMBER WALSH, dissenting.
Modern Federal law and policy have moved steadily
toward assuring disabled persons the same opportunities
available to everyone else in our society, including the
chance to participate fully in the workplace.1 The most

26 See also Goodwill of Denver, supra (same; disabled commissary
workers who did not come to work or ate commissary food discharged).
27 As to production standards, see fn. 20 supra.
1 See Robert Silverstein, “Emerging Disability Policy Framework:
A Guidepost for Analyzing Public Policy,” Center for the Study and
Advancement of Disability Policy, 85 Iowa L. Rev. 1691, 1695–1696
(2000); Jonathan C. Drimmer, “Cripples, Overcomers, and Civil
Rights: Tracing the Evolution of Federal Legislation and Social Policy
for People with Disabilities,” 40 U.C.L.A. L. Rev. 1341, 1379 (1993);
Mark C. Weber, “Exile and the Kingdom: Integration, Harassment, and
the Americans with Disabilities Act,” 63 Md. L. Rev. 162, 173–174
(2004); see also Consolidated Appropriations Act of 2001, Pub. L. No.
106-554, 114 Stat. 2763 (2000) (creating the Office of Disability Em-
ployment Policy in the Department of Labor to further the “objective of
eliminating barriers to the training and employment of people with
disabilities”); Office of the President, New Freedom Initiative (Feb.
2001) (reaffirming that a goal of federal policy is the realization of
complete equality and full workplace and community integration for
disabled individuals).
obvious expression of this trend is the Americans with
Disabilities Act (ADA),2 which has been reaffirmed by
more recent legislative and Presidential initiatives.3 This
case presents the Board with the perfect opportunity to
revisit longstanding precedent governing disabled work-
ers4 in light of a legal and policy landscape that has
evolved dramatically in the last 15 years. We would
abandon doctrines that were based on outdated notions
about the place of the disabled in society. Sadly, the
Board majority chooses to remain outside the main-
stream. Our colleagues understandably bristle at that
characterization, but it is accurate. By excluding dis-
abled workers from the protections of the National Labor
Relations Act because they may also receive rehabilita-
tive services from their employers, the majority contin-
ues the needless segregation of those workers.
In this case, the Employer’s disabled janitors easily
meet the statutory definition of “employee.” Section
2(3) of the Act provides that “[t]he term ‘employee’ shall
include any employee.” This definition “‘reiterate[s] the
breadth of the ordinary dictionary definition’ of that
term, so that it includes ‘any person who works for an-
other in return for financial or other compensation’”—the
traditional common-law test of employee status. NLRB
v. Kentucky River Community Care, Inc., 532 U.S. 706,
711 (2001) (quoting NLRB v. Town & Country Electric,
Inc., 516 U.S. 85, 90 (1995)). The Employer’s disabled
janitors fall well within this broad definition. They work
7 a.m. to 3:30 p.m., Monday through Friday, performing
janitorial work for the Employer in exchange for an
hourly wage.
The majority’s decision to exclude the disabled jani-
tors from the coverage of the Act is not a product of the
statutory language. Rather, it is a product of the major-
ity’s rigid adherence to the Board’s “typically industrial-
primarily rehabilitative” analysis, a policy-based ap-
proach that the Board has used to rewrite the plain lan-
guage of the Act, something that our colleagues have
decried in other circumstances.5
Worse, the decision is bad policy. It means that the
Employer’s disabled workers have no protection under
the Act. Not only have they been foreclosed from collec-
tive bargaining, they also have been exposed to disci-
pline and discharge for engaging in protected concerted
activity. Unlike their nondisabled coworkers, the Em-
ployer’s disabled workers may be fired for even inquir-
ing about their workplace rights. Far from integrating

2 42 U.S.C. § 12101 et seq. (1990).
3 See discussion in sec. II.B., infra.
4 See Goodwill Industries of Denver, 304 NLRB 764 (1991), and
Goodwill Industries of Tidewater, 304 NLRB 767 (1991).
5 See Alexandria Clinic, 339 NLRB No. 162 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD990
these disabled individuals into the workplace, the Board
has segregated them, and many others like them, into
second-class status.
Below, we address these points in greater detail. First,
we show that the plain language of the Act requires a
finding that the disabled janitors are “employees.” Sec-
ond, we explain why the majority’s decision ignores that
plain language, invades the legislative arena, and contra-
venes contemporary Federal policy regarding disabled
workers. Last, we demonstrate that the majority’s deci-
sion is flawed even on its own terms.
