Huckleberry Youth Programs

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1272 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
Huckleberry Youth Programs and Service Employees
International Union, Local 790, AFL–CIO, Peti-
tioner. Case 20–RC–17345
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On December 24, 1997, the Regional Director for Re-
gion 20 issued a Decision and Direction of Election (per-
tinent portions of which are attached as an appendix)
finding that a certain group of workers–Peer Health Edu-
cators–are not statutory employees and thus should not
be included in a unit of program employees of the Em-
ployer.1 Thereafter, in accordance with Section 102.67
of the Board’s Rules and Regulations, the Petitioner filed
a timely request for review. The matter was considered
by a panel of the Board and on January 27, 1998, a ma-
jority of the panel granted review.2
Having reviewed the record, the Board has determined,
contrary to the Regional Director, that the Peer Health
Educators (PHEs) are employees within the meaning of
Section 2(3) of the Act and share a sufficient community
of interest with the program employees to be included in
that unit. Accordingly, we reverse his decision and re-
mand this matter to him for appropriate action.
I. FACTS
The Employer is a nonprofit social service agency
providing services to young people in San Francisco and
Marin County, California. The Petitioner seeks a unit of
all full- and part-time program employees. There are
approximately 40 employees in the unit sought, 5 of
whom are PHEs.3 The employee status and unit place-
ment of these five PHEs was the only issue presented to
the Regional Director.
The five PHEs are assigned to two of the Employer’s
four locations in the Bay Area. As found by the Re-
gional Director, PHEs work part time in connection with
the Employer’s program to provide crisis, health, and
other support service to at-risk youth. The Peer Health
Education Program is based on four basic principles:

(1) Young people are more receptive to their
peers’ views than to adults’.
(2) The experience of young people makes them
more qualified than adults to discuss youth topics.
(3) While abstinence may be taught, the most
important first step is the reduction and limiting of
harmful behaviors among the target population.
(4) The personal sharing of experience with peers
(PHEs) provides a basis for education and an oppor-
tunity for growth and learning for the targeted at-risk
youth.

1 As certain of the employees sought by the petition are professional,
the Regional Director directed an election pursuant to Sonotone Corp.,
90 NLRB 1236 (1950).
2 Members Liebman and Hurtgen, Member Brame dissenting.
3 Five other PHEs working at the Employer’s facilities are employed
by Americorp. The Parties agree that they are not included in the unit.

The roles for the PHEs in this program are varied.
They conduct orientations by greeting youth in the clinic
waiting room, providing them with refreshments, and
facilitating group discussions around video presentations.
They also conduct outreach programs in the community.
This outreach effort is aimed at high-risk youth and seeks
to draw them into the clinic. As the program manager of
the Montecito clinic testified, the PHEs “really are for us,
the bridge between the community and our program.”
The Employer acknowledges that the primary qualifi-
cation for a PHE is the ability to relate to the target popu-
lation. In making a PHE hiring decision, the Employer
will seek people who have the same kind of problems as
the target population and if two people applied for a job
and one had “excellent support systems” and the other
did not, the Employer would “probably” select the per-
son who could use its services. When they have utilized
the Employer’s services, PHEs have obtained assistance
on matters such as health care, tuition, moving expenses,
clothing, furniture, and parental mediation.
PHEs are paid $6 per hour while other program em-
ployees receive more–prevention case managers and
residential counselors at a range of $8.50–$10 per hour
and case managers a range of $10.50 to $12.50 per hour.
PHEs do not receive benefits available to the full-time
program employees such as insurance, disability cover-
age, and vacations. However, this is only because, as the
Employer’s employee handbook states, insurance bene-
fits are available only to employees who work at least 30
hours per week and vacation benefits are available only
to regular full-time employees.
The PHE program is budgeted to permit a total of 90
hours per week. A particular PHE must work a mini-
mum of 10 hours and no more than 30. PHE working
hours are flexible depending on whether a PHE is in
school or not. They work according to a published
schedule, are given particularized assignments (when and
where to be), and sign timesheets. PHEs attend all em-
ployee staff meetings but do not attend treatment and
client review meetings because of the confidential mate-
rial discussed.
The Regional Director found that the average age of
PHEs when hired is 16 and that their average term of
employment is 1 year. That finding appears to be based
on testimony that some stay a week and others 3 to 4
years and that employees in other job classifications
“usually stay longer.” PHEs generally leave their jobs
because of age (they no longer represent the client base),
because they become skilled in other work or because
they become bored and want to do something else.
However, PHEs could begin work at age 16 and stay
until their early 20s.
