Child, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1983

266 N.L.R.B. 578 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Child, Inc. and Texas Federation of Teachers. Case
AO-241
March 24, 1983
ADVISORY OPINION
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
A petition and supplemental petition, with exhib-
its, were filed on November 8 and 10, 1982, respec-
tively, by Child, Inc., herein called the Employer,
for an advisory opinion, in conformity with Sec-
tions 102.98 and 102.99 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, seeking to determine whether the Board
would assert jurisdiction over the Employer and,
further, praying that the Board decline to assert ju-
risdiction. On November 23, 1982, Texas Feder-
ation of Teachers, herein called the Union, filed a
response to the supplemental petition, with exhibits,
and on December 6, 1982, filed a position 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.
In pertinent part, the petitions, the response and
brief, and the exhibits allege as follows:
1. There is presently pending before the District
Court of Travis County, Texas, a lawsuit styled
Child, Inc. v. Texas Federation of Teachers, No.
339,944 in the 147th District Court, in which
Child, Inc., has prayed for relief that the Union
and its affiliated organizations be precluded and
temporarily enjoined from representing any em-
ployees of the Employer until and unless the
American Federation of Teachers changes its
public position so that it encourages nonstate-certi-
fied teachers to teach in publicly funded day care
and child development programs.
2. The Employer is a nonprofit Texas corpora-
tion which provides community-based day care and
early childhood development, and is a designated
agency for delivering Head Start and Title XX
services. Each service is funded by the United
States Government.
3. Exhibits supplied by the Employer reflect that
the Employer had gross revenues for the most
recent fiscal year that exceeded $8 million, and that
it purchased approximately $55,000 worth of sup-
plies and/or equipment from companies which pur-
chased approximately $13,000 worth of those sup-
plies and/or equipment from outside the State of
Texas. Exhibits supplied by the Union reflect that
the Employer was awarded by the United States
Department of Health and Human Services for its
Head Start program a total of $1,778,031 during
266 NLRB No. 100
the 1982-83 budget period, and that the Employer
received $770,232.17 from the Texas Department
of Human Resources for the period of November
1981 through October 1982.
4. The Union essentially admits the above com-
merce data.
5. There is no representation or unfair labor
practice proceeding involving the same labor dis-
putes pending before this Board.
6. As noted above, the Union has filed a re-
sponse to the supplemental petition, and has filed a
position brief.
On the basis of the above, the Board is of the
opinion that:
1. The Employer is a nonprofit Texas corpora-
tion which provides Head Start child development
services and Title XX services. Each service is
funded by the United States Government.
2. The Board's advisory opinion proceedings
"are designed primarily to determine questions of
jurisdiction by the application of the Board's dis-
cretionary standards to the 'commerce' operations
of an employer."' As the Employer received rev-
enues exceeding $8 million, and has received in
excess of $1 million from Federal funds the transfer
of which across state lines constitutes commerce
more than sufficient to establish legal jurisdiction, 2
it is clear that the Employer is engaged in com-
merce within the meaning of the Act and meets the
Board's discretionary jurisdictional standards.3
The Employer, citing Pennsylvania Labor Rela-
tions Board (Urban League of Pittsburgh (Pittsburgh
Community Day Care)), 209 NLRB 152 (1974),
contends that, in order to effectuate Federal policy
as to Head Start and Title XX, the Board has pre-
viously declined to assert its jurisdiction over orga-
nizations deemed to be "adjuncts" to the public
school system. More recently, however, in Nation-
al Transportation Service, Inc., 240 NLRB 565
(1979), the Board indicated that, when ascertaining
whether jurisdiction should be asserted over an em-
ployer which appears to maintain close ties to an
exempt governmental entity, the Board shall no
longer decline jurisdiction solely because of the re-
lationship between the "purpose" of the exempt
entity and the nature of the services provided to it
by such an employer. Rather, the Board decided
henceforth to resolve such jurisdictional questions
by first determining whether the subject employer
Upper Lakes Shipping, Ltd., 138 NLRB 221 (1962). The Employer's
allegation that the Union has a "fatal conflict of interest" in representing
the Employer's employees is an issue which does not fall within the in-
tendment of the Board's advisory opinion rules; nor is it, contrary to the
Employer's suggestion, grounds upon which the Board would decline to
assert jurisdiction over the Employer.
2 Mon Valley United Health Services, Inc., 227 NLRB 728 (1977).
3 Ibid
578
CHILD, INC.
itself meets the definition of "employer" in Section
2(2) of the Act and, if it does, then determining
whether that employer has sufficient control over
the employment conditions of its employees to
enable it to bargain with a labor organization
which represents them. 4 The Employer's submis-
sion, setting forth the relationship between the Em-
ployer and its exempt governmental grantors, raises
4 See D. T. Watson Home for Crippled Children, 242 NLRB 1368, 1370
(1979), purporting to abandon the "adjunct to the public school system"
standard.
Member Hunter does not take a position with respect to the "adjunct
to the public school system" standard; nor does he reach this issue in his
dismissal of the petition for advisory opinion. He further notes that he
has rejected the approach taken by a majority of the Board in National
Transportation Service. Inc. In this connection, see Member Hunter's dis-
senting opinion in Wordsworth Academy, 262 NLRB 438 (1982).
579
the issue whether the Employer shares the exemp-
tion of its governmental grantors and thereby pre-
cludes the assertion of jurisdiction over the Em-
ployer. This issue does not fall within the intend-
ment of the Board's advisory opinion rules.5 Ac-
cordingly, although we are able to advise the par-
ties that the Employer falls within the Board's
dollar standards for the assertion of jurisdiction, we
are unable to resolve the ultimate jurisdictional
issue presented. We shall, therefore, dismiss the pe-
tition for advisory opinion.
Accordingly, it is hereby ordered that, for the
reasons set forth above, the petition for an advisory
opinion be dismissed.
5 See Massachusetts Labor Relations Commission (Baystate Bus Corpora-
tion), 236 NLRB 1357 (1978), and cases cited in fn. 4.