Koba Associates, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1988

289 N.L.R.B. 390 (N.L.R.B. 1988)

390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Koba Associates , Inc. and Office & Professional
Employees International Union, Local 2, AFL-
CIO, Petitioner. Case 5-RC-12553
June 28, 1988
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 25, 1985, the Regional Director
issued a Decision and Direction of Election in
which he found that, under the principles set forth
in National Transportation Service, 240 NLRB 565
(1979), assertion of jurisdiction was warranted. On
December 18, 1985, the Board granted the Em-
ployer's request for review of that decision. On
December 20, 1985, an election was conducted in
the unit found appropriate by the Regional Direc-
tor, and the ballots were impounded. On June 30,
1986, the Board issued an order remanding the case
for further consideration in light of its decisions in
Res-Care, Inc., 280 NLRB 670 (1986), and Long
Stretch Youth Home, 280 NLRB 678 (1986), includ-
ing, if necessary, reopening of the record. Subse-
quently, the Regional Director ordered that the
record be reopened and, on November 5, 1986, a
further hearing was held. On January 13, 1987, the
Regional Director issued a Decision and Order to
Open and Count Impounded Ballots in which he
concluded that assertion of jurisdiction over the
Employer was appropriate.
Thereafter, in accordance with Section 102.67 of
the Board's Rules and Regulations, the Employer
filed a timely request for review of the Regional
Director's decision, in which the Employer con-
tended that the Board should decline to assert juris-
diction. By unpublished order dated April 8, 1987,
the Board granted the request for review. The peti-
tioner filed a brief on review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We have considered the entire record in this
case, and conclude, in agreement with the Regional
Director, that it is appropriate to assert jurisdiction
herein.
1.
The Employer provides management consulting
services to governmental agencies . In the instant
case, the Employer, under a contract with the
Drug Enforcement Administration (DEA),1 pro-
i The contract is between the DEA and the Small Business Adminis-
tration (SBA), and the Employer is the subcontractor
vides personnel for functions that are necessary to
maintain the DEA's Narcotics and Dangerous
Drugs Information System, functions which in-
clude document review and data analysis. The Peti-
tioner seeks to represent a unit of the Employer's
full-time and regular part-time employees employed
at the DEA headquarters.
The Employer, as a contractor providing serv-
ices to the Federal Government, is subject to the
terms of the Service Contract Act of 1965, as
amended , 41 U.S.C. § 351; as such, the wages and
fringe benefits it provides its employees must equal
at a minimum the standard established in a wage
determination set by the Department of Labor
(DOL). The wage determination sets forth the min-
imum compensation rates prevailing in the locality
for wages and benefits. See 41 U.S.C. § 351 (a)(1),
(2); Dynaelectron Corp., 286 NLRB 302 (1987). In
the instant case, the wage determination for 1985
set a minimum hourly wage for each of five classi-
fications that ranged from $7.46 per hour for a
coder/trainee to $12.30 per hour for a team super-
visor. All service employees under the contract
were to receive health and welfare benefits valued
at 32 cents per hour, $12.80 per week, or $55.46
per month, a well as 2 weeks' vacation after a year
of service and nine paid holidays each year. The
dollar amounts required for wages and for health
and welfare benefits in the wage determination are
only minimum standards.
The contract is a labor-hours contract with fixed
billing rates; the Employer bills the agency for
each hour worked, at a rate up to the ceiling speci-
fied in the contract. The contract specifies the
number and types of personnel required, the maxi-
mum number of hours required for each labor cate-
gory on each shift, and the billing rate for each
classification.2 The billing rate includes overhead,
general and administrative costs (G&A), and fringe
benefits. The contract includes a total direct cost
for each fiscal year, separated into direct labor
costs for each job classification, and lists a maxi-
mum sum for all other direct costs, including, for
example, such items as parking, local travel, and
postage. The Employer bills the DEA both for
direct costs and for G&A, overhead, and fringe
benefits, at the billing rate. Thus, should an em-
ployee work 3 hours at a rate of $10 an hour, the
Employer would bill the agency for $30, plus the
percentage of the billing rate allocated for that par-
ticular classification. The Employer does not re-
2 The DEA has permitted the Employer to transfer funds allocated for
two specific job classifications between the two classifications , so long as
the combined hours for the two classifications equal the total required
under the contract and the cost does not exceed the total dollar amount
for both classifications
289 NLRB No. 33
KOBA ASSOCIATES
ceive the projected total contract price should
there be a slowdown in production; the DEA is
billed only for the hours worked.
