Lighthouse for Blaind of Houston

National Labor Relations Board - Board Decisions

Sep 18, 1979

244 N.L.R.B. 1144 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lighthouse for the Blind of Houston and General
Drivers Warehousemen and Helpers Local Union
No. 968, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Petitioner. Case 23 RC('4709
September 18, 1979
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS JENKINS,
PENELLO, AND TRUESDALE
On November 29, 1978, the Regional Director for
Region 23 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he as-
serted jurisdiction over the Employer and directed
that an election be held in a unit of production and
maintenance employees working in the Employer's
Industrial Division Workshop A. Thereafter, in ac-
cordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer (also herein called Light-
house) filed a timely request for review of the Re-
gional Director's decision on the grounds, inter alia,
that the Regional Director departed from reported
Board precedent and that the Board has improperly
asserted jurisdiction over charitable institutions such
as itself. The Employer also requested that the elec-
tion be stayed pending review. The Petition filed an
opposition to the Employer's request for review.
By telegraphic order, dated January 4, 1979, the
Board granted the Employer's request for review, de-
clined to stay the election, and directed that the bal-
lots be impounded pending this Decision on Review.
Subsequently, the Employer and Petitioner filed
briefs on review and the National Federation of the
Blind filed a brief as amicus curiae.
The Board has considered the record in this case,
including the briefs on review and the amicus curiae
brief,2 with respect to the issues under review, and
makes the following findings:
The Employer contends that the Board should not
assert jurisdiction over its operations because it is a
nonprofit, charitable organization. In this regard, the
I The National Federation of the Blind (herein called Federation) partici-
pated at the heanng as a party in interest. The Employer objected at the
hearing to this participation and apparently objects to the Federation's ami-
cus stature herein because, according to the Employer, the Federation has
aligned itself with the Petitioner. We agree with the Regional Director that
the Hearing Officer's ruling to permit participation by the Federation was
not an abuse of discretion. Accordingly. we have considered the Federation's
amicus brief herein.
2 The Employer filed a letter objecting to the inclusion in the Federation's
amicus brief of certain articles reported in the Wall Street Journal. The
Board recognizes that these articles are not part of the record herein and
does not rely on them in reaching its decision herein.
Employer puts forth two arguments. The Employer
first asserts that the Board incorrectly decided St. Al-
oyvsiUs3 and argues that Ming Quong should be the
applicable standard for deciding whether to assert ju-
risdiction. It next contends that, even if the Board has
statutory jurisdiction, it should decline to assert over
the Employer's employees because it will not effectu-
ate the purposes of the Act. The Employer also ar-
gues that the individuals in its Workshop A are not
employees under Section 2(3) of the Act, and that
these individuals have the same status as that of the
"clients" in Goodvwill.5 wherein the Board dismissed a
representation petition. For these reasons, the Em-
ployer requests that the Board reverse the Regional
Director and dismiss the instant petition.
Petitioner, on the other hand, maintains that the
Employer, with respect to the jurisdiction issue, is en-
gaged in commerce within the meaning of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction herein. Petitioner also claims that
the employees it seeks to represent, i.e.. those persons
working in workshop A, are statutory employees in
the employ of the Employer. The Federation concurs
with Petitioner's argument and urges that the Board
reaffirm its decision in Cincinnati Association jbr the
Blind, 235 NLRB 1448 (1978), which it claims, as
found by the Regional Director, governs the resolu-
tion of this case. Both the Petitioner and the Feder-
ation argue, in urging affirmance of the Regional Di-
rector, that the relationship between the Employer
and its workshop A employees is guided to a great
extent by "business considerations." For the reasons
set forth herein, we agree with the Petitioner and the
Federation and hereby affirm the Regional Director's
Decision and Direction of Election.
1.
The Employer is a nonprofit, charitable corpora-
tion with a principal office and place of business in
Houston, Texas. Its stated purpose is to provide ser-
vices to blind persons in Harris and surrounding
counties in Texas. A 35-member board of directors
presides over the Employer's operations.
The Employer's operations are divided into five de-
partments 6 The social services division provides social
The Rhode Island Catholic Orphan Asylum ak/a SI. Aloysius Home, 224
NLRB 1344 (1976).
' Ming Quong Children's Center. 210 NLRB 899 (1974). In Ming Quong.
the Board reaffirmed its previous decisions not to assert jurisdiction oiver
nonprofit charitable organizations: i.e., religious, educational, and eleemosy-
nary employers. But see Cornell Universirt, 183 NLRB 329 19701. The
Board overruled Ming Quong in the St. Aloysius case.