I. THE EMPLOYER’S DISABLED WORKERS
ARE STATUTORY EMPLOYEES
Section 2(3) commands that “[t]he term ‘employee’
shall include any employee.” There is no ambiguity. As
noted by the Supreme Court, the “breadth of § 2(3)’s
definition is striking: the Act squarely applies to ‘any
employee.’” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891
(1984). The scope of Section 2(3) is circumscribed only
by the narrowly defined categories of workers expressly
exempted from the Act’s coverage. See Sure-Tan, supra
at 891–892. Accordingly, there are only two relevant
questions: (1) are the Employer’s disabled janitors “any
employee[s]”; and (2) if so, are they nonetheless ex-
pressly exempted from the Act’s coverage?
The Supreme Court has made clear that the first ques-
tion is governed by the common-law agency doctrine of
the traditional master-servant relationship. See NLRB v.
Town & Country Electric, Inc., 516 U.S. 85, 94 (1995).
Thus, an “employee” is one who performs services for
another, under the other’s control, and in return for com-
pensation. See id. at 90–91, 93–95. Interpretation of the
term in this manner comports with the ordinary diction-
ary definition of an “employee.” See Kentucky River,
supra, 532 U.S. at 711.
The second question recognizes that Section 2(3) ex-
pressly exempts several classes of workers from the
Act’s coverage: agricultural laborers, domestic servants,
individuals employed by a parent or spouse, independent
contractors, supervisors, and employees covered by the
Railway Labor Act. An individual who falls into an ex-
cluded class is not covered by the Act, even though she
otherwise meets the definition of “employee.”
Applying these principles, it is clear that the Em-
ployer’s disabled janitors are statutory employees be-
cause they easily come within the common-law meaning
of the term “employee,” and they are not specifically
excluded from the Act’s coverage.
A. Facts6
The Employer provides rehabilitation and support ser-
vices to disabled persons. The focus here is on one of
the Employer’s vocational programs, the “NISH” pro-
gram.7 Pursuant to a NISH contract, the Employer, since
March 1997, has provided janitorial services at the Cape
Canaveral Air Station. The Employer’s work force at the
Station includes a project manager, an assistant project
manager, a quality manager, a quality assistant, five non-
supervisory leadpersons, and approximately 60 rank-and-
file workers. Typically, each leadperson is assigned a
team of 8 to 12 workers, the majority of whom are dis-
abled.
The disabled men and women who work for the Em-
ployer are, on average, 35 to 40 years old. Many are
mentally disabled or have a mental illness, but others
have only a physical disability, such as deafness (D&DE
10; Tr. 57–58).8 The Employer does not provide the dis-
abled workers with housing. Nor does the Employer
provide the disabled workers with transportation to or
from work. They all drive or take public transportation.
The Employer’s disabled and nondisabled janitors
work side-by-side. They earn the same hourly wage and
benefits, and have the same working hours. The disabled
and nondisabled janitors also work under the same su-
pervision, and are subject to the same production and
quality standards.9 The disabled janitors are subject to
discipline as well.10

6 Citations to the Regional Director’s July 27, 2000 Decision and Di-
rection of Election are shown as “D&DE __.” Citations to the tran-
script of the hearing are shown as “Tr. __.”
7 NISH, formerly known as the National Institute for the Severely
Handicapped, is a Federal agency that assists nonprofit organizations to
obtain contracts with the Government pursuant to the Javits-Wagner-
O’Day Act (the JWOD Act). 41 U.S.C. § 46 et seq. Under the JWOD
Act, the Government awards contracts to nonprofits through a noncom-
petitive bidding process. To qualify for such a contract, an employer
must document that at least 75 percent of its nonsupervisory employees
are individuals not capable of “independently obtaining and holding a
job in a competitive work environment” at that time.
8 Although the Employer’s president and CEO, Dayle Olson, testi-
fied that the Employer maintains documentation that each disabled
worker is “severely” disabled, Olson was unaware of the actual diagno-
ses for most of the disabled workers (D&DE 9-10). In addition, the
Employer did not introduce the alleged documentation into evidence.
Obviously, the Employer has a clear incentive to label as “severely
disabled” as many of its workers as possible.
9 The record contradicts CEO Olson’s bare assertion, accepted by the
majority, that the disabled janitors are not subject to the same produc-
tion and quality standards as the nondisabled janitors. As far as pro-
duction, Leadpersons Al Griffith, Linda Coelho, Valerie Smith agreed
that the disabled janitors generally are assigned the same amount of
work as the nondisabled janitors (Tr. 93, 108, 124), and that the dis-
abled janitors do just as much work as the nondisabled janitors (Tr. 96–
98, 115, 124-125). Not all the disabled janitors (or all the nondisabled
janitors for that matter) work at the same pace, but the record shows
that they all are expected to complete their assignments by the end of
BREVARD ACHIEVEMENT CENTER 991
Further, training and rehabilitation activities are not a
regular or significant component of the disabled janitors’
daily routine. The disabled janitors do not attend special
classes during the day. Nor do they routinely leave work
for medical or counseling appointments. The Employer
provides a part-time trainer, but the training is limited to
the performance of janitorial tasks, e.g. how to strip and
wax floors. There also is a part-time mental health coun-
selor available to the disabled janitors, but the disabled
janitors are not required to meet with the counselor. Ad-
ditionally, the Employer has arranged for the disabled
janitors to receive assistance from “Circles of Care,” a
local provider of mental health and other services. CEO
Olson claimed that the Employer also offers financial aid
to disabled workers. However, Olson did not provide
any specific evidence regarding the number of, or the
extent to which, disabled workers use the mental health
services or receive financial assistance (D&DE 8).11
B. Analysis
On these facts, the Act mandates a finding that the
Employer’s disabled janitors are statutory employees.