326 NLRB No. 127
HUCKLEBERRY YOUTH PROGRAMS 1273
Since the program started in 1989, 32 individuals have
worked as PHEs, 4 of whom later moved into other posi-
tions with the Employer. There is a senior PHE position
that is paid 50 cents an hour more than a PHE. While the
record does not describe the duties of a senior PHE, there
is no contention that the position has supervisory respon-
sibilities.
PHEs meet weekly with their supervisors. These meet-
ings include discussions of business matters, but could
also involve “lifestyle” issues that might have arisen in
the life of the PHE. The Employer’s witness acknowl-
edged, however, that if and when such discussions do
occur, the supervisor “is doing what a supervisor gener-
ally would do, that is, seeking to determine if there are
problems that can be dealt with to make the worker a
better worker.” The Regional Director did find that su-
pervisors spend more time with PHEs in a week (3–5
hours) than with other unit employees (1 hour).
The Employer contends that PHEs receive more train-
ing than do other unit employees. An employer witness
stated that PHEs are in “training at all times” which she
defined as “learning how to be in the world.” However,
the training was more fully described as training “in dif-
ferent areas they’ll be doing workshops on, HIV, preg-
nancy prevention, drugs and alcohol, presentation skills,
group facilitation skills, and how to represent the agency
in the community. They’re not expected to know those
things when they come into the position.” Other pro-
gram employees, the Employer stated, are expected to be
“job ready.”
The Employer points out that it is more flexible with
PHEs than with unit employees when dealing with mat-
ters of employee performance. PHEs are, however,
evaluated and can be disciplined and fired. PHEs are
subject to the Employer’s employee handbook but also
have their own separate manual.
II. CONTENTIONS OF THE PARTIES
The Employer argues that its PHE program seeks to
improve the general life skills and independent living
skills of the PHE as well as provide them with job train-
ing. Thus, it contends that the peer education program is
designed to improve the quality of the lives of the PHEs
and that PHEs are treated differently from other employ-
ees. They receive lower salaries, do not receive benefits,
have more flexible work schedules and are subject to
different discipline and performance expectations. Ac-
cordingly, the Employer contends that PHEs are not em-
ployees under Section 2(3) of the Act in that their rela-
tionship with the Employer is “primarily rehabilitative
and working conditions are not typical of private sector
working conditions.” Further, the Employer contends
that even if the PHEs are employees, they should be ex-
cluded from the programwide unit because they do not
share a community of interest with those employees.
The Petitioner, on the other hand, argues that the PHEs
do not come within those cases in which the Board has
found that individuals working for a social service
agency are “clients” rather than employees of those
agencies. See, e.g., Goodwill Industries of Denver, 304
NLRB 764 (1991). Rather, the Petitioner contends that
the PHEs and the Employer have a business relationship
and that there is no requirement that a PHE be involved
in any self-rehabilitation effort in order to obtain or
maintain his or her employment relationship. The Peti-
tioner argues that the PHEs are therefore statutory em-
ployees and that they have a community of interest with
those in the proposed unit.
III. ANALYSIS
As noted, this case presents two issues, the employee
status of PHEs and, if that status is found, their commu-
nity of interest with the unit of full-time and regular part-
time nonprofessional program employees. The Regional
Director found that the relationship between PHEs and
the employees is more rehabilitative than business-like in
nature. We disagree.
Initially, and most significantly, we note that there is
no requirement that a PHE become or even be a client.
While they come from the “peer” group, that means only
that they are teenagers. That some of them may also use
the Employer’s services is not a requirement of their
jobs. Further, the PHEs were not referred to the Em-
ployer by a state agency for rehabilitation purposes.4
Nor are these individuals who need a sheltered work
atmosphere. Indeed, a PHE is charged with going out to
recruit clients for the Employer’s services. The fact that
these individuals are selected because potential “custom-
ers” may relate to them in no way suggests that they need
the Employer’s services or that their relationship with the
Employer is “primarily rehabilitative and working condi-
tions are not typical of private sector working condi-
tions.”5 They are recruiters who work with an age-
specific client population when and where they find
them. The fact that some of the PHEs may also use the
Employer’s services because they are in that same age-
specific population does not make their relationship with
the Employer less business-like and thus warrant a non-
employee finding. They clearly were not hired because
they are in need of the Employer’s services and, in fact,
some PHEs never use those services. Rather, they are
hired because they can relate to potential clients.
There is some difference between PHE working condi-
tions and those of other unit employees, but the fact is
that the PHEs are teenagers, often in their first jobs.
Thus, the additional training, closer supervision, and
greater tolerance provided PHEs by the Employer does

4 Cf. Goodwill Industries of Tidewater, 304 NLRB 767 (1991), and
Goodwill Industries of Denver, 304 NLRB 764 (1991).
