Hinds County Human Resource Agency

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1404 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1404
Hinds County Human Resource Agency and Interna-
tional Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO,
Petitioner. Case 18–RC–16579 (formerly 15–RC–
8239)
August 25, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On November 22, 1999, the Regional Director of Re-
gion 18 issued a Decision and Direction of Election in
the above-entitled proceeding, in which he found that the
Employer is not a political subdivision of the State of
Mississippi exempt from the Board’s jurisdiction under
Section 2(2) of the National Labor Relations Act. There-
after, in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, the Em-
ployer filed a timely request for review of the Regional
Director’s decision, contending that the Regional Direc-
tor erred in finding the Employer not to be a political
subdivision.
By order dated January 6, 2000, the Board granted the
Employer’s request for review. Thereafter, the Employer
filed a brief on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the Employer’s brief on review, and finds
that the Employer is exempt from Board jurisdiction un-
der Section 2(2) of the Act as a political subdivision of
the State of Mississippi.
An Employer is a political subdivision if it is either:
(1) created directly by the State so as to constitute a de-
partment or administrative arm of government; or (2)
administered by individuals who are responsible to pub-
lic officials or the general public. NLRB v. Natural Gas
Utility District of Hawkins County, Tennessee, 402 U.S.
600 (1971). The record demonstrates, and we find, that
the Employer is exempt under the first prong of this test.1
The Hinds County Board of Supervisors (HCBS)2 cre-
ated the Employer in 1975, pursuant to sections 17–15–1
through 15–11 of the Mississippi State Code, to adminis-
ter programs designed to assist low income people. Pro-
grams currently administered by the Employer include:
Hinds County Project Head Start, Community Services
Block Grant, Low Income Energy Assistance Program,
Home Weatherization Assistance Program, Home Deliv-
ered Meals, Homemaker Services, Rural General Public
Transportation, After School Enrichment Program, Ado-
lescent Offender Program, and Americorps. The perti-
nent part of the enabling statute reads: “The boards of
supervisors and the municipal governing boards of the
various counties and cities of the State of Mississippi are
hereby empowered to create human resource agencies
which may be comprised of one or more counties, cities,
or any combination thereof.”3 It is well established that
the National Labor Relations Board recognizes entities
created by county governments pursuant to an enabling
state statute, as having been directly created by the state
under Hawkins. See Madison County Mental Health
Center, 253 NLRB 258, 259 (1980); and Assn. for the
Developmentally Disabled, 231 NLRB 784, 786 (1977).
We therefore find that the Employer was created directly
by the state.

1 As we find that the Employer satisfies the first prong of the Haw-
kins test, we find it unnecessary to determine whether the Employer is
administered by individuals who are responsible to public officials or to
the general public.
2 It has been stipulated that the HCBS is the governing authority of
Hinds County. The HCBS is elected by the general electorate with
each of the five members representing a separate geographical district.
The issue remains as to whether the Employer was
created by HCBS so as “to constitute a department or
administrative arm of government.” It is clear from the
language of the enabling statute that it was the legisla-
ture’s intention that human resource agencies, such as the
Employer, be operated under local governmental con-
trol.4 Additionally, subsequent rulings by the Mississippi
Attorney General and other state entities indicate that the
State of Mississippi views the Employer as an exempt
political entity.5 We are mindful that in Hawkins, the
Supreme Court found such state determinations are not
controlling in ascertaining whether an entity is a political
subdivision. However, the Court also found that such
determinations are worthy of careful consideration,6 and
the Board has found the state’s characterization of an
entity to be an important factor in determining the more
specific issue of whether the Employer was created so as
to constitute a department or administrative arm of
government. See University of Vermont, 297 NLRB 291,
295 (1989); New York Institute for the Blind, 254 NLRB
664, 667 (1981).
3 Miss. Code Ann. §17–15–1.
4 “It is the express intention of this chapter that agencies created
hereunder shall be operated under local governmental control and shall
be responsible for administration of programs heretofore conducted by
community action agencies and related programs authorized by federal
law.” Miss. Code Ann. §17–15–1.