The contract is for a 1-year period, renewable
for a total period not to exceed 3 years. A price
adjustment clause is included that provides that if
the DOL issues a new wage determination during
the term of the contract, the parties may negotiate
an amendment to reflect that change at the next re-
newal period. If, however, nonlabor costs increase,
the DEA will only pay the established rate.
Before the contract was awarded , the DEA or
the Defense Contract Audit Agency (DCAA) au-
dited the Employer to determine whether it had
the capability to perform the contract. The DCAA
examined the Employer 's proposal for wages and
estimated indirect cost items, from photoduplica-
tion costs to officers' salaries. If the DCAA dis-
agreed with the Employer regarding the projected
rate for a particular item , the DCAA would pro-
pose a rate it considered more reasonable, but
under which the Employer would be able to oper-
ate without a loss.
The Employer must maintain accounting proce-
dures that show all cost incurred, and the DEA
may examine the Employer's records for accuracy
of the cost and pricing data. The DEA may re-
quest an audit of invoices before final payment, and
payments previously made are subject to reduction
for overpayment or to increase for underpayment.
Certain Federal acquisition regulations (FARs)
are incorporated in the contract that permit the
DEA to terminate the contract in whole or in part
if it is in the interest of the Government. These
regulations also permit termination if the contrac-
tor fails to perform services within the times speci-
fied, fails to make progress on the contract, or oth-
erwise fails to perform contractual provisions.
One of the Employer's vice presidents, Ilene
Baylinson, testified that because the billing rate is
fixed, the Employer has no flexibility to change
wage and benefit rates once the contract is negoti-
ated with the DEA, but she was unable to point to
any section of the contract that bars increases or
changes in wages and benefits. She also stated that,
in practice, the FARs prevent the Employer from
changing wages and benefits because such changes
would be considered defective cost pricing; howev-
er, she conceded that the regulations do not ex-
pressly prohibit increases. Baylinson also acknowl-
edged that certain employees were paid more than
the minimums required by the wage determination.
Furthermore, another vice president, Michael
Bonner, testified that the Employer is free to
award wages and benefits that exceed the minimum
specified in the wage determination.
391
To receive payment under the contract, the Em-
ployer submits invoices twice a month to the DEA
to show expenditures. After the Employer substan-
tiates the hours worked, the DEA reimburses the
Employer for all costs incurred within certain line
items . If the Employer bills the DEA for nonap-
proved items or for amounts that exceed line items,
the DEA may challenge the sum. Thus, if the Em-
ployer were customarily to submit an invoice for
100 hours for a particular classification and then
submit an invoice for 500 hours, the DEA might
reject it on the basis that it would be unnecessary
to use that many employees in one category.
During negotiations for a final contract, the Em-
ployer complied with a DEA request to standard-
ize wages. Initially, the Employer, which was then
acting under a preliminary letter contract, set
wages by awarding individual employees a certain
percentage above a standard wage rate, which
could result in increases varying between 5 and
17.5 percent. As a result, employees within the
same classification received widely different wage
rates. The Employer also complied with a DEA
request that it set the hours for eligibility for a
night-shift differential to correspond with those
hours set by the DEA. Further, the Employer
changed its basis for awarding increases on request
of the DEA. The Employer at first based merit in-
creases on productivity, time, and attendance, but
it agreed to base awards solely on production so
that its employees would not receive more awards
than would the employees of the DEA.
In support of the Employer's allegation that its
ability to bargain is limited, Vice President Bonner
testified that the contract specifies that the employ-
er may expend $3000 each quarter for merit in-
creases, although to support this statement, he
pointed to contract language prohibiting total other
direct costs from exceeding that amount. Moreover
he also testified that there is nothing in the contract
to prevent the Employer from expending more
than the amount specified.
The cost of the components of the fringe benefit
package are incorporated into the fixed billing rate.
Baylinson testified that the Employer is unable to
make financial changes in the fringe benefits pack-
age because the DEA would find it to be defective
cost pricing, but again, she was unable to cite to
particular regulations that prohibit such changes.