5 Goodwill Industries of Denver, supra at 765.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
not appear to be substantially different than that provided
in other teenage employment situations.
We find on the record here that the relationship be-
tween the PHEs and the Employer is a business relation-
ship bearing little, if any, of the attributes that have
prompted us to find nonemployee status because of a
rehabilitative relationship. Quite simply, these are part-
time employees who are young and in their first em-
ployment situation, and thus likely in need of employ-
ment training. While they may in some cases use the
Employer’s services, they are not in need of rehabilita-
tion. Indeed, as the record indicates, a youth does not
have to be in need of or to utilize the Employer’s ser-
vices in order to be a PHE. Accordingly, we find the
PHEs to be employees within the meaning of Section
2(3) of the Act.
With respect to the community-of-interest issue, the
fact that the wages of PHEs are different from employees
in other classifications and that PHEs do not receive cer-
tain benefits is not a basis for excluding PHEs from the
overall unit of the program employees. They are part of
the Employer’s overall program in that they are function-
ally integrated with the rest of the workforce. They do
not have the same benefits because of an Employer deci-
sion to limit certain benefits to full-time employees.
While they do not share common immediate supervision,
secondary and overall supervision is the same. Most
importantly, it appears that their inclusion would result in
an overall unit of all of the Employer’s program employ-
ees, and the Petitioner is requesting this presumptively
appropriate unit. Their exclusion, as we have found
them to be employees, would create a residual unit,
which the Board seeks to avoid. In these circumstances,
their inclusion in the unit is clearly warranted. See
Airco, Inc., 273 NLRB 348 (1984), and Livingstone Col-
lege, 290 NLRB 304 (1988).
ORDER
The decision of the Regional Director is reversed and
this matter is remanded to the Regional Director for fur-
ther appropriate action.

MEMBER BRAME, dissenting.
Essentially for the reasons set forth in the attached de-
cision of the Regional Director, I would not find the Peer
Health Educators (PHEs) to be statutory employees. I
wish to emphasize several points, however.
In Goodwill Industries of Denver, 304 NLRB 763, 765
(1991), we set forth a test for determining employee
status in a rehabilitative setting:

When the [employment] relationship is guided to a
great extent by business considerations and may be
characterized as a typically industrial relationship,
statutory employee status has been found. When the
relationship is primarily rehabilitative and working
conditions are not typical of private sector working
conditions, however, the Board has indicated it will not
find statutory employee status.

Like the courts, however, I believe the Board has often
misapplied its own test. See Baltimore Goodwill Indus-
tries v. NLRB, 134 F.3d 227 (4th Cir. 1998); Davis Me-
morial Goodwill Industries v. NLRB, 108 F.3d 406 (D.C.
Cir. 1997).
As found by the Regional Director, the key indicia fa-
vor a finding that these individuals are not employees
within the contemplation of the Act; it is this aspect of
his decision that I stress.
Discipline. PHEs are not subject to the same discipli-
nary standards as employees. The Regional Director
found that the Employer has different performance ex-
pectations for PHEs, and anticipates they will engage in
“inappropriate work behaviors,” including showing up
drunk for work, failing to show up for work at all for
days, and forming “inappropriate relationships with cli-
ents.” Such misconduct is usually treated with counsel-
ing and “a contract for improved performance.” In com-
parable situations, employees are placed on administra-
tive leave while the misconduct is investigated for possi-
ble further discipline.
Duration of Employment. Because the “peer group”
target population is between the ages of 16 to 22, PHEs
must be in this age range, while there is no age qualifica-
tion for employees. Employers typically prefer em-
ployee retention to reduce training costs, but the average
length of PHE employment is only one year.
Support Services and Training. PHEs are encouraged
to use the Employer’s support services. The Regional
Director found that these have included “paying their
tuition; providing health care services; case management
services, clinical therapy services; advocating for PHEs
with their teachers; performing mediation with their par-
ents; providing furniture for their homes; and co-signing
on their loans.” There is no evidence these services are
available to employees.
Unlike employees, PHEs are not expected to be “job
ready” when hired. They receive 30 hours of intensive
personal training before beginning regular work, while
other employees receive only 5 hours of “orientation type
training.” PHEs receive continuing job-related training
on a weekly basis, and, as necessary, other training,. such
as for literacy and independent living, all in contrast with
employees.
