Chicago School & Workshop for the Retarded

National Labor Relations Board - Board Decisions

Sep 8, 1976

225 N.L.R.B. 1207 (N.L.R.B. 1976)

CHICAGO SCHOOL & WORKSHOP FOR THE RETARDED 1207
Chicago School & Workshop for the Retarded and Lo-
cal 329, Service Employees International Union,
AFL-CIO, Petitioner . Case 13-RC-13796
September 8, 1976
DECISION ON REVIEW AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Sheryl G.
Sternberg. After the hearing and pursuant to Nation-
al Labor Relations Board Rules and Regulations,
Series 8, as amended, the Regional Director for Re-
gion 13 issued a Decision and Order dismissing the
petition. The Petitioner filed a request for review,
which was granted by the Board. Thereafter, the Em-
ployer filed a brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds no prejudicial
error was committed. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Petitioner seeks to represent the Em-
ployer's approximately 85 employees engaged in
client contact classifications such as teaching, coun-
seling, social service floor supervision, coordinating,
evaluation, therapy, and maintenance who are em-
ployed at the Employer's six sheltered workshops,
school for children, and residential facility, all locat-
ed within the Chicago area. The Regional Director,
relying principally on the Board's decision in Shel-
tered Workshops of San Diego, Inc., 126 NLRB 961
(1960), concluded that the Employer's activities are
essentially rehabilitative and educational in nature,
focusing on the placement of its developmentally dis-
abled clients in the outside community, and thus are
noncommercial in the generally accepted sense. Ac-
cordingly, he declined to assert jurisdiction over the
Employer. For the following reasons, we find, con-
trary to the Regional Director, that the Employer is a
health care institution within the meaning of Section
2(14) of the Act, and that a question affecting com-
1 The Employer's request for oral argument is hereby denied since the
record, including the Regional Director's Decision, the Petitioner's request
for review, and the Employer's brief adequately present the issues and posi-
tions of the parties
merce exists concerning the representation of certain
employees of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
The following essential facts concerning the
Employer's operation are undisputed by the parties.
Thus, as found by the Regional Director, the Em-
ployer is a not-for-profit Illinois corporation princi-
pally engaged in the educational and vocational re-
habilitation of retarded and/or developmentally
disabled individuals. To achieve its goals, the Em-
ployer operates six sheltered workshops, a school for
children aged 3 to 16, and a residential facility for
individuals with multiple handicaps.
The workshops provide evaluation, vocational
training, and work experience for developmentally
disabled adults in an attempt-to teach them the high-
est possible degree of independence. A simulated fac-
tory within each workshop is used to teach specific
skills as well as to give the clients (students) a sense
of what working in a real factory setting entails. Both
work relationships and social relationships are fos-
tered by the activities of the workshop.
The Employer's school accepts placement of hand-
icapped children by contractual agreement with the
public school system. Reading readiness and other
basic educational skills such as arithmetic and self-
help are taught.
The Employer's community living facility for mild-
ly or moderately retarded individuals, who may also
be blind, offers an intensive training program con-
centrating on self-care and other self-help skills such
as how to use public transportation. The facility is
not a permanent home for these individuals, who
must be substantially able to care for themselves, but
rather is a method of providing them with intensive
rehabilitative and educational training. All persons
who live in the facility are also enrolled in one of the
Employer's workshops.
The Employer's 1975 financial statement reveals
total revenues of $2,211,429 during the fiscal year
ending June 30, 1975. Charitable contributions
amounted to $133,836, grants from state and Federal
agencies were $1,475,819, fees and tuition were
$295,220, and private funds amounted to $86,791.
The Employer received $214,368, when computed on
an accrual basis, from its subcontracts with private
commercial companies relative to its workshops op-
erations, the bulk of this money going to pay clients'
salaries. The Employer's total expenses in fiscal 1975
were $1,972,784.
We find, based on the entire record herein, that the
Employer's primary function is rehabilitation of the
retarded. Thus, while the Employer's school teaches
the basic educational subjects of reading and arith-
metic, its primary goal is the acquisition by its clients
225 NLRB No. 172
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of self-help skills such as reading street and bus signs
and making change. Likewise, the Employer's work-
shops and living facility serve the Employer's prima-
ry purpose of rehabilitating its clients by providing
them not only with basic work skills, but also with
the socialization support needed for them to attain
the greatest possible degree of independence.
Although much was made on the record of the
nomenclature "developmentally disabled" as op-
posed to mentally retarded, the definition of the for-
mer term as found in the Federal statute and accept-
ed by the Regional Director shows that it is merely a
more expansive term which essentially covers the
mentally retarded, as well as those whose neurologi-
cal conditions are closely related to mental retarda-
tion.
The National Labor Relations Act was amended
by the enactment of Public Law 93-360, effective
August 25, 1974, which extended the coverage of the
Act within the health care field. Under the new Sec-
tion 2(14) of the Act, the term "health care institu-
tion" is defined as including
any hospital, convalescent hospital, health main-
tenance organization, health clinic, nursing
home, extended care facility, or other institution
devoted to the care of sick, infirm, or aged person
[Emphasis supplied.]
