Hispanic Federation For Social And Economic Development

National Labor Relations Board - Board Decisions

Jun 26, 1987

284 N.L.R.B. 500 (N.L.R.B. 1987)

500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hispanic Federation for Social and Economic Devel-
opment and District Council 47, American Fed-
eration of State, County and Municipal Employ-
ees, AFL-CIO, Petitioner. Case 4-RC-15494
26 June 1987
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, STEPHENS, AND
CRACRAFT
On 19 December 1983 the Regional Director for
Region 4 issued a Decision and Direction of Elec-
tion in this proceeding, asserting jurisdiction over
the Employer, Hispanic Federation for Social and
Economic Development, on the basis that the Em-
ployer's gross annual revenues exceeded $100,000.
The Regional Director found this figure to be the
applicable discretionary amount for assertion of ju-
risdiction over employers that provide social serv-
ices such as family counseling. In asserting jurisdic-
tion, the Regional Director also found that: (1) part
of the Employer's revenues, originating from the
Department of Housing and Urban Development,
were sufficient to establish the Board's legal or
statutory jurisdiction over the Employer; (2) there
was no evidence that any of the governmental enti-
ties that provided funds to the Employer exercised
any control over the Employer's labor relations
policies; and (3) the Employer's status as a charita-
ble organization did not affect the Board's assertion
of jurisdiction over it. Thereafter, in accordance
with Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, the Employer
filed a timely request for review of the Regional
Director's decision, contending that the Regional
Director erred in asserting jurisdiction.
The Board granted the Employer's request for
review with respect to the appropriate discretion-
ary jurisdictional standard and denied the request
for review in all other respects.1
The Employer is a nonprofit corporation that
exists for the purpose of improving the social and
economic conditions of the Hispanic community in
the Philadelphia area. The Employer operates two
programs. Under its human services program,
called Services to Children in Their Own Homes
(SCOH), the Employer's social workers interview
people, both at their homes and at the Employer's
office. The social workers identify the needs of the
families, then take them to appropriate agencies
within the city to help them with emergencies and
short-term or long-term problems, such as child
abuse, sexual abuse, and psychological or economic
Chairman Dotson, dissenting in part, would have granted the Em-
ployer's request for review in all respects.
problems. Under its other program, a housing pro-
gram, the Employer provides technical support
services related to the provision of housing. The
Employer acts in a consultative role, serving as an
advisor to community groups that wish to become
involved in improving housing conditions in any
manner. It was stipulated that the Employer em-
ploys eight employees, four of whom are profes-
sionals and four of whom are nonprofessionals.
During its fiscal year ending 10 June 1983, the Em-
ployer received revenues totaling $222,463.
In finding that the Employer met the Board's
discretionary jurisdictional standard, the Regional
Director relied on Child & Family Service of Spring-
field, 220 NLRB 37 (1975), and Catholic Social
Services, 225 NLRB 288 (1976). We find these cases
inapposite. In Child & Family Service, of Springfield,
the employer provided a variety of social services,
including homemaker services. The homemaker
services consisted of home care for children, fami-
lies, and older citizens. The services were neces-
sary to maintain the individuals in their own com-
munity and prevent institutionalization. Homemak-
ers performed duties such as child care, light
housekeeping, meal preparation, shopping, light
laundry, and minimal personal care. They also gave
emotional support and encouragement to family
members. The Board found the employer's home-
maker operations to be similar to those of visiting
nurses associations, for which the Board has estab-
lished a discretionary jurisdictional standard of
$100,000, noting that the homemaker operations
were directed almost entirely to providing services
for people who had health problems. As the em-
ployer had an annual budget of $415,000 to
$420,000, approximately 40 percent of which, or
about $166,000 to $168,000, was devoted to its
homemaker operations, the Board asserted jurisdic-
tion under its discretionary standard for visiting
nurses association.2
In Catholic Social Services, 225 NLRB 288 (1976),
the employer was a social service agency that pro-
vided family counseling by social workers who en-
gaged in all areas of counseling related to family
problems. The Board found that the general nature
of services provided by the employer was analo-
gous to those provided in Child & Family Service of
Springfield. The employer's annual revenues were
$412,000. The Board asserted jurisdiction on the
basis that the employer's annual revenues were
more than $400,000, which exceeded any of the
2 The Board further noted that, although the homemakers administered
no medical treatment, it had asserted jurisdiction over and applied a
$100,000 annual revenue standard to facilities providing essentially custo-
dial and personal care functions, relying on Riverdale Manor Home for
Adults, 189 NLRB 176 (1971)
284 NLRB No. 50
HISPANIC FEDERATION FOR SOCIAL DEVELOPMENT 501
analogous discretionary jurisdictional standards. By
this statement, the Board presumably was referring
to the jurisdictional standards for nursing homes,
visiting nurses associations, and related facilities
($100,000); health care institutions other than the
foregoing ($250,000); and day care centers
($250,000).