First, they satisfy the ordinary definition of “employee.”

the day (Tr. 124–125). Moreover, to the extent the leadpersons check
the disabled janitors’ work more frequently than the nondisabled jani-
tors’ work, Leadperson Smith explained that the reason is simply that
the nondisabled workers are more experienced and therefore know the
job better (Tr. 124, 134–135).
Similarly, all the Employer’s rank-and-file workers must meet the
same quality standards. Leadperson Coelho testified, “They’re required
to do the same as I do, not just the nonhandicapped. Everybody out
there cleans the same way” (Tr. 108). Leadperson Smith agreed that
the disabled janitors “have to meet the same standards of work” (Tr.
123). As Smith explained, the Employer’s Quality Assurance Manager
inspects the employees’ work and, if a building fails an inspection, then
Smith directs the responsible employee, disabled or not, to redo the
work (Tr. 130–131). CEO Olson actually corroborated Smith’s account
(Tr. 66–67). He characterized this as “part of the training of learning to
be responsible” (Tr. 67). However, in Olson’s view, the disabled jani-
tors are engaged in “training” just by performing their routine job as-
signments, such as mopping floors (Tr. 60-61). Olson did not explain
why the nondisabled janitors’ performance of the same routine tasks
apparently is just “work.”
10 There is no dispute that the Employer would not discipline an em-
ployee for a disability-related behavior. See Title I of the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. Instead, the staff at-
tempts to ascertain the behavior’s cause, after which the Employer
endeavors to provide the appropriate corrective action (e.g., medication
adjustment). However, the record is clear: the disabled janitors are
subject to discipline for behavior that is unrelated to their disabilities.
Olson himself drew this distinction with the following example: “If
you’re just sleeping in because you don’t want to come to work, that’s
different than not being able to get up because my medication isn’t
working” (D&DE 9; Tr. 64).
11 The majority asserts that Circles of Care assists the disabled work-
ers in such daily-living activities as shopping, meal planning, and the
payment of bills. In fact, Olson merely “guessed” that this was the case
and was unable to provide a specific basis for his guesswork (D&DE 8
fn. 15).
The disabled janitors perform services for the Employer,
under the Employer’s direction and control, in exchange
for compensation, an hourly wage equivalent to that
earned by their nondisabled coworkers.12 Second, the
disabled janitors do not fall within any of the categories
of workers specifically exempted from the Act’s cover-
age.13 Accordingly, they are statutory employees.
This conclusion follows the statutory language and is
consistent with the principle that economic activity need
not be the sole, or even dominant, purpose of a cogniza-
ble employment relationship. The majority errs in assert-
ing that, “if the relationship is not primarily an economic
one, then the Act is not intended to apply.” All the Act
requires is that there be an economic aspect of the rela-
tionship. Compare Seattle Opera Assn., 331 NLRB
1072, 1073 (2000), certification affd. 292 F.3d 757 (D.C.
Cir. 2002) (paid auxiliary choristers in community opera
were statutory employees, notwithstanding that their
purpose in singing was primarily for personal pleasure
and satisfaction as opposed to earning a living) with
WBAI Pacifica Foundation, 328 NLRB 1273, 1274
(1999) (unpaid radio station staff were not statutory em-
ployees in absence of “at least a rudimentary economic

12 Notably, the Internal Revenue Service utilizes the same common
law test to determine whether disabled individuals who are working in
sheltered workshops are ‘employees’ for Federal employment tax pur-
poses. See Rev. Rul. 65-165, 1965-1 C.B. 446 (1965). Moreover, the
Service has generally concluded that, once such disabled individuals
have completed any initial training period, they are employees for
Federal employment tax purposes while they are working in the shel-
tered environment awaiting placement in regular employment. See id.;
Priv. Ltr. Rul. 9809831 (Feb. 27, 1998), and Priv. Ltr. Rul. 9804023
(Jan. 23, 1998); but see Prv. Ltr. Rul. 9417008 (Apr. 29, 1994) (dis-
abled participants in sheltered workshop program were not employees
where they earned subminimum wages, did not support themselves
with their earnings, and the services they performed did not displace
regular employees).