5 Good'ill Industries of Southern California. 231 NLRB 536 (1977).
6 While the president elect of' the board of directors testified that there
were basically three administrative divisions, it is clear from the remainder of
his testimony and the Employer's 1977 report, introduced into evidence, that
there are five departments at the Lighthouse.
244 NLRB No. 155
1144
LIGHTHOLSE FOR IF BLIND OF tO :S1ION
work and recreation services, both at the Employer's
facility and at the individual's residence, to assist
blind persons. Another department provides volun-
teer services to support the various operations of the
Lighthouse. The Employer also has a department of
library and special services, which makes available
braille, large print, and talking books. Also included
in the Employer's operations is a rehabilitation divi-
sion which offers vocational training and is geared
toward helping visually impaired persons adapt to
their surrounding environment.
The fifth department within the Employer's opera-
tions is the industrial division, which is the one in-
volved herein. This division generates almost 90 per-
cent of the Employer's annual revenues. The
industrial division produces felt-tipped pens. mops,
and commercial scrub brushes: bottles disinfectants
and detergents; and performs subcontracting work.
In 1977 the industrial division manufactured 40.539.-
744 felt-tipped pens, 250,000 mops, and 300.000
brushes. In addition it produced 145,000 gallons of
disinfectant and 30,000 gallons of detergents. Items
such as the mops and brushes manufactured by
Workshop A of the industrial division are sold in
market outlets in Harris County and Houston. Texas.
Pursuant to contracts with the U.S. General Services
Administration (GSA), many of the felt-tipped pens,
as well as the detergent and the disinfectant, are sup-
plied to the Federal government. 7 The industrial divi-
sion also performs subcontracting work including, in-
ter alia, assembling fishing rod holders, performing
grease check assembly work, and filling notebook
binders with inserts for various companies.8
In 1977 the industrial division generated $4,620,000
worth of revenue from sales of the merchandise de-
scribed above. These revenues netted a profit of
$237,000 for the Employer which was utilized in
other areas of its operations. The Employer's total
revenue income in 1977 was $5,195,000, which in-
cluded, in addition to the revenue from the industrial
division, fees from state programs, donations from the
United Fund, grants, contributions, and other dona-
tions. Expenditures by the Employer in 1977 included
$3,631,000 for materials and goods, $752,000 for la-
bor costs and other industrial operations, $644,000 for
rehabilitation, and $123,000 for general administra-
7 The pens were produced for the Federal government pursuant to a con-
tract procured under the Wagner-O'Day Act. 41 US C §§46 48 ( 1970}. Thi,
act established the "President's Committee for Purchase From the Blind and
Other Severely Handicapped." in order that nstitutions such as this Em-
ployer, which can produce items at a fair market price competitivel) in
private industry, will be awarded contracts for manufacture of those items
I Another source of business for the Emploer's Industrial Division is the
distnbution of products manufactured b other Lighthouse operations In
other States, such as Mississippi.
tive expenses. The balance of these totals reveals that
the Emplo\ er netted a profit of S45.0()00.
A.
As noted, the Employer contends that the Board
should not assert jurisdiction because, in its opinion
the Act was not intended to encompass institutions
which provide rehabilitation or clinical-type work-
training programs fr handicapped persons. Essen-
tially, the Emploer a ers that the Act does not pro-
vide for jurisdiction over charitable organizations
such as itself. The Emploxer further urges that the
Board incorrectl'. overruled .\linl Quong. ulpra, in its
decision in Si. .4Ilov.wI.s Home .supra. wherein the
Board reversed its policy of not asserting jurisdiction
over charitable organizations. The Emplo er notes
that the Board, although asserting jurisdiction in SI.
.41lo.vsiu. Horme, did not reverse certain of its decisions.
such as Sheltered IW'rkshops o/ San Diego, Inc., 126
NLRB 119 (1960). and Epi-Hab Evansville I.. 205
NLRB 114 (1973). in which the Board declined to
assert jurisdiction over nonprofit, charitable institu-
tions similar to the Employer herein. The Petitioner
and the federation argue that the Board may properly
assume jurisdiction over this Employer.
