Howard University

National Labor Relations Board - Board Decisions

Jun 10, 1974

211 N.L.R.B. 247 (N.L.R.B. 1974)

HOWARD UNIVERSITY
Howard University and Local 246, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Petitioner.
Case 5-RC-8757
June 10, 1974
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer William D.
Boetticher on December 4, "1973. Following the
hearing, and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the above-entitled matter
was transferred by the Regional Director for Region
5 to the National Labor Relations Board for
decision. Thereafter, the Petitioner and the Employer
filed briefs.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudical error. The rulings are hereby
affirmed.
Upon the entire record in this proceeding, includ-
ing the briefs filed by the parties, the Board finds:
The Employer moves to dismiss the petition on
grounds that here, as in Temple University, 194
NLRB 1160, there are special considerations which
warrant a judgment that the Board should not assert
jurisdiction over its operations. Petitioner opposes
this motion in reliance on Cornell University, 183
NLRB 329, and Section 103.1 of the Board's Rules
and Regulations and undisputed evidence establish-
ing, as the Employer concedes, that the University is
a private institution with annual gross revenues in
excess of $1 million. For the reasons set forth below,
we find merit in the Employer's position.
Howard University was established as an educa-
tional institution under a charter issued to it by the
United States Congress in 1867. Its primary purpose
is to provide educational opportunities for Black
students and other minorities, but without denying
its services to others on the basis of race, creed, or
national origin. Historically, its operations have been
funded, in part, by the Federal Government-at the
early stages on an ad hoc basis, and, since 1928,
under legislation amending the charter to authorize
annual appropriations therefor. To qualify for receipt
of funds appropriated by Congress, Howard must
accord to the Secretary of Health, Education and
Welfare (HEW), or his designee, the "authority to
visit and inspect such university and to control and
supervise the expenditure therein of all moneys paid
' At the last congressional hearing, the University was required to give
specific details on the faculty salary structure by school and by rank
247
under said appropriations." 20 U.S.C. 123. More-
over, Howard must be open to inspection by the U.S.
Office of Education at least once a year, and the
Office of Education must present an annual report to
Congress on the affairs of the University.
Unlike any other comparable institution, Howard
University receives its funds from Congress as a line
item in HEW's annual budget. HEW and ultimately
the Office of Management and Budget (OMB)
determine what amount of the HEW appropriation
request will be allocated to Howard, and also the
specific programs for which the funds will be
requested. Therefore, Howard must prepare an
itemized budget request, using the same form as
Federal agencies, and submit it along with written
justifications to HEW. Officers of the University are
called upon to testify concerning Howard's appropri-
ation request before OMB budget examiners and the
appropriations subcommittees of the House and
Senate.' After receiving its appropriations, Howard
can expend funds only for the purpose for which
they were allocated. The University is subject to
annual audits by HEW and the General Accounting
Office (GAO).
The congressional appropriations are allocated
generally in three categories:2 (1) funds for its
academic program (excluding the school of religion);
(2) funds for Freedmen's Hospital, transferred to
Howard from the Federal Government in 1967; and
(3) funds for construction. Appropriations for the
academic program increased steadily in the years
1965 to 1972 from $9,843,000 to $31,633,000. The
percentage of Federal funds in the total academic
budget ranged from 49.3 percent to 67.2 percent
during these years, with only the 1966 and 1971
appropriations falling below 50 percent of the total
academic budget. Appropriations for Freedmen's
Hospital during the years 1968 to 1972 ranged from
58.5 percent to 68 percent of the total hospital
budget. Although Howard holds title to all its land
and buildings, it receives 100 percent of its construc-
tion funds (excluding only funds expended for
construction related to the school of religion) from
the Federal Government. Moreover, construction
funds cannot be expended directly. Rather, they are
transferred to the General Services Administration
(GSA) for selection of the contractor and supervision
of constructions. Howard is also required, when
expending Federal funds, to purchase any item
costing over $2,500 through GSA on a bid basis.