13 The majority points out that “managerial employees” are not con-
sidered to be statutory employees, even though they are not expressly
exempted from Sec. 2(3). The analogy is flawed for two reasons. First,
managerial employees represent a special category of workers for
which there exists express legislative history indicating Congress’
intent to exclude them from the Act. Indeed, the Supreme Court has
held that the legislative history of the 1947 Taft-Hartley amendments
indicates that managerial employees were “regarded as so clearly out-
side the Act that no specific exclusionary provision was thought neces-
sary.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 283 (1974). There
simply is no comparable legislative history regarding disabled workers
employed in vocational rehabilitation programs. Second, as the Court
observed in Bell Aerospace, the reason Congress did not intend the Act
to cover managerial employees is that it would “eviscerate the tradi-
tional distinction between labor and management.” 416 U.S. at 284.
Plainly, this concern is not implicated here, where the danger lies not in
blurring the line between labor and management but in creating “a
subclass of workers without a comparable stake in the collective goals
of their [non-disabled] co-workers, thereby eroding the unity of all the
employees and impeding effective collective bargaining.” Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 892 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD992
relationship”); see also, e.g., NLRB v. Town & Country
Electric, Inc., 516 U.S. 85 (1995) (paid union organizers
are statutory employees, even though their primary pur-
pose is to organize the employer’s workers); Brown Uni-
versity, 342 NLRB No. 42, slip op. at 11 (2004) (Mem-
bers Liebman and Walsh, dissenting). Therefore, where
Board precedent speaks of a “fundamentally economic
relationship,” see, e.g., WBAI Pacifica, supra at 1275, it
means only that the relationship must have at least a ba-
sic economic component, not necessarily a primary one.
Thus, even assuming that the Employer’s disabled jani-
tors actually receive rehabilitation services from the Em-
ployer, they still are Section 2(3) employees.
Finding the disabled janitors to be statutory employees
does serve the overall purposes of the Act. As the major-
ity acknowledges, the Act “was designed to protect ‘la-
borers’ and ‘workers.’” NLRB v. Bell Aerospace Co.,
416 U.S. 267, 284 (1974). The Employer’s disabled
janitors, the supposed “clients,” work 40-hour weeks
cleaning toilets and floors and performing other janitorial
work at the Employer’s direction in exchange for an
hourly wage. They are workers.
Significantly, moreover, the disabled janitors actually
are experiencing the same “conflicting interests” present
in what the majority calls “primarily economic employ-
ment relationships.” In questioning Union President
Hunt about how collective bargaining might benefit
them, the disabled janitors asked whether the Union
could negotiate for more full-time positions, whether the
Union could bargain for better health insurance, and
whether the Union could obtain mileage reimbursement
for employees who used their personal vehicles at work
(Tr. 145). Needless to say, these interests mirror those
routinely in conflict between management and labor gen-
erally.14
For all of these reasons, the Employer’s disabled jani-
tors are statutory employees.
II. THE MAJORITY’S DECISION IGNORES THE PLAIN LAN-
GUAGEOF THE ACT, INVADES THE LEGISLATIVE ARENA,
AND CONTRAVENES CONTEMPORARY FEDERAL POLICY
Nevertheless, the majority says the Employer’s dis-
abled janitors are not “employees,” without truly recon-
ciling Supreme Court precedent confirming the plain,
common-law meaning of the statutory language or point-
ing to any pertinent legislative history. Instead, the ma-
jority adheres to an outdated policy-based approach, the
“typically industrial-primarily rehabilitative” analysis.

14 See, e.g., SEIU, Employers Grapple With Health Care In Talks on
Contract for 4,000 D.C. Janitors, Daily Labor Report, Apr. 24, 2003, at
A-6; Elizabeth Walpole-Hofmeister, UPS Obligated to Create 2,000
Full-Time Jobs Under 1997 IBT Agreement, Arbitrator Rules, Daily
Labor Report, Feb. 18, 2000, at A-1.
Applying this analysis, the majority concludes that the
disabled janitors are not employees because their rela-
tionship with the Employer is primarily rehabilitative.
The majority’s analysis is impermissible under the Act
and is flawed on its own terms.
A. The “Typically Industrial-Primarily Rehabilitative”
Analysis Has No Basis in the Statute
The “typically industrial-primarily rehabilitative”
framework has no foundation in the Act. Section 2(3)
simply contains no exemption based on an employee’s
receipt of rehabilitative assistance from his employer.
Further, the evolution of the typically industrial-
primarily rehabilitative model confirms that it was never
intended to determine disabled workers’ status under
Section 2(3). The earliest Board cases involving shel-
tered workshops actually took for granted that the dis-
abled workers were statutory employees. See, e.g., Shel-
tered Workshops of San Diego, Inc., 126 NLRB 961
(1960) (assuming that disabled workers were statutory
employees but declining to assert jurisdiction over the
employer because of its dominant charitable purpose).