This definition is written in the broadest of terms and
has been interpreted by the Board to include a facili-
ty for the care of the retarded. Beverly Farm Founda-
tion, Incorporated, 218 NLRB 1275 (1975). Although
it was found in Beverly Farm that the programs of
that particular institution were not designed to pre-
pare the resident for eventual return to society or to
make them economically self-sufficient, as is the stat-
ed goal of the instant Employer, contrary to the Re-
gional Director, we do not find this difference in
goals is sufficient to make the holding in that case
inapplicable to this Employer. In this regard we note
that from 90 to 99 percent I of the Employer's clients
in fiscal 1975 remained in its programs and were not
placed in private industry. Furthermore, as the Re-
gional Director himself finds, the majority of the
Employer's clients are not now candidates for em-
ployment in private industry and some remain with
the Employer on a long-term basis
Accepting the Employer's stated purpose as being
rehabilitation of retarded persons, and not solely in-
stitutionalization as in Beverly Farm, nevertheless,
2 While the Employer's executive director testified that 75 out of 500
clients in fiscal 1975 were placed in outside jobs, the Petitioner introduced a
chart prepared by the Employer which purports to show that figure to be
only 9 Because we view either figure as showing only a small percentage of
client placement in private industry, we find it unnecessary to resolve this
conflict in the record
the Board has held that the fact that the purpose of a
facility is rehabilitation does not make it any less a
"health care institution" if it is otherwise encom-
passed within the statutory definition.3 Although
Baker did involve a halfway house for the mentally
ill, as the Regional Director points out, the finding
therein that an institution with a rehabilitative pur-
pose comes within the intended coverage of Section
2(14) is equally applicable here. We therefore con-
clude, on the basis of the above, that the Employer's
facilities fall within the definition of a health care
institution within the meaning of Section 2(14) of the
Act.
With respect to the Employer's alternative conten-
tion that jurisdiction should not be asserted here
based on our holding in Young Women's Christian
Association of Metropolitan Chicago, 221 NLRB 262
(1975), we find that despite state regulation the Em-
ployer retains sufficient independent control over its
employees' terms and conditions of employment to
enable it effectively to bargain with Petitioner. Thus,
while the State establishes a general plan covering
the service which the grantee institution will render,
and this plan sets the expected number of clients to
be served and the overall man-hours to be expanded
in delivering this service, within an acceptable range,
the State does not set salaries, nor does it limit the
type of benefits the employer's employees receive.
On a day-to-day level, the State does not determine
the number of hours per week which the employer's
employees must work, nor are employees' vacations
or holidays subject to state control.
Inasmuch as the degree of control exercised by the
State of Illinois over the instant Employer has not
been demonstrated to be as substantial as that shown
in YWCA, supra, we find no basis in that decision for
declining to assert jurisdiction here. Accordingly, we
must consider the monetary aspects of the
Employer's operations.
As noted above, the Employer's gross annual in-
come for the fiscal year ending June 30, 1975,
amounts to $2,211,429. Inasmuch as this amount
clearly exceeds the $250,000 jurisdictional standard
which we have established for, inter aha, the type of
health care institution involved herein,4 we find that
the impact of the Employer's operation on commerce
is sufficient to warrant assertion of jurisdiction here-
in and it will effectuate the purposes of the Act to do
so.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
3 Baker Places, Inc, 219 NLRB 86 (1975), Member Fanning dissenting in
part on other grounds
4See East Oakland Community Health Alliance, Inc, 218 NLRB 1270
(1975)
CHICAGO SCHOOL & WORKSHOP FOR THE RETARDED 1209
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Petitioner is here seeking a unit described
in its petition as "including all employees employed
by Chicago School & Workshop for the Retarded at
its several locations, in client contact classifications,
including teaching, social service floor supervision,
counseling, coordinating, evaluation, therapy and
maintenance, excluding managers, business and of-
fice clerical, and salespersons, supervisors and guards
as defined in the Act." The Employer contends, how-
ever, that the only appropriate unit is a unit of pro-
fessional employees which should include secretaries,
salesmen, bookkeepers, maintenance men, and the
truckdriver because of the close integration of job
functions with those of the professional staff.
With respect to the Employer's contention that
those nonprofessional employees not requested by
Petitioner should be included in the unit, we find,
based on the record as a whole, that although secre-
taries, business office people, and the truckdriver
may have some minimal contact with clients, their
job function is essentially to support the efforts of
those specially trained employees whose job it is to
provide rehabilitation service. Based on this distinc-
tion, we find the employees petitioned for share a
sufficiently distinct community of interests 5 to con-
stitute a unit appropriate for collective bargaining.
The parties have stipulated the supervisory or part-
time status and exclusions of various employees, who
will therefore be excluded from the unit.
There remains for consideration the Employer's
contention that certain employees in the unit found
appropriate are professional employees within the
meaning of the Act.