Until January 1, 1973, the money for the University's
employees' salaries was in the United States Treasury,
and the employees' salaries were paid on United
States Treasury checks. Although funds are no longer
2 More specific allocations are made within each general category.
211 NLRB No. 11
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kept in the United States Treasury for this purpose,
Howard is required to keep the funds in a bank
approved by HEW. Salary checks are now issued by
the University.
It has been and is Howard's policy to maintain
comparability between its employees' wages and
fringe benefits and those of Federal employees. To
this end, the University's nonfaculty employees are
classified under the same wage scales that the
Federal Government uses to classify similar employ-
ees. Each time that Federal Government employees
have received an increase in their rates of pay,
Howard has requested additional appropriations to
achieve parity for its. employees and these requests
have always been granted. Nonfaculty employees
receive the same annual and sick leave benefits as the
Federal employees.3
It appears clear from the foregoing facts that there
exists a special relationship between Howard and the
Federal Government-one rooted in the historical
events associated with the Civil War and plainly
founted by the Nation's interest in insuring that
Blacks and other members of minority groups shall
not be disadvantaged for arbitrary or invidious
reasons in pursuing educational goals. Since its
establishment in the Nation's capital in 1867,
Howard's operations have been continuously subsi-
dized by the Federal Government and, in the past
several decades at least, in amounts providing the
major portion of the University's financial needs.
The Federal Government's interest in Howard's
financial affairs far exceeds, in degree, that normally
associated with the Government's customary funding
of specific university projects, and is uniquely
characterized by the involvement of several Federal
Agencies at several levels. Congressional committees
have questioned Howard's officials about the faculty
structure of the University by school and rank.
Congress' imposition of statutory requirements for
inspection and access to Howard's financial records,
budgets, accounts, and its physical facilities variously
delegate lines of authority to a number of officials of
OMB, HEW, and GAO, among others. Facilitated,
perhaps, by the location of the University within the
seat of the Federal Government, implementation of
these statutory requirements is accomplished, to a
large extent, through the medium of personal
conference and consultation between the Federal
officials authorized to oversee various aspects of
Howard's financial operations and the university
officials responsible therefor, with resulting benefits
to the University as such and the important public
interest in its institutional services. We note, for
3 Congress has provided that the employees of Freedmen's Hospital,
who were employed before the Government transferred the hospital to
Howard , may retain their eligibility to participate in the Federal Govern-
example, that only recently the officials of the Office
of Education of HEW personally inspected the
University's library facilities and, in a report based
on that inspection, made certain recommendations
for construction of additional facilities and the
purchase of additional books. Using that report as a
justification, Howard sought and received additional
funds from the Congress for the recommended
purposes.
The interrelationship between the Federal Govern-
ment and Howard and cognizance of the important
national interests which formed its base have
unquestionably operated as moving factors in How-
ard's adoption of personnel policies for its rank-and-
file employees closely paralleling those of employees
of the Federal Government. Howard has, for many
years, customarily provided substantially the same
pay scales, pay raises, and sick and vacation leave
benefits for all nonfaculty employees as those
granted by the Federal Government to its employees.
And, until recently, its salary moneys were paid by
U.S. Treasury checks.
All of the foregoing facts, taken together, persuade
us that Howard enjoys a unique relationship with the
Federal Government unmatched by any other
university to which our discretionary jurisdictional
yardsticks apply. We are persuaded, further, that,
because of that unique relationship, effective use of
the collective-bargaining process by the University
and its employees in the manner and for purposes
contemplated by the Act would entail the involve-
ment of many Federal Agencies-entities over which
we, of course, have no jurisdiction. In these circum-
stances, we believe it would be inappropriate for us
to assert jurisdiction over the University, and, in our
discretion, we decline to do so. Accordingly, we shall
dismiss the petition.
ORDER
IT IS HEREBY ORDERED that the petition filed herein
be, and it hereby is, dismissed.