Wages, Hours, and Employer’s Benefits. PHEs re-
ceive wages at the rate of $6 an hour, while other em-
ployees (to the extent shown by the record) make be-
tween $8.50 and $12.50 an hour. In contrast to most em-
ployees, PHEs work part time; current PHEs work be-
tween 10 and 28 hours per week and are accorded sig-
nificant flexibility in scheduling. Except for holidays,
PHEs do not receive benefits enjoyed by regular employ-
HUCKLEBERRY YOUTH PROGRAMS 1275
ees, which include health, dental, life and disability in-
surance, and vacation time.
Supervision and Substitution. PHEs are supervised
separately from employees and do not substitute for em-
ployees.
In sum, in my judgment, the record fully supports the
Regional Director’s refusal to classify PHEs as statutory
employees.
APPENDIX
DECISION AND DIRECTION OF ELECTION
Issue Presented. The only issue presented herein is whether
five employees employed by the Employer as peer health edu-
cators (PHEs) should be included in the petitioned-for unit.1
The Petitioner contends that the PHEs are statutory employees
who should be included in the unit based on their community of
interest with other unit employees. Contrary to the Petitioner,
the Employer asserts that the PHEs are not employees under the
Act and should be excluded from the unit. In the alternative,
the Employer asserts that the PHEs should be excluded from
the unit because they do not share a community of interest with
the other unit employees.
Background. The Employer provides crisis, health and sup-
port services to at-risk young people and their families in the
San Francisco Bay Area. The record reflects that the Em-
ployer’s peer health education program began in Marin County
and in San Francisco, California, in 1988 and 1989, respec-
tively, with a grant from the Center for Disease Control to pro-
vide HIV prevention and education to at-risk youth in the
community. Since its inception, the focus of the program has
been broadened to include the provision of services dealing
with teen pregnancy, substance abuse, decision-making, self-
esteem, and other youth related issues.
The Employer’s Locations. The Employer operates at five
locations in the San Francisco Bay Area, including two residen-
tial facilities, two health clinics, and an administrative office.
In San Francisco, it operates the Cole Street Youth Clinic
where it provides primary medical care, psychosocial services,
and a peer health education program. The Cole Street Youth
Clinic serves about 1600 young people a year. Also in San
Francisco, the Employer operates Huckleberry House, a 12-bed
shelter for runaway youth that serves about 650 children and
teens a year. The Employer maintains a separate administrative
office at its central headquarters on Geary Boulevard in San
Francisco.
In Marin County, the Employer operates Huckleberry Teen
Health Program at Montecito Plaza in San Rafael, California
(Montecito Clinic), which provides adolescent health care ser-
vices, peer health education, and psychosocial services. At
Nine Grove Lane Shelter in San Anselmo, California (Nine
Grove Lane), the Employer operates a 6-bed shelter for young
persons who are experiencing family problems, abuse, or ne-
glect.
The Employer’s Managerial and Administrative Staff. The
Employer is headed by Executive Director Bruce Fisher and

1 The PHEs at issue were identified as Pearl Brown, Monique
Mayer, and Myrna Valderrama who are employed at the Employer’s
Cole Street Youth Clinic in San Francisco; and Myra Bueno and Victor
Gonzales who are employed at the Employer’s Huckleberry Health
Teen Program at Montecito Plaza in San Rafael.
Deputy Executive Director Michelle Magee. Both Fisher’s and
Magee’s offices are located at the Employer’s administrative
office on Geary Boulevard. in San Francisco. The Employer’s
human resources and personnel functions are handled by Vicki
Schwartz, the director of administration and development, who
also works at the administrative office. Susan Castillo and
Joanell Serra are the associate directors of the San Francisco
and Marin County programs, respectively. The Employer em-
ploys at each of its facilities, a program manager: Rebecca
George at Huckleberry House; Cynthia Bott at the Cole Street
Youth Clinic (Bott also has the title of psyhcosocial services
director); Lisa Sterner at Montecito Clinic; and Carol Harvey at
Nine Grove Lane.
The Employer employs several administrative and clerical
employees at its administrative headquarters, whose exclusion
from the unit is not disputed by the parties, including a fiscal
director; a community relations coordinator; a project coordina-
tor; an office manager; a bookkeeper; a development assistant;
an assistant to the executive director; and an assistant to the
fiscal director.
The Employer’s associate director for San Francisco, Susan
Castillo, testified that at the Cole Street Youth Clinic, the Em-
ployer operates in a partnership with the State of California
Department of Public Health. The Department of Public Health
operates special youth programs at the site and employs its own
medical staff there, including family nurse practitioners, regis-
tered nurses, health workers, two licensed clinical social work-
ers, a licensed vocational nurse/psych tech, and an administra-
tive staff person.