She also testified that the Employer could in effect
award greater benefits out of corporate profits, but
she stated that its profit margin was too slim to
support increases and, moreover, that the agency
might conclude after a capabilities audit that the
Employer was unable to perform the contract.
Bonner, however, testified that the Employer may,
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
within the limits prescribed by the contract, modify
the types of fringe benefits it provides employees.
That is, beyond meeting at a minimum the wage
determination and staying within the billing rate
agreed on with the DEA, the Employer may
change benefits, including changing health plans.
The contract does not prohibit the Employer from
increasing benefits or bar changing the components
of the benefits package;3 the Employer simply
cannot reduce the value of the benefits below that
specified in the wage determination.
The contract requires that the Employer main-
tain two daily shifts and specifies that the size of
the work force be equivalent to a certain number
of full-time employees, although the Employer may
use part-time employees to achieve the manning
level. The contract provides for an effective work
force of a certain number of person-weeks, with a
10-percent variance permitted over a 3-month
period. The contract also specifies the time an em-
ployee must spend in a particular classification
before advancement. Any changes in promotion
criteria must be approved by the DEA before in-
corporation in the contract.
The Employer interviews and hires applicants;
although the DEA interviews applicants, its focus
is on security matters. The Employer's employees
work in a secure facility alongside the DEA's em-
ployees, and thus need a security clearance; the
Employer's employees wear identification badges
issued by DEA security. In the past, the Employer
has terminated an employee on notification by the
DEA that he had breached security.
The Employer determines who is eligible for
merit increases. The Employer also assigns work
and schedules vacations, and selects employees to
work overtime, subject only to the contractual re-
striction that such employees must have maintained
a certain production rate. The Employer evaluates
employees, and it weighs employees' error rates in
evaluating performance.
Both the DEA and the Employer maintain pro-
cedures for quality control. If the DEA uncovers
employee errors in the course of monitoring per-
formance, the employer's supervisors decide
whether an individual employee is chargeable with
the error. The Employer has removed an employee
from quality control functions who was not per-
8 Although the Employer asserted that it needed DEA approval to im-
plement a change in the vesting schedule for its pension plan, the pension
plan itself provides that the Employer has the right to amend , modify, or
discontinue the plan at any time . The record does not show that DEA's
authority to approve or disapprove amendments to the pension plan ex-
tends beyond any effect on the billing rate; the Employer contributes a
percentage of each employee's salary into the pension fund and that sum
is included in the fringe benefit total. In any event , the modification pro-
posed would have no financial impact on the Employer's contribution
rate and no effect on the billing rate.
forming properly after the DEA warned that
unless the Employer did so, the agency would seek
to modify the contract to eliminate the position.
When employees perform functions in classifica-
tions not covered by a wage determination, the
Service Contract Act's accompanying regulations
provide a conforming procedure for establishing
pay. See 29 CFR § 4.6(b)(2)(i). For those job clas-
sifications not included in the wage determination,
wage rates are established by interested parties or
employer-represented groups, and the Employer
must report to the exempt entity on what wages
and benefits those employees will be paid. Com-
pensation must bear a rational relationship to that
listed in the contract's wage determination. See 29
CFR § 4.6(b)(2)(ii). Thus any change, including
adding a new classification, must be done by agree-
ment of the Employer, the employees, and the
DEA. To meet this requirement, an Employee Ad-
visory Committee (EAC) was established to meet
four times each year; it consists of six or seven
elected employee representatives , as well as a
project director, team supervisor, and vice presi-
dent. As an example of the EAC's input, in the past
the EAC has petitioned the DOL for a reclassifica-
tion of wage rates, and in May 1983, the DOL
issued a reclassification with wage increases and
backpay. The EAC has also dealt with such mat-
ters as problems with work supplies or the general
work environment, and has considered the use of
error rates in evaluations, On the other hand, there
was testimony that employees did not participate in
establishing the wage determination issued for the
1985 fiscal contract year, and that the EAC did not
meet between the dates of the two hearings, No-
vember 1985 and November 1986.
II.
In Res-Care, the Board clarified its test for
whether an employer shares a governmental enti-
ty's exemption from the Act. The test evolved
from that set forth in National Transportation Serv-
ice, 240 NLRB 565 (1979). Res-Care explained that
whether the Board asserts jurisdiction is based on
the extent of control retained by the employer over
essential terms and conditions of employment and
on the degree of control exercised by the exempt
entity over the employer's labor relations policies.