MEMBERS FANNING and PENELLO , dissenting:
This Board decided in Cornell University, 183
NLRB 329, that:
[A]ssertion of jurisdiction is required over those
private colleges and universities whose operations
have a substantial effect on commerce to insure
the orderly, effective and uniform application of
the national labor policy.
In Temple University, 194 NLRB 1160, a majority
ment retirement program, and the right to use Federal insurance carriers
other than Blue Cross.
HOWARD UNIVERSITY 249
of the Board, acknowledging that the university in
that case satisfied all the established criteria for
assertion of the Board's jurisdiction, found a "unique
relationship" between the university and the Com-
monwealth of Pennsylvania and concluded therefore
that under the "special circumstances of this case" it
would not effectuate the purposes of the Act to assert
jurisdiction. Now a majority finds in the instant case
another "unique" university-government relationship
warranting, in its opinion, declination of jurisdiction.
The facts are so different and so much less
compelling than those in Temple, however, as to
suggest that the exception for "special circum-
stances" is about to outdistance the rule of general
applicablity.4
The majority in Temple concluded that Temple
University, although in form a private institution,
had in fact become a quasi-public institution provid-
ing low cost higher education to Pennsylvania
residents. In so concluding, the majority relied on the
fact that pursuant to a statute entitled the Temple
University-Commonwealth Act the university was
designated as an "instrumentality" of the Common-
wealth and expressly made a "State-related universi-
ty in the higher education system of the Common-
wealth," that the Commonwealth has paid for and
owns the land and buildings comprising a significant
part of the university's physical plant, that one-third
of the board of trustees is appointed by elected
commonwealth officials, and that the Common-
wealth plays a "substantial, if not controlling" part in
the university's financial affairs, along with concomi-
tant control over its activities. Noteworthy also is the
fact that as an "instrumentality" of the Common-
wealth, Temple is a "public employer" under
Pennsylvania's Public Employees Relations Act.
Aside from the financial aid and some measure of
governmental policing of the expenditure of funds,
none of the facts which made Temple's relationship
with the State (Commonwealth) "unique" are present
here . There is no evidence that Howard has been
required to cede its administrative independence to
the public entity upon which it relies for support, and
there is no evidence that it has done so. Government
funding has been rejected up to now as a sufficient
basis for establishing an educational institution as
quasi-public and exempt from the Board's jurisdic-
tion.5 Rejection of government funding as a basis for
declining jurisdiction is the only result consistent
with our assertion of jurisdiction over employers in
other industries, such as shippers shipping in U.S.
4 Member Fanning would have asserted jurisdiction in Temple and
dissented in that case . He would assert jurisdiction over the Employer, for
the reasons stated in this opinion.
5 Minneapolis Society of Fine Arts, 194 NLRB 371, Cornell University,
supra. In Minneapolis Society the Board did not consider dispositive even the
direct payment of employees by the city. In Cornell the Board asserted
flag-bearing ships, who receive substantial subsidies
from the Federal Government. A ruling to the
contrary would be anomalous indeed in view of the
regularity with which we assert jurisdiction over
government contractors, even those who are totally
dependent on government business.
It is the standard that we apply to government
contractors which provides the only sound basis for
determining whether it would effectuate the purposes
of the Act to assert jurisdiction. Certainly the
Government exerts no greater control over the overall
operations of Howard University than it does over
the manner in which certain of its contractors or
recipients of its subsidies perform their specified
functions. The proper question to be asked, there-
fore, is whether enough authority over labor relations
is lodged in the University to enable a satisfaction of
bargaining obligations under the Acts The only
bargaining obligations which the proceeding before
us could create, it should be remembered, are limited
to the terms and conditions of employment of the
full-time faculty members of the law school.