At the Cole Street Youth Clinic, the Employer employs ap-
proximately five paraprofessionals, including two case manag-
ers; one on duty case manager; and two prevention case man-
agers. In addition, the Employer employs at this facility three
of the five PHEs at issue herein; Program Manager/Psycho-
social Services Director Cynthia Bott; Peer Education Coordi-
nator Dale Frett; and Office Manager Melissa Egan.
The case managers carry case loads and provide counseling
services and teach independent living skills to the Employer’s
clients. They assist clients in getting into school; finding hous-
ing; and they provide supportive counseling. They earn be-
tween $10.50 and $12.50 per hour.
The on duty case manager, who is also categorized by the
Employer as a case manager, is responsible for dealing with
crises that arise in the clinic; for handling the intake of clients;
and for substituting when other staff people (i.e., case managers
and prevention case managers) are on vacation. The on duty
case manager does not carry a [sic] own caseload unless an-
other staff member goes on vacation and she is overseeing their
cases. She provides minimal support services (e.g., counseling,
housing, food, and transportation vouchers) to clients of other
staff members. If she is absent from work, the case managers,
prevention case managers or therapists fill in for her. The on
duty case manager is paid at a rate similar to that of the case
managers.
The two prevention case managers at the Cole Street Youth
Clinic are case manager trainees. The Employer’s associate
director for San Francisco Programs, Susan Castillo, referred to
them as “junior case management positions.” According to
Castillo, their duties overlap with those of the on duty case
manager. They carry their own small case loads, sometimes
handle client intakes, and perform other administrative tasks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
The pay rate for the prevention case managers ranges from
$8.50 to $10 an hour.
The Employer also employs a family mediation counselor at
the Cole Street Clinic. The record does not disclose the duties
or pay rate of this employee. The three PHEs who work at the
Cole Street Youth Clinic are discussed below along with the
two PHEs who work at the Montecito clinic.
At Huckleberry House in San Francisco, the Employer em-
ploys regular and on-call residential counselors I and II. Resi-
dential counselors I are responsible for the day-to-day living of
the clients who live at the residential shelter (e.g., getting them
up in the morning; helping them to do chores; and getting them
to school, therapy sessions, and other appointments). Residen-
tial counselors II perform a function similar to case managers in
that they set preliminary case plans prior to those plans being
transferred to the Cole Street Youth Clinic. They also help
clients locate stable housing; help them to get enrolled in
school; and help them with school related issues.
At the Montecito Clinic in San Rafael, the Employer em-
ploys case managers; on duty case managers; prevention case
managers; two PHEs; Psychosocial Services Coordinator Robin
Bertoli; Latino Youth Services Coordinator Jose Hernandez;
and Office Manager Nancy Jorth. The Employer’s associate
director for Marin Programs, Joanell Serra, and Peer Education
Coordinator Myel Jenkins also work at this location.2 At the
Montecito Clinic, there are also five peer educators who are
employed by AmeriCorp3 and not by the Employer.
At the Nine Grove Lane Shelter in San Anselmo, the Em-
ployer employs residential counselors as at Huckleberry House
in San Francisco and also family counselors and a family advo-
cate.
The Peer Health Education Program. The Employer’s peer
health education program is directed towards improving the
health and welfare of at-risk teenagers. The record contains a
policies and procedures manual for the Peer Health Education
program that describes the program as based on four basic prin-
ciples: that young persons are more likely to listen to their
peers than to adults; that young people are more qualified to
address youth topics because of their own experiences; that
while abstinence may be taught, the first and most important
step is to reduce and limit harmful behaviors among the target
population; and that the personal sharing of experiences by
peers (i.e., PHEs) provides a basis for education and an oppor-
tunity for growth and learning by other young persons.
In fulfilling the mission of the program, PHEs provide vari-
ous services for at-risk young persons at the Cole Street Youth
Clinic and at the Montecito Clinic. At the Cole Street Youth
Clinic, the three PHEs conduct clinic orientations by greeting
youth who come into the waiting room; by providing them with
food and drink; and by facilitating group discussions through
video presentations. The PHEs also provide peer outreach
programs in the community.
The program manager at the Montecito Clinic, Lisa Sterner,
testified that at the Montecito Clinic, the two part-time PHEs
employed by the Employer focus on workshops and community

2 As set forth above, the parties stipulated that Serra should be ex-
cluded from the unit as a managerial employee and/or a statutory su-
pervisor and Jenkins has been stipulated by the parties to be a statutory
supervisor who is excluded from the unit.