Thus, jurisdiction is asserted when the employer
has the "final say on the entire package of employ-
ee compensation, i.e., wages and fringe benefits."
Id. at 674.
The exempt entity in Res-Care placed direct
limits on employee compensation and, as a conse-
quence, the employer did not have the ability to
bargain over economic terms and conditions of em-
KOBA ASSOCIATES
ployment. The DOL approved the initial wages,
wage ranges, and benefits that were included in the
proposed operating budget. Once the employer's
budget was approved by the exempt entity, the
contract price was based on the budget, and the
employer effectively was prevented from increas-
ing wages and benefits. Changes in approved
amounts needed DOL clearance, and expenditures
over budget were disallowed. The contract placed
a ceiling on wages; employees could not receive
more than that prevailing for other employees in
the locality, wages were held to a top level of less
than 10 percent over the wages that employees re-
ceived at their former employment, and wage in-
creases were limited to less than 10 percent. Per-
sonnel policies were also subject to DOL approval.
By contrast, the Board asserted jurisdiction in
Long Stretch because the employer was able to
engage in meaningful bargaining; although there
was a ceiling on the employer's total budget, there
were no specific limits on employee compensation.
Id. at 682 fn. 14. The exempt entity set minimum
standards and qualifications for employees and sug-
gested minimum and maximum salary ranges. The
employer, however, was free to pay more or less
than what the exempt entity suggested. The em-
ployer also submitted its proposed operating
budget to the exempt entity, but the proposal was
not the basis for the contract; instead it often
varied from the actual budget.
The Employer here is less restricted than the
employer in Res-Care, first, because there are no
limits on the wages or compensation that the Em-
ployer proposes in submitting its operating budget.
Beyond the wage determination' s imposed mini-
mum standards, the Employer may set forth its
own compensation levels in the proposed budget.
Unlike Res-Care, the DEA does not establish maxi-
mum levels at the outset; no ceiling was placed on
wages or benefits in establishing contract terms.
Bonner stated that the Employer could exceed the
minimum specified in the wage determination, and
wages under the contract have exceeded the wage
determination. Res-Care is further distinguishable
because here the Employer is not bound to keep
wages under 110 percent of prior wages. Further-
more, the Service Contract Act provides for substi-
tution of collectively bargained wages and benefits
for the prevailing compensation rates set forth in
wage determinations. Dynaelectron, supra at 303,
citing 41 U.S.C. § 351(a)(1) and (2).4 In Dynaelec-
4 If the wages and benefits agreed on are shown, however, to be sub-
stantially at variance with those prevailing in the locality, or if reached
after less than arm's-length negotiations , the DOL will not adopt those in
setting a wage determination 41 U S C § 353(c); see Dynaelectron, supra
at 304
393
tron, the Board held that the terms of the Service
Contract Act alone do not bar meaningful bargain-
ing. Thus, because under the Service Contract Act,
the rates in a collective-bargaining agreement
would be incorporated as the wage determination
in the contract, in the absence of other contractual
limits , the Employer, through the process of bar-
gaining , may set the compensation levels in the ini-
tial contract.
Once the contract is awarded, the Employer's
budget does place some limits on changes in com-
pensation. The limits are not such, however, that
prevent bargaining over terms and conditions of
employment. As in Res-Care, the budget becomes
the basis for the contract and, moreover, the Em-
ployer may not bill the DEA for anything the
DCAA has disallowed. Postaward, if the agency
believes the Employer changed the components of
the pricing structure, it may audit the Employer to
determine whether it has the continued financial
capability to perform the contract. If the Employer
pays employees significantly more or less than
what was recommended initially, the agency may
conduct another audit with recommendations for
wages and benefits that the Employer might pay
under future contracts.
Payment methods here display more similarities
to those in Res-Care than to those in Long Stretch.
In Res-Care, to receive contract funds, the employ-
er periodically submitted vouchers to the exempt
entity, and the agency, which made payment
monthly, had the discretion to reduce the contract
payment by the amount of any costs it disallowed.