In later cases, the Board turned its attention to the
manner and extent to which the rehabilitative aspects of
the employer’s relationship with its disabled workers
distinguished the relationship from the typical employ-
ment relationship. But, even then, the Board did not
purport to exclude the disabled workers from Section
2(3) coverage. In Goodwill Industries of Southern Cali-
fornia, 231 NLRB 536 (1977), for instance, the Board
exercised its discretion not to assert its statutory jurisdic-
tion where, among other things: the employer’s focus
was rehabilitating and preparing clients for work in pri-
vate industry, rather than producing a product for profit;
the employer eschewed discipline of the clients; and the
employer provided the clients with medical, social, and
legal counseling services. Id. at 537. The Board still
assumed the clients were statutory employees, but exer-
cised its discretion not to assert jurisdiction over the em-
ployees out of fear that collective bargaining would im-
pede the employer’s rehabilitative objectives. Id. at
538.15

15 Specifically, the Board stated:
This unusual employer-client relationship presents us with that rare,
possibly nonrecurring, instance where an employer’s concern for the
welfare of his employees competes with, and in some sense displaces,
the union’s ordinary concern of employee well-being. . . . To permit
collective bargaining in this context is to risk a harmful intrusion on
the rehabilitative process by the Union’s bargaining demands. . . . The
collective-bargaining process, in short, is likely to distort the unique
relationship between Employer and client and impair the Employer’s
ability to accomplish its salutary objectives.
Id. at 537–538.
BREVARD ACHIEVEMENT CENTER 993
Subsequently, in a series of cases involving blind and
visually-impaired workers, the Board distinguished
Goodwill of Southern California and asserted jurisdiction,
but dramatically shifted its analytical framework. See
Cincinnati Assn. for the Blind, 235 NLRB 1448 (1978),
certification affd. 244 NLRB 1140 (1979), enfd. 672 F.2d
567 (6th Cir. 1982), cert. denied 459 U.S. 835 (1982);
Lighthouse for the Blind of Houston, 244 NLRB 1144
(1979), certification affd. 248 NLRB 1366 (1980), enfd.
696 F.2d 399 (5th Cir. 1983); Arkansas Lighthouse for the
Blind, 284 NLRB 1214 (1987), enf. denied 851 F.2d 180
(8th Cir. 1988). Rather than relying on the characteristics
of the employer’s relationship with its blind workers to
decide whether, in its discretion, to assert jurisdiction over
the workers, the Board, without explanation, cited these
same factors for the purpose of resolving whether it had
statutory jurisdiction in the first instance; that is, whether
the blind workers were “employees.” See Lighthouse for
the Blind of Houston, 244 NLRB at 1147; Arkansas Light-
house, 284 NLRB at 1216.
The Board completed the unexplained conversion of the
“typically industrial-primarily rehabilitative” analysis from
a test for deciding when to exercise its discretionary juris-
diction to a determinant of whether disabled workers were
statutory employees at all in Goodwill Industries of Den-
ver, 304 NLRB 764 (1991), and Goodwill Industries of
Tidewater, 304 NLRB 767 (1991)—the cases underlying
the Board’s decision today. In those decisions, involving
union attempts to represent disabled workers, the Board
announced that its assessment of the propriety of the un-
ions’ petitions would rest entirely on the determination of
whether the disabled clients were employees within the
meaning of the Act. Goodwill of Denver, 304 NLRB at
765; Goodwill of Tidewater, 304 NLRB at 767.16
The Board thus proceeded to assess the Section 2(3)
status of the disabled workers on the basis of the charac-
teristics of their relationship with their employers. In
doing so, the Board for the first time articulated the stan-
dard that had evolved over the course of several decades
of decisional law: If an employer’s relationship with its
disabled workers is guided primarily by business consid-
erations, such that it can be characterized as “typically
industrial,” the workers will be found to be statutory em-
ployees; alternatively, if the relationship is “primarily
rehabilitative” in nature, the individuals will not be found
to be employees. Goodwill of Denver, 304 NLRB at
765; Goodwill of Tidewater, 304 NLRB at 768. But the

16 In Goodwill of Denver, the Board made clear that, to the extent
Goodwill of Southern California suggested that the Board would de-
cline to assert jurisdiction over particular employees solely because of
their employer’s “worthy rehabilitative purpose,” it was no longer good
law. 304 NLRB at 765 fn. 7.
Board still did not explain how the standard could be
used to supplant the plain language of the Act, or why.