We find significant differences between the
present case and those on which the Regional Di-
rector relied. Unlike the employer in Child &
Family Service of Springfield, the Employer here
does not provide homemaker services, nor are its
services similar to those performed by visiting
nurses associations. Although the Employer's serv-
ices are similar to many of the services, other than
homemaker services, provided by the employer in
Child & Family Service of Springfield, it was the
homemaker services on which the Board relied in
finding the standard for visiting nurses association
applicable in that case. Accordingly, we find that
the $100,000 standard for nursing homes, visiting
nurses associations, and related facilities is not ap-
plicable to the Employer. Furthermore, unlike the
employer in Catholic Social Services, the Employer's
annual revenues of $222,463 cannot be said to
exceed any analogous existing discretionary stand-
ard.
Having determined that the standard for nursing
homes, visiting nurses associations, and related fa-
cilities is inapplicable and that the Employer's
annual revenues do not exceed any analogous dis-
cretionary standard, we must determine what juris-
dictional standard should apply. In a few previous
cases the Board found that certain employers that,
in a broad sense, provide social welfare services
fall within various specific standards governing dis-
cretionary jurisdiction. For example, employers
that operate community health clinics or provide
drug abuse or alcoholism treatment programs are
governed by the $250,000 annual revenues standard
for health care institutions as defined in Section
2(14) of the Act other than nursing homes, visiting
nurses associations, and related facilities. See Phase,
Inc., 263 NLRB 1168, 1171(1982); East Oakland
Community Health Alliance, 218 NLRB 1270, 1271
(1975). A separate standard, set at $250,000 annual
revenues, governs day care centers and residential
educational and treatment facilities for children.
See St. Aloysius Home, 224 NLRB 1344 (1976); Salt
& Pepper Nursery School, 222 NLRB 1295 (1976).
However, although the Board has asserted juris-
diction over employers that provide social services
which bear some similarity to those provided by
the Employer in the present case, it has done so on
the basis that the employer in question had gross
annual revenues in excess of those required under
any analogous jurisdictional standard or, in some
cases, in excess of those required under any of the
Board's jurisdictional standards. See Saratoga
County Economic Council, 249 NLRB 453, 455
(1980); Community Services Planning Council, 243
NLRB 798, 799 (1979); Catholic Social Services,
supra, 225 NLRB at 288, 289; Catholic Charities of
Buffalo, New York, 220 NLRB 9, 10 (1975); Chil-
dren's Aid Society, 218 NLRB 631 (1975). There-
fore, there has been no need to establish a specific
jurisdictional standard governing such organiza-
tions. As the Employer here does not have annual
revenues that exceed the amount required under
any analogous jurisdictional standard, we find it
necessary to establish a jurisdictional standard for
social service organizations other than those, such
as the ones noted above, for which there exists a
standard specifically applicable to the type of activ-
ity in which they are engaged, such as health care
or day care.
We take official notice in this case of statistical
data compiled by the Bureau of the Census con-
cerning "firms" that provide social services other
than child day care services. 3 On consideration of
these data and of the jurisdictional standards, noted
above, that the Board has established for employers
in somewhat analogous fields, we now establish a
jurisdictional standard of $250,000 annual revenues
for all social service organizations other than those
for which there exists a standard specifically appli-
cable to the type of activity in which they are en-
gaged. The Census Bureau data indicate that, by
establishing $250,000 annual revenues as the mini-
mum amount for asserting jurisdiction, about 38
percent of the employers in this category 4 and
about 88 percent of all employees employed by em-
ployers within this category 5 will be subject to the
'For use of statistical data in setting jurisdictional standards, see Salt
& Pepper Nursery School, supra, 222 NLRB at 1296; University Nursing
Home, 168 NLRB 263, 264 (1967); Floridan Hotel of Tampa, 124 NLRB
261, 265, 275 (1959).