It is now beyond dispute that the Board will no
longer distinguish between profit and nonprofit or-
ganizations for jurisdictional purposes. "No longer
will the Board decline jurisdiction over a nonprofit
organization solel3 on the basis of a charitable func-
tion flo a worthi purpose."' We have described at
length the reasons that the Board has decided to as-
sert jurisdiction over charitable organizations. See.
e.g., St. 4lositst Home, supra; (ornell nicerviv, 183
NLRB 329 (1970).
In our opinion, the Supreme Court's recent deci-
sion in V. .. R. B. v. The Catholic Bishop of Chicago, el
aL., 440 U.S. 490 (March 21, 1979), does not require
that the Board decline jurisdiction here. In that case.
a majority of the Supreme Court decided that the Act
did not give the Board jurisdiction over lay teachers
in church-operated schools. In so deciding, the Court
found an "absence of a clear expression of Congress'
intent" and thus decided to "decline to construe the
Act in a manner that could in turn call upon the
Court to resolve difficult and sensitive questions aris-
9 (G;didl lndulrerr.. upra. 231 NLRB at 536: The (hicago Lighhou c for
he Blrnd 225 NLRB 249 (1976). Shehlered W;orkihops o/ San Diego. int.
supra, and itpri-lah Eiansville. supra. are not to the contrars. As explained
more fully in part II ot our opinion It is clear that here. unlike the situation
in Epi-Huh Eialnsidl or Sheltred W'or, shop, ot San Diego. Inc. the Em-
ployer's operallons have a suffiilent impact on commerce and. nsofar i.s
pertinent here. its industrial dl sion sorkshop A is operated on economic
considerations Further. to the extent the decision t decline jurlsdictilon in
those cases rested ,on the ".orth 5 purpose" of the emplorers. rehlance n
such a factor has been l itieted bh subsequent Board decisions
1145
DE-(CISIONS OF NATIONAL LABOR REI.ATIONS BOARD
ing out of the guarantees of the First Amendment
Religion Clauses." (Id., 85 LC at 20,582.) In the in-
stant case there are no facts which suggest that the
assertion of jurisdiction would raise any questions
about or infringe on any first amendment religious
guarantees, an we see no impediment to the assertion
of jurisdiction over the Employer herein.t ° For these
reasons, and as the Employer satisfies our jurisdic-
tional standards for retail enterprises, we find it will
effectuate the purposes of the Act to assert jurisdic-
tion herein."
B.
The Employer also contends that the Board should
decline jurisdiction on discretionary grounds. In this
regard, the Employer maintains that its commercial
activity is "merely ancillary" to its purpose of provid-
ing rehabilitation to handicapped persons and that
the impact of the Employer's operations on interstate
commerce is not sufficient to warrant the Board's as-
sertion ofjurisdiction. We do not agree.
Although the Employer contends that but for the
grants from charities such as the United Way and
moneys received firom the Federal Government for
experimental purposes, it would have lost $244,000 in
1977, the record amply demonstrates the impact and
nature of the Employer's industrial operations with
respect to commerce. Thus, as noted above, the Em-
ployer enters into contracts with the General Services
10 It is also clear that the Supreme Court in (Calholi Bishop, cupra. did not
interpret the legislative history of the Act as precluding the Board's jurisdic-
tion over all nonprofit institutions. Indeed, the Court framed its inquiry
around one question only: Did Congress contemplate that the jurisdiction of
the Board under the Act would include lay teachers in church-operated
schools? By framing the issue in this manner, of necessity the Court confined
itself to an analysis of legislative history to determine whether Congress
specifically intended the jurisdictional reach of the Act to extend into such a
constitutionally delicate area. The Court concluded that the legislative his-
tory of the Act was not sufficiently clear to establish that Congress invested
the Board with Jurisdiction over lay teachers in church-operated schools.
Compare Legislative History of the Coverage of the Nonprofit Hospitals
under the National Labor Relations Act, 1974 (S. Rept. 93 360. 93d Cong.
2d sess. (November 1974)).
However, it is not at all apparent, as our dissenting colleagues suggests.
that in so interpreting the legislative history on this narrow ground the Su-
preme Court intended to limit the Board's approach regarding nonprofit
institutions in general. Thus, Member Penello concedes, and we agree, that
the Catholic Bishop opinion does not "impair our policy of asserting jurisdic-
tion over nonprofit secular schools and colleges." See fn. 27, infra. Moreover,
the majority in Ming Quong, upon which Member Penello primarily relies,
also noted, in explicating Cornell, that the Supreme Court has recognized the
Board's broad jurisdictional standard "as being that 'the Board has never
recognized ... a blanket rule of exclusion over all nonprofit employers. It has
declined jurisdiction on an ad hoc basis over religious. educational and elee-
mosynary employers.'" Ming Quong, 210 NLRB at 900, quoting Office Em-
ployees International Union. Local No. II v. N.L.R B., 353 U.S. 313. 318
(1957).