The upshot is that the Board avoided Section 2(3) us-
ing a framework that has no basis in the language of the
Act and that developed purely as a guide to the Board’s
exercise of its assertion of discretionary jurisdiction over
employers of disabled workers and, later, over the dis-
abled workers themselves. This was error then, and it is
error today. It is now clear, in light of the plain language
of Section 2(3) and recent Supreme Court precedent, that
there is no legitimate basis for excluding from the broad
scope of Section 2(3) disabled workers based solely on
their participation in rehabilitative activities. Accord-
ingly, we would overrule Denver and Tidewater.
Finally, it is significant that the “typically industrial-
primarily rehabilitative” standard has proven to be un-
workable and unpredictable, leading to different out-
comes in seemingly similar cases.17 This, in turn, has led
to criticism from the courts of appeals,18 confirming our
belief that the better approach here is to simply apply the
statute as written.
B. Rewriting Section 2(3) to Exclude Disabled Workers
Is a Policy Step for Congress and One that Congress
Almost Certainly Would Not Take
This is the second time in recent weeks that the major-
ity has unjustifiably denied a group of workers the right
of self-organization. See Brown University, 342 NLRB
No. 42 (2004). As we pointed out in Brown, absent
compelling indications of Congressional intent, the
Board may not create an exclusion from the Act’s cover-

17 The Board’s application of the standard focuses on several factors,
including: the existence or absence of employer-provided counseling,
training, or rehabilitation services; the existence or absence of produc-
tion standards; the extent to which, and manner in which, the employer
metes out discipline; the applicable terms and conditions of employ-
ment in comparison to those of nondisabled individuals employed at the
same facility); and the average tenure of employment, including the
existence of a job-placement program. Nevertheless, the weight ac-
corded each factor and the appropriate balance among them is not read-
ily discernible, as evidenced by the fact that application of the test has
produced different outcomes in seemingly similar cases. Compare
Goodwill of Denver, supra (finding that disabled workers were not
statutory employees, as a result of their “primarily rehabilitative” rela-
tionship with the employer), and Goodwill of Tidewater, supra (same),
with Davis Memorial Goodwill Industries, 318 NLRB 1044 (1995),
certification affd. 320 NLRB No. 151 (1996), enf. denied 108 F.3d 406
(D.C. Cir. 1997) (finding disabled workers to be statutory employees,
as their relationship with the employer was guided by business consid-
erations).
18 See, e.g., Baltimore Goodwill Industries v. NLRB, 134 F.3d 227
(4th Cir. 1998) (criticizing the Board for failing to adequately distin-
guish its decision from Goodwill of Tidewater and Goodwill of Den-
ver); Davis Memorial Goodwill Industries v. NLRB, 108 F.3d 406
(D.C. Cir. 1997) (same).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD994
age for a category of workers who satisfy the statutory
definition of employee.
In Brown, we found guidance in the Supreme Court’s
decision in NLRB v. Yeshiva University, 444 U.S. 672
(1980), where the Court considered whether university
faculty members at one institution were managerial em-
ployees and so excluded from the Act’s coverage. The
Court observed that it could not
decide this case by weighing the probable benefits and
burdens of faculty collective bargaining. That, after all,
is a matter for Congress, not this Court.
444 U.S. at 690 fn. 29 (citation omitted).
Significantly, other federal courts have been similarly
unwilling “to ‘second guess’ Congress on a political and
philosophical issue” in cases directly relevant to the pre-
sent one. Cincinnati Assn. for the Blind v. NLRB, 672
F.2d 567, 571 (6th Cir. 1982), cert. denied 459 U.S. 835
(1982) (refusing to find exception to Section 2(3) of the
Act for disabled workers of a sheltered workshop); NLRB
v. Lighthouse for the Blind of Houston, 696 F.2d 399,
404 fn. 21 (5th Cir. 1983) (rejecting contention that
Board lacked jurisdiction over disabled employees of
sheltered workshop).19
The majority nevertheless effectively creates an ex-
emption in Section 2(3) for disabled workers in voca-
tional rehabilitation programs. At bottom, the majority’s
rewriting of Section 2(3) results from its view that the
disabled individuals here are not really “working.” The
majority’s overreaching is even more ill-advised because
denying these disabled workers the freedom to decide for
themselves whether they desire collective bargaining—
an opportunity regularly afforded nondisabled workers,
including those who work alongside the disabled em-
ployees here—contravenes contemporary federal policy

19 The majority says these cases “provide no support” for the conclu-
sion that statutory employee status exists even where an employer-
employee relationship is primarily rehabilitative. The majority is
wrong. In Cincinnati Assn. for the Blind, supra, the Sixth Circuit ex-
pressly rejected the employer’s argument that Congress intended to
exclude from the coverage of the Act disabled individuals employed in
sheltered workshops. 672 F.2d at 571–572. Accordingly, the court
refused to “carve out an exception to the plain language of Section
2(3)” for any sheltered workshop, regardless of its therapeutic nature.