3 AmeriCorp is a Federal program administered through a fis-
cal/management agent called BAYAC which hires the peer educators
and places them with the Employer.
outreach programs and do not work in the clinic as do the PHEs
at the Cole Street Youth Clinic. Sterner testified that there are
five peer educators at the Montecito Clinic who are employed
by AmeriCorp and not by the Employer. According to Sterner,
the AmeriCorp peer educators are not in school and tend to be
older and more skilled than the PHEs. The AmeriCorp peer
educators do presentations; put on workshops in the commu-
nity; run school or community based peer health education
programs; and recruit and train volunteer peer educators in the
community. The AmeriCorp peer educators also work in the
clinic and handle the intake of clients for the Employer.
As indicated above, the PHEs focus on workshops and pres-
entations in the community and do not work in the clinic. They
do not perform counseling of clients as do the case managers,
prevention case managers, and on duty case managers; they do
not carry a case load; and they do not substitute for the other
petitioned-for employees.
According to the Employer’s associate director of San Fran-
cisco Programs, Susan Castillo, and the Montecito Clinic Pro-
gram Manager Lisa Sterner, the Peer Health Education program
is intended to be a social service intervention for the PHEs.
According to Castillo, the purpose of the program is to provide
the PHEs with training in independent living skills as well as
job training. While the Employer does not require the PHEs to
make use of the Employer’s services or to be clients of the
Employer, it encourages them to do so. Castillo testified that
five of the PHEs have been residents of the Employer’s facility
in San Francisco.
According to Castillo and Sterner, the Employer also en-
courages the PHEs to utilize the Employer’s other services and
in the past, the Employer has provided PHEs with many types
of support and services, including: paying their tuition; provid-
ing health care services; case management services; clinical
therapy services; advocating for PHEs with their teachers; per-
forming mediation with their parents; providing them with help
finding housing and moving into new housing; providing furni-
ture for their homes; and co-signing on their loans.
In hiring PHEs, Castillo and Sterner testified that the Em-
ployer requires applicants be persons whose age is within the
peer group of the target population which is from 16 to 22. The
average age of the PHEs when they are hired is 16 years old
and their average term of employment is 1 year. The require-
ment that they be within the age of the peer group they are serv-
ing is not a qualification required of any other employee hired
by the Employer. According to Sterner, the Employer also
seeks persons who have had similar experiences as the target
population and can relate to them and whom the Employer
believes could benefit from the Employer’s intervention pro-
gram.
Individuals hired as PHEs are not required to have any train-
ing while other employees hired by the Employer are required
to be “job ready,” and to possess the job skills necessary for
their positions when they are hired.
Sterner testified that once hired, the PHEs receive approxi-
mately 30 hours of intensive one-on-one training before they
are allowed to work in the community. Such training involves
information about the subjects they will be presenting work-
shops on such as HIV, pregnancy prevention, and drugs and
alcohol. The PHEs are also trained in presentation skills; group
facilitation skills; and how to represent the Employer to the
community. According to Sterner, after this initial intensive
training the PHEs have ongoing training every week. In addi-
HUCKLEBERRY YOUTH PROGRAMS 1277
tion to the training described by Sterner, Castillo testified that
the PHEs have also had training from the Employer in other
areas, such as learning to read and on independent living skills.
According to Castillo, the Employer’s peer health education
program is a “social service intervention and because we can’t
adopt these kids, we use job training as an intervention to im-
prove their quality of life.”
Sterner testified that employees other than the PHEs receive
a minimal amount of orientation type training of about 5 hours.
The Employer also offers other employees ongoing opportuni-
ties to take training offered in the community in order to en-
hance their professional development or skills.
The PHEs are paid a flat rate of $6 an hour. As set forth
above, the record reflects that the case managers and on duty
case managers earn between $10.50 and $12.50 per hour and
the prevention case managers earn between $8.50 and $10 an
hour. The record does not disclose the wage rates of the other
petitioned-for employees. The other petitioned-for employees
receive the same benefits from the Employer, including health,
dental, life insurance, disability, and vacation benefits. None of
these benefits are provided to the PHEs, with the exception that
the PHEs are given holidays if the rest of the staff is off for that
day. Castillo also testified that certain more senior PHEs have
also been unofficially granted time off. According to the Em-
ployer’s Peer Health Education handbook, the PHEs are also
given a paid lunch hour to be taken each day, preferably at
noon.
The PHEs work part time, according to scheduled times as
do other employees. However, the Employer gives the PHEs
much more flexibility in their schedule because of school or
other life situations that affect their work. The Employer is
budgeted at 90 hours a week for the PHEs. According to the
Employer’s Peer Health Education handbook, the part-time
PHEs must commit to work a minimum of 10 hours a week. At
the Cole Street Clinic, the three PHEs work 10, 15, and 28
hours per week, respectively. At the Montecito Clinic, the two
PHEs work from 12 to 16 hours a week. The PHEs must use
sign-in sheets to record their time worked.