5 Specifically, the Mississippi Attorney General has found that be-
cause the Employer is a governmental entity it is subject to the Public
Purchase Act, which requires competitive bidding, and it cannot con-
duct raffles. The State Tax Commission also considers the Employer to
be a governmental entity, as indicated in their letter exempting the
Employer from sales tax pursuant to Miss. Code Ann. 27–65–105(A).
The Mississippi Torts Claim Board issued a certificate of coverage for
the Employer, approving liability coverage for the Employer as a “po-
litical subdivision.” Additionally, the Mississippi Ethics Committee,
which has the authority to issue advisory opinions “when any public
official requests in writing such an advisory opinion,” also considers
the Employer to be a governmental entity, as it has issued opinions
regarding the Employer’s operations in response to the Employer’s
inquiries.
6 Hawkins, 402 U.S. at 602.
331 NLRB No. 186
HINDS COUNTY HUMAN RESOURCE AGENCY 1405
There is also significant governmental control over the
Employer’s budget, auditing, and operations. The Em-
ployer receives virtually all of its funding from the state,
county, and the Federal government directly and in the
form of block grants.7 Pursuant to the enabling statute,
HCBS reviews the Employer’s annual audit and has the
power to call the Employer in for clarification. In addi-
tion, the Employer’s financial records are subject to audit
by the HCBS and by the Mississippi auditor of public
accounts.8 The Employer also makes a yearly presenta-
tion to HCBS to justify the annual allocation of funds
from Hinds County, and meets with HCBS twice a year
to explain progress on goals achieved. Additionally,
Kenn Cockrell, the Employer’s executive director, testi-
fied that the use of funds received through Federal block
grants are restricted by minimal Federal requirements
and more restrictive state plan requirements promulgated
through the Mississippi Department of Human Services.
Finally, the Mississippi Attorney General has found that
the Employer can borrow money only as authorized by
the legislature.9 Thus, the record establishes significant
governmental control over the Employer’s budget and
audit procedures which supports a finding that the Em-
ployer was created as an administrative arm of the State.
Northampton, 257 NLRB 870, 872 (1981) (finding em-
ployer to be an administrative arm of government when,
inter alia, virtually all its funds come from governmental
sources and the amount and use of those funds is speci-
fied and controlled by governmental contracts); Madison
County, 253 NLRB at 259 (finding employer to be an
administrative arm of government when, inter alia, 80
percent of the employer’s funding comes from govern-
mental sources and its fee structure is subject to approval
of the Madison County Health and Retirement Board).
Cf. Jervis Public Library Assn., 262 NLRB 1386, 1388
(1982) (significant control over the employer’s expendi-
tures established by reason of required submission of
annual budget to governmental entity prior to funding
approval). See also Camden-Clark Memorial Hospital,
221 NLRB 945, 947 (1975) (finding employer to be an
administrative arm of government when, inter alia, it
receives funding from government sources subject to the
general control and direction of its board of trustees).
Beyond budgetary control, the record demonstrates
that the enabling statute has mandated that the HCBS
have oversight of the Employer’s operations. Specifi-
cally, HCBS must ratify and approve the Employer’s

7 The Regional Director noted that for the fiscal year 1996, Hinds
County budgeted a contribution of $200,000, and the State of Missis-
sippi directly contributed $183,447. The Employer’s overall budget
was $13,535,343 for fiscal year 1996.
8 Miss. Code Ann. § 17–15–9.
9 See Prairie Home Cemetery, 266 NLRB 678 (1983) (fact that ena-
bling city ordinance provides that the employer’s board cannot incur
liability or acquire debt without first having submitted full and specific
approval of county commissioners weighed in favor of finding that
employer was an administrative arm of government).
bylaws and any subsequent changes to those bylaws.
The HCBS must also approve each of the Employer’s
new board members.