The payment method under the contract in Long
Stretch differed markedly. State funding was not
tied to employee compensation and, instead, the
employer received funds through the exempt entity
from the state legislature based on reimbursement
per resident. Here, the Employer submits specific
invoices to the DEA, which reimburses it on
review of the vouchers. The testimony indicates
that if an invoice for a job classification shows a
great increase, the DEA might question the basis
for it and may refuse payment. The record does
not show that the DEA would disallow payments
for increased labor costs, unless, as with other
items, they would exceed the contract price or un-
dermine the Employer's ability to perform.
The record shows, however, that the Employer
retains control over several crucial elements. The
Employer's contract established only minimum
rates, and the Employer's wage rates for its em-
ployees have exceeded those set by the DOL .5 The
5 Old Dominion Security, 289 NLRB 81 (1988), a somewhat similar case
to that presented here, also involved an employer that was subject to the
Continued
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DOL's wage determination only sets a minimum
dollar amount for all benefits, and the Employer is
free to negotiate a higher fringe benefit dollar
value with the DEA. In PHP Healthcare Corp., 285
NLRB 182 (1987), a case in which the Board did
not assert jurisdiction, the employer was more con-
stricted by a contract that set maximum as well as
minimum wage limits and established percentages
for increases. As we noted in Dynaelectron, supra at
304, the Service Contract Act does not require the
Employer to agree to provide higher wage rates or
benefit levels than those prevailing in the locality.
The Employer asserted that the DEA's control
over employee compensation is shown by restric-
tions concerning merit increases. However, the tes-
timony regarding merit increases does not show
that the Employer cannot determine what amounts,
if any, to award to its employees. The record indi-
cates that included in the line item budget for total
"other direct costs" is a specified sum for merit in-
creases . A reading of the contract does not show
that the sum for "other direct costs" is broken
down to separate amounts, including a sum for
merit increases. Apparently, nothing in the contract
limits the Employer's ability to award increases as
it believes warranted.
If, during the term of the contract, the Employer
were to enter into a collective-bargaining agree-
ment with the Petitioner, because of the operation
of the Service Contract Act, as stated above, the
collectively bargained rates would become the new
wage determination at the next renewal period.6
Any wage or benefits increase resulting from bar-
gaining would be incorporated in the contract.
Thus, unlike Res-Care, should the Employer and
the Petitioner negotiate a collective-bargaining
agreement that increases compensation levels, such
Service Contract Act There, the Board asserted jurisdiction over the
employer, observing , inter alia, that although the levels of employee com-
pensation did not exceed the wage determination 's minimum standards,
the employer was not limited to those levels
6 The Petitioner points to the existence of the EAC as evidence of the
Employer's ability to bargain, and the Employer , by contrast, contends
that the EAC is currently inactive Neither position affects the outcome
of this case DOL regulations contemplate employee involvement in set-
ting wages . Any contractor who wishes to employ a class of employees
not included in the contract 's wage determination must first comply with
a conformance procedure that requires the employer to submit a proposal
regarding wages and benefits for review The employer must indicate
whether the employees ' authorized representative agrees with the wage
proposal or , in the absence of such an authorized representative, whether
the employees themselves approve the proposal 29 CFR § 4 6(b)(2)(u)
Thus, if circumstances warrant , the EAC would be required to meet
In Res-Care, the Board stated that whether an employer and a labor
organization have entered into a collective-bargaining agreement is not
determinative of its jurisdictional decision Id. at 674 fn 22 There, unlike
the present case, the exempt entity had approval authority over all the
terms in the collective-bargaining agreement and thereby controlled all
economic terms and conditions of employment Here, however, the nego-
tiated compensation levels automatically become the wage determination
without agency participation See 41 U S C § 351(a), Dynaelectron, supra
at 303-304
increases would not be disallowed, although under
the contract the DEA still may ensure that the
contract is performed and that the Employer is ca-
pable of performing it.7 Hence, the Employer's
contract with the DEA is less restrictive than that
in Res-Care.
Based on the above, we find that the Employer
does have the ability to engage in meaningful bar-
gaining with a labor organization. The Employer
has greater ability than in Res-Care to set initial
compensation rates and, under the Service Con-
tract Act, collectively bargained wages become the
new wage determination. There are some factual
similarities between the instant case and Res-Care;
the Employer's submitted budget is the basis for
the contract price, and the Employer submits
vouchers periodically to receive payment. Unlike
Res-Care, however, here there are no restrictions
imposed by the DEA on the maximum wages and
benefits, and the Employer determines the compen-
sation its individual employees will receive, subject
only to the minimums specified in the contract.