All employees in the petitioned-for unit, including the PHEs,
are subject to the same personnel policies and procedures hand-
book which includes standards of conduct and disciplinary
policies (except that the PHEs do not receive the benefits out-
lined therein). In addition, as noted above, the Employer has a
policies and procedures manual that applies only to the PHEs.
This manual describes the program and its goals; working
hours; ethics; the need for punctuality; and other matters per-
taining to the PHEs’ work.
The PHEs have separate supervision from the other employ-
ees in the petitioned-for unit. At the Cole Street Youth Clinic,
the PHEs are supervised by Peer Education Coordinator Dale
Frett. Other employees at the Cole Street Youth Clinic are
supervised by Psychosocial Services Director and Program
Manager Cynthia Bott. Frett’s duties are to recruit, train, over-
see and implement the peer health education program. He also
provides supportive services to the PHEs similar to those pro-
vided by the case managers to the general client population.
The PHEs at the Montecito Clinic are supervised by Assistant
Peer Health Education Coordinator Myel Jenkins and the other
petitioned-for employees are supervised by Program Manager
Lisa Sterner. According to Castillo, the PHEs at the Cole Street
Clinic have about 5 hours of supervision per week while the
other employees in the petitioned-for unit are supervised ap-
proximately 1 hour a week. Sterner testified that at the Monte-
cito Clinic, the PHEs spend between 3 and 4 hours a week in
supervision.
According to Castillo, while the PHEs may be suspended or
terminated if they persist in inappropriate behavior, they are
not, in fact, subject to the same disciplinary standards as are
other employees. Castillo testified that because the average age
of the PHEs is about 16 years old when they come to work for
the Employer and, because they are hired in the belief that they
have the type of life situations that could benefit from the Em-
ployer’s program, the Employer has different performance
expectations for them and assumes that they will engage in
some inappropriate work behaviors. According to Castillo, the
Employer has had PHEs come to work intoxicated; form inap-
propriate relationships with clients; and for days fail to show up
for work or even call in. She testified that the Employer at-
tempts to use the inappropriate behaviors of the PHEs as learn-
ing tools for them. When misconduct by PHEs occurs, coun-
seling and a contract for improved performance is generally
implemented.
Castillo testified that the Employer would deal with miscon-
duct by other non-PHE employees much differently. Specifi-
cally, she testified that when similar situations had occurred
with other employees, the Employer has placed the employee
on administrative leave with pay and investigated the miscon-
duct in order to determine whether further discipline is war-
ranted. Castillo testified that PHEs have probably been termi-
nated but the record contains no evidence regarding such termi-
nations or other actual instances of discipline of PHEs or any
other employees. According to Castillo, most of the PHEs
decide to leave their employment not because they are termi-
nated but because they find other jobs or get tired of the work
they are doing. The Employer does not employ PHEs who are
beyond their early twenties.
Castillo and Sterner testified that the PHEs at the Cole Street
Youth Clinic attend staff meetings held twice a month for the
purpose of discussing business and logistics; attend a weekly
meeting with their supervisor; and attend a weekly meeting
with other PHEs, held primarily for training purposes. They do
not attend the weekly team treatment and client review meet-
ings because confidential material is disclosed about clients at
such meetings. In addition to the foregoing meetings, Sterner
testified that the PHEs at the Montecito Clinic attend a weekly
meeting with the other PHEs and AmeriCorp peer educators the
purpose of which is primarily skill development.
The PHEs do not substitute for any other employees. The re-
cord reflects that 3 or 4 former PHEs have moved to other posi-
tions with the Employer that they now occupy, including those
of case manager, prevention case manager, and Latino Coordi-
nator at the Montecito Clinic.
Analysis. The Employer contends that the PHEs should be
excluded from the unit because they are not statutory employ-
ees under Section 2(3) of the Act and because they do not share
a community of interest with other petitioned-for employees.
The Petitioner takes the opposite position.
In making the determination of whether persons such as the
PHEs are employees under Section 2(3) of the Act, the Board
examines the relationship between the employer and the em-
ployees at issue. When that relationship is guided to a great
extent by business considerations and may be characterized as a
typically industrial relationship, statutory employee status is
found. See Davis Memorial Goodwill Industries, 318 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
1044 (1995); Arkansas Lighthouse for the Blind, 284 NLRB
1214 (1987); Cincinnati Assn. for the Blind, Inc., 235 NLRB
1448 (1978). When the relationship is primarily rehabilitative
and working conditions are not typical of private sector work-
ing conditions, the Board does not find statutory employee
status. See Goodwill Industries of Tidewater, 304 NLRB 767
(1991).