We recognize that the Employer’s board members
have the power to adopt bylaws, to hire senior staff (in-
cluding the executive director), and determine the Em-
ployer’s programs and priorities. Further, as discussed
by the Regional Director, the Mississippi Attorney Gen-
eral has clearly indicated that the Employer’s board
members are responsible for the Employer’s plans, pri-
orities, and activities, and “may not delegate those re-
sponsibilities to other county officials.”10 Such responsi-
bilities, however, do not negate a finding that the Em-
ployer was created as an administrative arm of govern-
ment. See, e.g., Jervis Public Library Assn., supra; Cam-
den-Clark Memorial Hospital, 221 NLRB 945, 946–948
(1975).
There are other facts that support a finding that the
Employer was created as an administrative arm of gov-
ernment. For example, the Employer is exempt from
Federal and state income tax as well as state sales tax.11
Further, employees have the option of participating in the
state retirement system.12
In sum, based on the facts set forth above we find that
the Employer satisfies the first prong of Hawkins and
thus is exempt from our jurisdiction as a political subdi-
vision.13 In so concluding, we rely particularly on the
following facts: the Employer was created directly by the
HCBS pursuant to a state statute specifically granting
10 Cited in Miss. Code Ann. § 17–15–1.
11 Hawkins, 402 U.S. at 602; Camden-Clark Memorial Hospital, 221
NLRB at 945. We note that while the Employer is exempt from state
sales tax because it is considered a political entity, it is exempt from
Federal income tax as a 501(c)(3) organization, rather than as a political
subdivision under 26 U.S.C. §115.
12 Prairie Home Cemetery, 266 NLRB 678 (1983); Jervis, 262
NLRB at 1388 fn. 13; Assn. of the Developmentally Disabled, supra. In
all three of these cases the fact that the employees participated in the
state retirement system, without regard to whether or not they were
required to do so, weighed in favor of a finding that the first prong of
Hawkins was satisfied.
13 In concluding that the first prong of Hawkins had not been satis-
fied, the Regional Director likened the facts of this case to those found
in St. Paul Ramsey Medical Center, 291 NLRB 755 (1988), in which
the Board found that the employer was not a political subdivision. We
find St. Paul to be distinguishable. In St. Paul, the Board found that
although the Medical Center was once an exempt political entity, the
balance of the relevant statutory provisions of the new State act creat-
ing a nonprofit public corporation indicated that the State no longer
intended the Medical Center and hospital subsidiary corporation to be
established as departments or administrative arms of the government.
By contrast, in the case before us the enabling state statute specifically
indicates that it is the legislature’s express intention that the relevant
human resource agencies operate under local governmental control.
The Board distinguished St. Paul from Camden-Clark Memorial Hospi-
tal, supra (where the Board reached the opposite result), citing the fact
that the hospital in Camden-Clark was not separately incorporated or
otherwise organized so as to have a separate legal identity apart from
the city. We note that the in the instant case, the Employer is not sepa-
rately incorporated and there is no evidence in the record to indicate
that it has a separate legal identity apart from the city.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1406
county Boards the power to establish and operate Human
Resource agencies; the state statute specifically indicated
that such agencies are to be operated under local gov-
ernment control; the Employer receives virtually all of its
funds from State and Federal governmental sources; and
the amount and use of those funds is specified and con-
trolled by governmental contracts and grants.14 See
Northampton Center for Children, 257 NLRB at 872.
As we have concluded that the Employer is a political
subdivision exempt from coverage of the Act, we shall
dismiss the instant petition.
ORDER
The petition is dismissed.

CHAIRMAN TRUESDALE, concurring.