Also unlike Res-Care, the contract does not specify
employees' wage ranges. There is no evidence that
the exempt entity possesses authority to approve or
disapprove any changes in wages , aside from ensur-
ing that the Employer continues to be capable fi-
nancially to perform the contract. With regard to
benefits, the Employer is limited only by the mini-
mum standard, beyond that specification, the Em-
ployer is free to design a benefits package and to
bargain over it with a labor organization." The
Employer, as in Long Stretch, does not operate
under any specific limits on employee compensa-
tion expenditures beyond adhering to the minimum
standards required under the Service Contract Act.
With respect to the exempt entity's involvement
in day-to-day operations and labor relations, the
DEA maintains certain security measures that re-
quire some input in hiring, and security breaches
found by the DEA result in discipline. The use of a
DEA facility and equipment requires that the DEA
establish the hours of work and the number of em-
7 Although the Employer has complied with DEA requests regarding
certain factors that affect compensation , such as overtime differential eli-
gibility and standards for merit increases, these requests for some uni-
formity on matters that also affect DEA employees at the same site do
not limit the Employer 's ability to engage in meaningful bargaining over
its employees ' essential economic terms and conditions of employment
8 Although Baylinson testified that the Employer was not free to alter
components of the benefit package, the record as a whole does not sup-
port this conclusory statement , the contract merely provides what the
Employer must, at a minimum , expend per employee on an hourly,
weekly, or monthly basis . Baylinson, on being asked what contract provi-
sion prevented the Employer from altering the fringe benefits package,
stated that regulations required that the cost and pricing data must be
certified as accurate , but she did not point to any contract provision or
regulation that prevented the Employer from allocating fringe benefits as
it wishes.
KOBA ASSOCIATES 395
ployees per shift , and the DEA approves the quali-
fications for positions . Citing these facts, the Em-
ployer contended that it lacked control in such
matters as hiring, setting staffing levels , holidays,
quality control , hours of work and overtime, pro-
motions , demotions , and terminations , and work
environment , and that therefore our assertion of ju-
risdiction is not appropriate . We do not agree.
Because of the type of work contracted for, the
DEA sets the number and type of personnel, and
because the DEA performs a security -related func-
tion , it controls certain aspects of the work envi-
ronment . The Employer, however , remains respon-
sible for hiring, evaluating , and directing employ-
ees, not the DEA, and the decision to discharge
rests with the Employer . In Long Stretch , id. at 682
and fn . 15, the fact that the agency set minimum
qualifications and could veto hires that did not
meet these standards did not defeat jurisdiction,
and in Res-Care, id . at 674 fn . 22, the Board specifi-
cally disavowed reliance on operational controls in
declining to assert jurisdiction . Here, the DEA's in-
volvement in day-to-day operations and personnel
matters to ensure contract compliance and security
does not impinge on the Employer 's ability to bar-
gain. The Employer's employees are subject to the
DEA's regulations, and the DEA may suggest dis-
cipline, but the Employer remains responsible for
personnel decisions . See Dynaelectron , supra at 305;
Old Dominion Security , supra at 82 . Operational
controls may permit monitoring of contract com-
pliance , but they do not limit the Employer 's abili-
ty to bargain . Long Stretch , id. at 682 fn . 15; see
Res-Care, id . at 674 fn. 22 ; Rustman Bus Co., 282
NLRB 152 (1986); see also Champlain Security
Services, 243 NLRB 755 (1979); Atlas Guard Service,
237 NLRB 1067 (1978).
In sum , we fmd that the Employer retains suffi-
cient control over its employees ' terms and condi-
tions of employment to engage in meaningful col-
lective bargaining , and that neither the DEA nor
the DOL exercises any controls that affect the Em-
ployer's ultimate discretion over wage and benefit
levels. ARA Services, 283 NLRB 602, 604 ( 1987):
Long Stretch , id. at 682 . We therefore hold that it
will effectuate the purposes and policies of the Act
to asset jurisdiction over the Employer . According-
ly, the Regional Director' s conclusion is affirmed,
and we shall remand the proceeding to the Region-
al Director for further appropriate action.
ORDER
The Regional Director 's decision is affirmed and
the case is remanded for further appropriate action.