In making its determination, the Board reviews the following
factors: whether the employees at issue are subject to produc-
tion standards and discipline as are other employees; whether
the employer provides counseling or social services to them
that are not provided to other employees; whether the em-
ployer’s operation has contemplated or resulted in long-term
employment for the employees; whether the employees at issue
receive similar wages as other employees; and whether those
wages are based on productivity or performance.
In the instant case, the record establishes that the Employer
does not hold the PHEs to the same disciplinary standards as its
other employees. Rather, it expects that the PHEs will engage
in misconduct because of their age and other factors and it
views their misconduct as providing opportunities for learning
and growth through counseling and treatment. Thus, while the
PHEs may be subject to the same types of discipline as are
other employees, the testimony in the record shows the Em-
ployer treats them in a rehabilitative manner when approaching
disciplinary issues.
Further, the record shows that the Employer offers the PHEs
intensive training aimed not only at teaching them the job skills
needed to perform the Employer’s job but also at teaching them
independent living and other skills necessary to work in the
private sector. In addition, the Employer provides the PHEs
with a variety of other social/rehabilitative type services, in-
cluding providing them with a home; tuition; health care; case
management services; help finding housing; furniture for their
homes; and cosigning their loans.
In addition, the PHEs can work for the Employer only be-
tween the ages of 16 and 22. While a few have taken other
positions with the Employer, the average length of time that
PHEs are employed with the Employer is only 1 year.
The PHEs are also paid a flat rate of $6 an hour, a rate sub-
stantially lower than that of the other petitioned-for employees.
They do not receive the same fringe benefits as the other em-
ployees. They are separately supervised and do not substitute
for other unit employees.
Based on the record as a whole and particularly on the fol-
lowing factors, I find that the Employer’s relationship to the
PHEs is more rehabilitative than business like in nature and that
the PHEs are not employees under the Act: the fact that the
PHEs are hired based at least in part on the likelihood that they
will benefit from the Employer’s intervention program; the fact
that the Employer encourages the PHEs to make use of its ser-
vices and has provided a number of them with many such ser-
vices, as described above; the fact that the PHEs receive much
more intensive training and supervision than do other employ-
ees and that such training covers areas beyond just those job
skills needed for their jobs with the Employer; the fact that the
Employer treats the PHEs differently from its regular employ-
ees in disciplinary matters; the fact that the Employer accords
the PHEs much more flexibility in their scheduling than it does
other employees because of their schooling and other life situa-
tions affecting their work; the fact that the PHEs are paid at a
rate of pay that is different from that of other employees and
they do not receive the same benefits as other employees; the
fact that the PHEs are separately supervised from other em-
ployees; they do not substitute for any other employees; and
finally, the fact that the Employer limits the term of the PHEs’
employment to their early twenties and that PHEs tend to be
short term employees. Accordingly, I find that the PHEs are
not employees under Section 2(3) of the Act and they are ex-
cluded from the unit.
Because I find that the PHEs are not statutory employees, it
is unnecessary to reach the issue of whether they share a com-
munity of interest with other unit employees. However, assum-
ing arguendo that the PHEs were employees under the Act, I
would nonetheless exclude them from the petitioned-for unit
based on their lack of a community of interest with the other
unit employees. In this regard, I note that the PHEs have su-
pervision separate from that of the unit employees; do not sub-
stitute for unit employees; earn a rate of pay that is substantially
lower than that of unit employees; do not receive the same
benefits as unit employees; and are subject to different stan-
dards of performance than unit employees.
The Petitioner contends that the facts in this case make it
akin to Davis Memorial Goodwill Industries, supra; and Arkan-
sas Lighthouse for the Blind, 284 NLRB 1214 (1987), where
the Board found the employees at issue to be employees under
Section 2(3) of the Act and did not find that their relationship
with their respective employers was rehabilitative in nature.
However, a review of the facts in those cases shows significant
differences from the facts in the instant case. Thus, in both
Davis and Arkansas Lighthouse, unlike the PHEs in the instant
case, the employees at issue received the same wages and bene-
fits as employees whose unit status was not at issue; had the
same working hours as the unit employees; and received little
or no social services, counseling or training for anything other
than the skills needed to perform their jobs. Further, unlike the
PHEs in the instant case, in Davis, the employees at issue
worked under the same supervision as unit employees and in
Arkansas Lighthouse, the record showed that the employees at
issue had a pattern of long-term employment in their jobs.
Given these factual differences, I find that the Petitioner’s reli-
ance on Davis and Arkansas Lighthouse to be misplaced and
the PHEs will be excluded from the unit.