I agree with my colleagues that the Employer is exempt
from the Board’s jurisdiction under Section 2(2) of the Act
as an exempt political subdivision and that the petition
should be dismissed. In my view, however, a majority of
the individuals on the Employer’s board of directors are
public officials or individuals responsible to the general
electorate and, therefore, the Employer satisfies the second
prong of the test under NLRB v. Natural Gas Utility of
Hawkins County, Tennessee, 402 U.S. 600 (1971).1
In Hawkins, the Supreme Court held that an exempt
political subdivision under Section 2(2) of the Act is an
entity that is either (1) created directly by the state, so as
to constitute an administrative arm of the government or
(2) administered by individuals who are responsible to
public officials or to the general electorate. 402 U.S. at
604–605. In order for an entity to be “administered by”
individuals responsible to public officials or the general
electorate, those individuals must comprise a majority of
that employer’s governing board. Jefferson County
Community Center v. NLRB, 732 F.2d 122, 126 (10th
Cir. 1984).
In the instant case, a tripartite board of directors gov-
erns the Employer, a provider of programs and services
to ameliorate the causes and conditions of poverty in
Hind County, Mississippi.2 It is undisputed that one-

14 Factors listed by the Regional Director as supporting the conclu-
sion that the Employer is not a political subdivision are that the Em-
ployer has no power of eminent domain, can purchase property, enters
into its own contracts and applies for its own grants, and that the HCBS
is not liable for the Employer’s deficit spending. We note that none of
these factors are considered by the Board to be determinative of em-
ployer status under Sec. 2(2). University of Vermont, 297 NLRB 291,
292 (1989) (finding that the employer satisfied the first prong of Haw-
kins even though it had no power of eminent domain and had the right
to use, sell, or dispose of all its real estate and personal property); City
Public Service Board of San Antonio, 197 NLRB 312, 313 (1972) (arm
of government notwithstanding that the employer enters into its own
contracts).
1 Accordingly, I find it unnecessary to pass on whether the Employer
is an entity created directly by the State so as to constitute a department
or administrative arm of government.
2 The Employer’s bylaws specify that the board of directors may
consist of as many as 33 members, but no less than 15 members and
third of the Board of Directors, consisting of each super-
visor on the Hinds County Board of Supervisors
(HCBS)3 or their designee, is responsible to the general
electorate as defined in Hawkins County.
Another one-third, comprised of “representatives of
the poor,” is elected by each of the five supervisory dis-
tricts of Hinds County. Recognizing that it would not be
feasible to require prospective voters to provide verifica-
tion of income, the bylaws provide that “all residents of
Hinds County may vote in the Supervisory District in
which they live.”
In Enrichment Services Program, Inc., 325 NLRB 818
(1998), a case like this one involving the political subdi-
vision status of a nonprofit community action agency with
a tripartite governing board, the Board held that individu-
als who administer an employer are responsible to the
general electorate “only if the relevant electorate is the
same as that for political elections.” 325 NLRB at 820.
In Enrichment Services, the relevant electorate of mem-
bers of various low income neighborhoods was not “suf-
ficiently comparable” to the general electorate since it did
not include all individuals in the area served who would
be eligible to vote in general elections. Id. at 819. In the
instant case, however, the Employer’s bylaws provide for
complete identity between the relevant electorate for the
representatives of the poor on the Employer’s board of
directors and the general electorate of the supervisory
districts. Because the relevant electorate is the same as
that for general political elections, I find that this third of
the Employer’s board of directors is comprised of indi-
viduals responsible to the general electorate. Accord-
ingly, I find that a majority of the Employer’s board of
directors is comprised of public officials or individuals
responsible to the general electorate under Hawkins
County and that the Employer is an exempt political sub-
division.4

that total membership must always be divisible by three. Currently, the
board of directors consists of 15 members.
3 The parties have stipulated that the HCBS is the governing author-
ity of Hinds County. Each of the five supervisors is elected by the
general electorate in separate geographical districts.
4 The remaining one-third of the board of directors is comprised of
representatives of private sector organizations. The board of directors
selects the organizations that will participate, but each organization
selects its own representative. In view of my finding with regard to the
other two-thirds of the board of directors, it is unnecessary to determine
whether these representatives of private sector organizations are re-
sponsible to public officials.