The parties stipulated, and we find, that the social
workers, who have a required master of arts degree in
social work or rehabilitation counseling, and the mo-
bility specialist, who has a required master of arts
degree in rehabilitation counseling, are professional
employees.
We also find that the speech therapist and voca-
tional counselors, all of whom are required to have
advanced degrees in their respective fields, are pro-
fessional employees.
With respect to teachers in the school, activity
workers, workshop floor supervisors, and community
living facility staff, all of whom the Employer con-
tends are professional employees, although testimony
in the record indicates that the Employer does re-
quire these individuals to have college degrees, the
evidence does not otherwise support a finding that
they qualify as professionals under the criteria estab-
lished in Section 2(12) of the Act. The duties of work
sample evaluators, who the Employer also contends
are professional employees, are not even mentioned
in the record. Thus, on the record before us, we do
not find this latter group to be professional employ-
ees.
In accordance with the above findings and the rec-
ord as a whole, we find that a unit of all employees
employed by Chicago School & Workshop for the
Retarded, at its several locations, in client contact
classifications, including teaching, social service floor
supervision, counseling, coordinating, evaluation,
therapy, and maintenance, excluding managers, busi-
ness and office clericals, and salespersons, supervi-
sors, and guards as defined in the Act, may consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act. However, this unit includes both professional
and nonprofessional employees, whom the Board
cannot loin in a single unit without the desires of the
professional employees being determined in a sepa-
rate vote.
We shall therefore direct separate elections in the
following voting groups:
Voting group a: All employees employed by Chi-
cago School & Workshop for the Retarded at its
several locations, in client contact classifica-
tions, including teaching, social service floor su-
pervision, counseling, coordinating, evaluation,
therapy, and maintenance, excluding managers,
business and office clericals, salespersons, pro-
fessional employees, and supervisors and guards
as defined in the Act.
Voting group b• All professional employees, ex-
cluding all other employees and supervisors as
defined in the Act.
The employees in the nonprofessional voting
group a will be polled to determine whether or not
they wish to be represented by the Petitioner.
The employees in voting groub b will be asked two
questions on their ballot:
(1) Do you desire to be included in the same
unit as other nonprofessional employees of the
Employer for the purposes of collective bargain-
ing?
(2) Do you desire to be represented for the
purposes of collective bargaining by Local 329,
Service Employees International Union, AFL-
CIO?
5 In finding Petitioner's requested unit appropriate, we include the main- If a majority of the professional employees in vot-
tenance men inasmuch as both parties agree that they should be included ing group b vote "yes" to the first question, indicat-
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ing their wish to be included in a unit with nonpro-
fessional employees, they will be so included. Their
votes on the second question will then be counted
together with the votes of the nonprofessional voting
group a to determine whether or not the employees
in the whole unit wish to be represented by Peti-
tioner. If, on the other hand, a majority of profes-
sional employees in voting group b vote against in-
clusion, they will not be included with the
nonprofessional employees. Their votes on the sec-
ond question will then be separately counted to de-
termine whether or not they wish to be represented
by the Petitioner. There is no indication in the record
that the Petitioner would be unwilling to represent
the professional employees separately, if those em-
ployees vote for separate representation. However, if
Petitioner does not desire to represent the profession-
al employees in a separate unit even if those employ-
ees vote for such representation, the Petitioner may
notify the Regional Director to that effect within 10
days of the date of this Decision on Review and Di-
rection of Elections.
Our unit determination is based, in part, then,
upon the results of the election among the profes-
sional employees. However, we now make the follow-
ing findings in regard to the appropriate unit:
1. If a majority of the professional employees vote
for inclusion in the unit with nonprofessional em-
ployees, we find that the following will constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed by Chicago School &
Workshop for the Retarded at its several loca-
tions, in client contact classifications, including
teaching, social service floor supervision, coun-
seling, coordinating, evaluation, therapy and
maintenance, excluding managers, business and
office clericals, and salespersons, supervisors,
and guards as defined in the Act.
2. If a majority of the professional employees do
not vote for inclusion in the unit with nonprofession-
al employees, we find that the following two groups
of employees will constitute separate units appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All employees employed by Chicago School &
Workshop for the Retarded at its several loca-
tions, in client contact classifications, including
teaching, social service floor supervision, coun-
seling, coordinating, evaluation, therapy, and
maintenance, excluding managers, business and
office clericals, salespersons, professional em-
ployees, and supervisors and guards as defined
in the Act.
All professional employees, excluding all
other employees and supervisors as defined in
the Act.
[Direction of Elections and Excelsior footnote
omitted from publication.]
CHAIRMAN MURPHY, dissenting:
I would not assert jurisdiction over the Employer
for the reasons set forth in the dissent in Lutheran
Association for Retarded Children, a California Non-
Profit Corporation d/b/a Home of Guiding Hands, 218
NLRB 1278 (1975). See also the dissenting opinion in
Beverly Farm Foundation, Incorporated, 218 NLRB
1275 (1975).