California Inspection Rating Bureau

National Labor Relations Board - Board Decisions

Aug 22, 1977

231 N.L.R.B. 520 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California Inspection Rating Bureau and Professional
and Clerical Employees, Division of Teamsters
Local No. 856, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 20-CA-I 1192
August 22, 1977
SUPPLEMENTAL DECISION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On August 9, 1976, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding finding that the Respondent had
engaged in and was engaging in unfair practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended, and
ordering the Respondent to cease and desist there-
from and to take certain affirmative action to remedy
such unfair labor practices.
Upon its own motion, the Board decided, on April
5, 1977, to reconsider its Decision and Order and
consider whether the Board has properly asserted
jurisdiction over the operations of the Respondent.
Thereafter, the Respondent and the General Counsel
of the National Labor Relations Board filed state-
ments of position.
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 considered the above-entitled
Decision and Order, the statements of position of the
Respondent and the General Counsel, and the entire
record in this case and has decided to reaffirm its
decision to assert jurisdiction over the Respondent.
I 225 NLRB 870.
2215 NLRB 780 (1974).
3 See, e.g., Rural Fire Protection Company, 216 NLRB 584 (1975); Grey
Nuns of the Sacred Heart, 221 NLRB 1215 (1975); National Maritime Union
of America, AFL-CIO (Puerto Rico Marine Management, Inc.), 227 NLRB
20 (1976): Nichols Sanitation. Inc., 230 NLRB 834 (1977).
In asserting jurisdiction over this Employer, Chairman Fanning is not
relying on the Employer's lack of intimate connection with the State of
California. Rather he relies only on the degree to which the Employer
involved herein retains control over the working conditions of its employees
thus evidencing its capability of engaging in meaningful collective
bargaining. See Chairman Fanning's dissenting opinions in Rural Fire
Protection, Company, supra, and Nichols Sanitation, Inc., supra, and his
concurring opinion in Grey Nuns of the Sacred Heart, supra.
In rejecting the Respondent's jurisdictional defense
in the earlier Decision and Direction of Election,2 the
Board found, inter alia, no merit to the Respondent's
contentions that its operations are exempted from
the Board's jurisdiction because the Respondent was
created by virtue of state statutes and regulations,
and that if the work were not done by the
Respondent it would be done by the State of
California. We set forth in more detail our reasons
for this conclusion.
The Board has never, as contended by the
Respondent, held that merely because a function or
service is mandated by state statutes or legislature
the work in question per se becomes intimately
connected with the state and thereby is exempted
from the Board's jurisdiction. The Board's test in
such cases is an examination of all the factors in the
situation, including the nature of the functions which
have been mandated by the state, whether the
activities concern traditional essential governmental
functions as distinguished from commercial opera-
tions, and the degree of control exercised by the
exempt entity over the operations. 3
The insurance rating activities engaged in by the
Respondent here are similar to commercial enterpris-
es engaged in by employers in the private sector in
other States and are not a universally recognized,
traditional governmental function within the mean-
ing of the cases. The fact that the Respondent has
been established by the state legislature does not
detract from the commercial nature of the operation.
As noted in our Decision and Direction of Election,
the Respondent sells its services to private insurance
companies and not to the State of California, and its
labor relations, personnel practices, and day-to-day
administration are independent of state control.4
Accordingly, we reaffirm the Conclusions of Law
and the Order provided in the Decision and Order in
the above-entitled proceeding.
Cf. Columbia Transit Corporation. 226 NLRB 812 (1976); Chairman
Fanning dissenting. We do not construe the language at fn. 8 of that
decision in which neither Members Jenkins nor Murphy participated, and
Chairman Fanning dissented as establishing a per se principle that functions
created or authorized by state statute thereby become a part of, or integrally
related to, an exempt governmental entity, and we shall adhere to our
established grounds for evaluating such relationship. As noted above,
Chairman Fanning relies only on the extent of control exercised by any
governmental body in determining whether the Board should exercise its
jurisdiction.
4 Cf. Roesch Lines, Inc., 224 NLRB 203 (1976); Embree Buses, Inc., 226
NLRB 714 (1976); Austin Development Center, Inc., 226 NLRB 134 (1976).
231 NLRB No. 75
520