Significantly, the majority relies on Howard's wage
and benefits policies regarding its nonfaculty em-
ployees. The only specific reference to governmental
interest in faculty matters is the majority's statement
that "Congressional committees have questioned
Howard's officials about the faculty structure of the
University by school and rank." Surely this cannot
justify declination of jurisdiction. Greater detail is
given as to the University's maintenance of compara-
bility in wages and fringe benefits between its
nonfaculty employees and Federal employees. Ex-
cept for a statutory continuation of certain benefits
to employees of Freedmen's Hospital who were
formerly Federal employees, however, Howard is not
specifically restricted in any way with regard to
personnel or labor relations policies. Its current
practice of tracking certain Federal employees
policies is analogous to the practice of any private
employer who chooses to remain competitive in the
labor market with the industry leaders by such
tracking. Whatever Howard's reasons may be, it is a
choice, not a compulsion. In short, no showing has
been made that Howard has so little discretion in the
conduct of its labor relations, even among employees
outside the unit requested here, as to negate the
jurisdiction over "contract" colleges which are publicly acknowledged as
state institutions, funded by the State . Cornell also had research contracts
amounting to $26 million from various agencies of the Federal Government
6 Herbert Harvey, Inc v. N.L.R.B., 424 F.2d 770, 778 (C.A.D.C. 1969),
enfg. 171 NLRB 238; N.LR.B. v. E. C. Atkins & Company, 331 U.S. 398,
412-414; Marianas Stevedoring & Development Co, Inc, 182 NLRB 1043.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits of collective bargaining recognized by the
Act.7 But beyond ignoring the precedent that we
think is applicable to this case, the majority has
ignored the fact that the University already engaged
in collective bargaining with several employee
groups, including organizations of its nurses, plumb-
ers, and plant maintenance employees, and that it
has negotiated collective-bargaining agreements with
these unions which are currently in effect. Do we
know enough to conclude that this collective-bar-
gaining activity has been an exercise in futility?
Regardless of whether collective bargaining has yet
come to Howard, but bearing in mind that it has,
what legitimate interest is served by declining
jurisdiction? The majority states that here effective
collective bargaining as contemplated by the Act
would entail the involvement of many Federal
agencies over which we have no jurisdiction. Who
then would, or should, have jurisdiction over collec-
tive bargaining between the University and its
employees? The employees are not public employees
as the employees of Temple University are, so they
could not come under either a Federal or a District
of Columbia public employment relations arrange-
ment, statutory or otherwise. This Board assumes
plenary jurisdiction over private sector labor relat-
ions in the District of Columbia, so there is no
foreseeable possibility of a District agency coming
into existence which could assert jurisdiction. What
has been created here is a permanent no-man's land,
7 Cf. cases cited in fn . 6, supra; Great Southern Chemical Corporation, 96
NLRB 1013; Geronimo Service Company, 129 NLRB 366.
8 Cornell University, supra.
9 E.g., Seattle Real Estate Board, 130 NLRB 608.
a result manifestly contrary to the thrust of Section
14(c) of the Act.8
This distinguishes the instant case from those in
which the Board has declined to assert jurisdiction
because the business involved was considered to be
essentially local in nature9 or in which state assertion
of jurisdiction was thought to be preferable.10 But
leaving aside the particular circumstances which
make declination of jurisdiction so pointedlyunsuit-
able here, the majority's reasoning, resting as it does
on the "involvement" of governmental agencies over
which this Agency has no jurisdiction, opens the
door to a whole new sphere of labor relations not
subject to any legislative attempts at comprehensive
regulation. For if state labor relations agencies follow
the same rationale, they will also decline jurisdiction
wherever other governmental agencies are sufficient-
ly "involved" in the financial affairs of private
employers, regardless of who actually conducts their
labor relations.
In Cornell we changed our policy regarding the
assertion of jurisdiction over private universities,
realizing that increased Federal financial involve-
ment was a significant factor favoring assertion.11
Now the majority declines jurisdiction because the
Federal involvement is too substantial. We think the
Cornell approach is the right one, and, except in
situations where the Government is in effective
control of the conduct of labor relations as spelled
out in prior decisions, we would follow it.
10 E.g., Centennial Turf Club, Inc., 192 NLRB 698.
11 Accord: Butte Medical Properties, d/b/a Medical Center Hospital, 168
NLRB 266, 267 (assertion of jurisdiction over proprietary hospitals).