Id. To be sure, the court went on to review the Board’s application of
the typically industrial-primarily rehabilitative analysis, but the court
made clear that it was simply deferring to the Board’s “policy,” to the
Board’s “discretion,” to “present Board practice.” Id. (Emphasis
added.) Thus, the case fully supports our position that Sec. 2(3) confers
statutory jurisdiction over all disabled employees of sheltered work-
shops. See also Lighthouse for the Blind of Houston, supra at 404 fn.
21 (agreeing with the Sixth Circuit that no exception in the Act applies
to the employer-employee relationship between a sheltered workshop
and its workers)
to eliminate the barriers to disabled workers’ full partici-
pation in the workplace.
Contemporary federal policies aim to give disabled
workers the same opportunities available to all others in
the workplace. In enacting the ADA, supra, Congress
specifically found, among other things, that:
individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and
limitations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political pow-
erlessness in our society, based on characteristics that
are beyond the control of such individuals and resulting
from stereotypic assumptions not truly indicative of the
individual ability of such individuals to participate in,
and contribute to, society.
42 U.S.C. § 12101(a)(7). In an effort to eradicate those
“stereotypic assumptions,” Congress banned discrimination
against disabled individuals in various settings, including
the workplace. See id. at § 12112. In recent years, Con-
gress and successive Presidential administrations have reaf-
firmed the objectives underlying the ADA and have taken
further steps toward the attainment of those objectives.20
Clearly, guaranteeing equal treatment and opportuni-
ties for disabled persons in the workplace is a fundamen-
tal objective of contemporary federal policy. And it is
equally clear that the Board’s use of the “typically indus-
trial-primarily rehabilitative” framework to deny the
Employer’s disabled workers their Section 7 rights runs
counter to this policy. Indeed, the “typically industrial-
primarily rehabilitative” framework is rooted in the same
dated, stereotypical assumptions about the disabled that
contemporary federal policy seeks to undo.
In Goodwill Industries of Southern California, supra,
the Board observed that the rehabilitative work environ-
ment presents a situation in which the “employer’s con-
cern for the welfare of his employees competes with, and
in some senses displaces, the union’s ordinary concern
for employee well-being.” 231 NLRB at 537. The

20 In 1999, Congress passed the Ticket to Work and Work Incentives
Improvement Act of 1999 (TWWIA), which seeks to improve access
to, and choices among, vocational training and placement services. See
42 U.S.C. § 1320b-19 et seq. On March 13, 1998, President Clinton
issued Executive Order No. 13078, establishing the “National Task
Force on Employment of Adults with Disabilities.” He charged the
Task Force with creating “a coordinated and aggressive national policy
to bring adults with disabilities into gainful employment at a rate that is
as close as possible to that of the general adult population.” In Febru-
ary 2001, President George W. Bush announced the “New Freedom
Initiative,” a compilation of proposals designed to foster the realization
of complete equality and full workplace and community integration for
disabled individuals. Office of the President, New Freedom Initiative
(Feb. 2001); see also Office of the President, New Freedom Initiative, A
Progress Report (Mar. 2004).
BREVARD ACHIEVEMENT CENTER 995
Board expressed concern that “[t]he collective-
bargaining process, in short, is likely to distort the unique
relationship between Employer and client and impair the
Employer’s ability to accomplish its salutary objectives.”
Id. at 537–538.21
The Board’s concerns were questionable at the time
and, today, they are certainly unnecessarily paternalistic
and the product of stereotyped thinking. We should take
this opportunity to recognize that disabled workers are
capable of evaluating the merits of union representation,
and to shed the perception of disabled individuals as be-
ing “different from and inferior to nondisabled people.”22
Advocacy groups, policymakers, and disabled workers
themselves have long fought to dispel this perception,
but the majority rejects their appeals.23
The notion that collective bargaining is not well suited
to the rehabilitative environment is unfounded. There is
no inherent incompatibility between the rehabilitative
process and collective bargaining. See NLRB v. Light-
house for the Blind of Houston, supra, 696 F.2d at 407
(“[t]here is no Congressional policy that collective bar-
gaining is totally inconsistent with rehabilitative activ-
ity”). Indeed, the collective-bargaining process is suit-
able for, and may be successfully adapted to, the rehabili-
tative work environment.24 The majority’s rhetoric about
the “risk” of collective bargaining interfering with the
“rehabilitation process itself” is not only unfounded, it
also smacks of the same stereotypical, paternalistic think-
ing underlying Goodwill of Southern California: “[t]he
collective-bargaining process, in short, is likely to distort
the unique relationship between Employer and client and
impair the Employer’s ability to accomplish its salutary
objectives.” 231 NLRB 536, 537–538 (1977).

21 Although the Board has overruled Goodwill of Southern Califor-
nia to the extent that it held that the Board can decline to assert jurisdic-
tion over disabled workers based solely on their employer’s “worthy”
purpose, the Board has continued to adhere to the underlying rationale
of that case as the basis for finding that disabled workers in “primarily
rehabilitative” relationships are not “employees”.