The Bureau of the Census conducts a survey of service industries, in-
cluding social services, every $ years. The most recent such census was
conducted m 1982, and the data compiled from it were published in 1985.
The data on which we rely in setting the discretionary jurisdictional
standard in this case appear in 1982 Census of Service Industries Establish-
ment and Firm Size (Inqluding Legal Form of Organization), SC82-I-1 at
1-166. The data for social service entities are subdivided there into cate-
gones labeled "Child Day Care Services" and "Other Social Services."
The "Other Social Services" category includes all social service entities
other than "Child Day Care Services." The statistics used in this case are
derived from the data given for the "Other Social Services" category be-
cause, as explained above, the standard established by this decision is for
a category of employers that does not include day care centers. The 1982
Census of Service Industries refers to social service organizations as
"firms" because it uses commercial terms even in its census of nonprofit
activities in order "to maintain as much conformity of measures as practi-
cable." Id. at IV.
4 Le., 10,062 employers out of a total of 26,458 employers.
I.e., 667,053 employees out of a total of 759,099 employees.
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board's jurisdiction. We find that this standard will
result in the assertion of jurisdiction over those em-
ployers that exert a significant impact on com-
merce and that employ the majority of employees
in this field. We further fmd that, in accordance
with Section 14(c)(1) of the Act, the effect on com-
merce of a labor dispute involving noncovered em-
ployers under this standard will not be "sufficiently
substantial" to warrant the exercise of the Board's
jurisdiction.
As noted above, the Employer had gross reve-
nues of $222,463 for the relevant 1-year period.
The $250,000 annual revenues standard that we
now establish is in excess of the Employer's annual
revenues. Accordingly, we decline to assert juris-
diction over the Employer, and we shall dismiss
the petition.
ORDER
The petition is dismissed.
CHAIRMAN DOTSON, concurring.
My colleagues here set a discretionary jurisdic-
tional amount of $250,000 gross annual revenues
for social service organizations not covered by any
other Board jurisdictional standard. Although I
agree that the petition should be dismissed, I would
do so on other grounds and fmd the jurisdictional
standard set forth herein inappropriate.
In my opinion it does not effectuate the policies
of the Act to extend the Board's discretionary ju-
risdiction to noncommercial aspects of nonprofit,
charitable institutions except in unusual circum-
stances. Previously I have stated that I would
follow the policy set out in Ming Quong Children's
Center' and decline to exercise jurisdiction over
nonprofit, charitable institutions except where a
particular class of these institutions has a substan-
tial, demonstrated impact on interstate comrnerce.2
Such a policy of restraint is sound and, in my judg-
ment, necessary to conserve the Board's resources,
focus its efforts on substantial labor disputes, and
resolve those disputes expeditiously. The Board
can perform its statutory function effectively only
if it confines its jurisdiction to disputes of conse-
quence and refrains from attempting to regulate
employers whose activities are but remotely related
to industry and trade.
There is no showing here that social service or-
ganizations, such as the Employer, even if it had
gross annual revenues in excess of $250,000, would
have substantial impact on commerce. The Em-
ployer here counsels and refers families with prob-
lems and provides technical and consultative serv-
ices related to housing. These activities are essen-
tially local in nature and have little relationship to
industry. The Federation's operations, even had it
generated gross annual revenues in excess of
$250,000, would not represent a field of substantial
labor tension. Potential disputes would have rela-
tively minor consequences for commerce. My col-
leagues offer no evidence that this class of social
service organizations has any impact on interstate
commerce, only that 88 percent of the employees
engaged in these activities would be covered by
the new standard. I do not agree with my col-
leagues' setting of a monetary standard for asser-
tion of jurisdiction over these organizations.
1 210 NLRB 899 (1974). See also the dissenting opinions in Salvation
Army of Massachusetts, 271 NLRB 195 (1984); Michigan Eye Bank, 265
NLRB 1377 (1982); and m St Aloysius Home, 224 NLRB 1344 (1976), .
2 See my dissenting opinion in Alan Short Center, 267 NLRB 886
(1983).