22 Fred Pelka, “The ABC–CLIO Companion To The Disability
Rights Movement,” 283 (1997) (reviewing criticisms of sheltered
workshops as being, among other things, “‘one of the last bastions of
therapeutic paternalism facing people with disabilities’”).
23 The disabled janitors’ ability to evaluate the merits of union repre-
sentation is demonstrated by their questions to Union President Hunt
about how collective bargaining might benefit them, discussed above.
These are the same questions any nondisabled worker might ask a
prospective collective-bargaining representative.
24 See generally Boston Medical Center, 330 NLRB 152, 165 (1999)
(finding medical house staff to be statutory employees and observing,
“If there is anything we have learned in the long history of this Act, it is
that unionism and collective bargaining are dynamic institutions capa-
ble of adjusting to new and changing work contexts and demands in
every sector of our economy”).
Indeed, there is every reason to believe that participat-
ing in a representation election or collective bargaining
likely would have significant rehabilitative benefits for
disabled workers intent on joining or rejoining the gen-
eral labor market. Disabled employees of sheltered
workshops are supposed to learn decision-making and
interpersonal skills in addition to basic job skills. The
process of learning about and evaluating the advantages
and disadvantages of union representation and collective
bargaining involves these skills. Should such employees
actually select union representation, they might achieve
even greater gains by participating in bargaining, griev-
ance processing, and internal union governance.
Finally, while the majority seeks to explain how pre-
venting disabled workers from organizing a union will
aid their rehabilitation, it never explains why permitting
them to be fired for their efforts is also beneficial. That,
too, is a result of holding that the workers are not statu-
tory employees.
III. THE MAJORITY’S ANALYSIS IS FLAWED ON
ITS OWN TERMS
Even applying the “typically industrial-primarily reha-
bilitative” analysis, the majority’s decision is under-
mined by its failure to critically assess the record.
A. The Burden of Proof
A party seeking to exclude an otherwise eligible em-
ployee from the coverage of the Act bears the burden of
establishing a justification for the exclusion.25 Accord-
ingly, it was the Employer’s burden to justify denying its
disabled janitors employee status. Contrary to the major-
ity’s conclusion, the Employer failed to carry its burden.
B. The Employer Failed to Establish that Its Relationship
with Its Disabled Janitors Is Primarily Rehabilitative
The Employer did not establish that its relationship
with its disabled janitors is more primarily rehabilitative
than typically industrial. What the record actually shows
is that the Employer’s relationship with its disabled jani-
tors is typical of its relationship with its nondisabled jani-
tors, whom no one disputes are statutory employees:

(1) the disabled janitors perform the same tasks,
under the same supervision, and for the same hourly
wage, as the non-disabled janitors;

25 See, e.g., NLRB v. Kentucky River Community Care, Inc., 532
U.S. 706, 711–712 (2001) (party seeking to exclude alleged supervisors
bears burden of proof); Montefiore Hospital and Medical Center, 261
NLRB 569, 572 fn. 17 (1982) (party seeking to exclude alleged manag-
ers must “come forward with the evidence necessary to establish such
exclusion”); BKN, Inc., 333 NLRB 143, 144 (2001) (independent con-
tractors); AgriGeneral, L.P., 325 NLRB 972 (1998) (agricultural em-
ployees).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD996
(2) the disabled janitors are expected to complete
their work assignments to the same extent as, and
perform to the same level of quality as, the non-
disabled janitors;
(3) the disabled janitors are subject to discipline
for misconduct unrelated to their disabilities; and
(4) the Employer neither requires the disabled
janitors to attend any counseling or rehabilitation
sessions, nor provides them with any paid leave be-
yond that provided to non-disabled janitors to attend
medical or other appointments.
Accordingly, even under current precedent, the Employer
has failed to justify excluding the disabled janitors from the
coverage of the Act.
IV. CONCLUSION
The plain language of the Act, recent Supreme Court
precedent, and modern federal policy lead inescapably to
the conclusion that the Employer’s disabled workers are
statutory employees. Rather than allowing the Em-
ployer’s disabled workers to decide for themselves
whether collective bargaining is desirable, the majority
decides for them—and for every disabled worker in a
rehabilitation program. The majority’s assurance that it
would apply the full protection of the Act, “[i]f we had a
case of disabled individuals whose relationship to an
employer was primarily economic,” is illusory. As dem-
onstrated here, the majority is unlikely to find such a
relationship. The majority thus relegates the Employer’s
disabled janitors and all similarly-situated workers to the
economic sidelines, making them second-class citizens
both in society and in their own workplaces.
Because we regard disabled workers as workers, and
nothing less, we dissent.