" The Employer stipulated, and the record reflects. that during 1977 it
sold goods and supplies valued in excess of $50,000. which goods and sup-
plies were shipped directly from its Houston, Texas, facilities to customers at
points located outside the State of Texas. See Siemon's Mailing Service, 122
NLRB 81 (1958).
Administration of the United States Government as
well as other employers in the Houston area to manu-
lacture and distribute products. The Employer's mer-
chandising sales from its industrial division accounted
for approximately 88.5 percent of the total revenues
received by the Employer in 1977. A similar percent-
age was expended toward the operations of the indus-
trial division. The production figures noted above, in-
cluding the manufacture of 40 million pens and
various other items, indicates to us that, contrary to
its assertions, the Employer's substantial production
and distribution of items by its industrial division at-
test to the commercial nature of the Employer's op-
erations. Further, it is clear that the Employer en-
deavors to increase its manufacturing output,
broaden its markets, and essentially operates as
would a private employer. For these reasons we find
no basis for exercising our discretion to decline juris-
diction, but rather conclude that it will effectuate the
purposes of the Act to assert jurisdiction over the Em-
ployer.
11.
The Employer further contends that its handi-
capped workers in workshop A, who are the subject
of the instant petition, are not employees within the
meaning of Section 2(3) of the Act. The Employer
argues that the relationship between the Employer
and its "clients" is one of rehabilitation. Both the Pe-
titioner and the federation assert that the persons in
the petitioned-for unit are statutory employees and
that the Employer's operations are commercial in na-
ture. 12
The industrial division includes workshop A and
workshop B.'3 The approximately 70 persons who are
12 The Employer cites Go-,dwill Industries supra. to support its contentions
However. for the reasons set forth in Cininnati Association for the Blind.
supra, and based on the facts as detailed below. hairman Fanning and
Member Jenkins find the instant case distinguishable from Goodill Indus-
tries, supra. Member Truesdale. who was not on the Board at the time Good-
sill Industries was decided, finds it unnecessary to distinguish that case,
inasmuch as he disagrees with the holding of that case. Member Truesdale
agrees that the persons whom the Petitioner seeks to represent herein are
employees within the meaning of the Act.
'i The Lighthouse was received from the U.S. Department of Labor shel-
tered workshop certificates which permit. but do not require, the Employer
to pay less than the minimum wage to workers in its workshop. It cannot be
determined from the record whether this sheltered workshop certificate ap-
plies to both workshop A and workshop B or merely to workshop B. There
are approximately 100 persons employed in the industrial division which is
compxsed of workshops A and B. Employees workshop B are involved more
substantially in rehabilitation than those in workshop A. Workshop B em-
ployees are paid at least 50 percent of the statutory minimum wage and fall
under the sheltered workshop certificate which the Employer received from
the Department of Labor. Approximately 90 percent of the 70 workshop A
employees. i.e., 62 employees, are legally blind and some are also afflicted
with other handicaps. Maintenance of the machines and equipment used in
workshop A is performed by the 8 to 10 sighted employees working in that
department. As previously noted, the blind persons are involved in the
manufacture of felt-tipped pens, mops and brooms. the bottling of disinfec-
tants and detergents. and the subcontracting work procured by the Employer
from private employers.
1146
L.IGHTHO!SE FOR THE B.IND OF lOtSTON
employed in workshop A are the subject of the peti-
tion herein. Approximately 62 of these individuals are
legally blind.
The record in the instant case shows that the Em-
ployer operates workshop A under normal business
conditions and the workshop A employees are treated
essentially as are regular employees in the private sec-
tor. Employees in workshop A are paid at least the
minimum wage, the range being from $2.89 to $3.40
per hour based on performance. These employees are
paid overtime rates when working more than 8 hours
a day. Moreover, they are eligible to receive merit
raises based on productivity and these merit raises are
subject to rescission if the employee does not demon-
strate that this productivity can be sustained at that
level. Employees in workshop A receive a retirement
program, vacations, and health benefits. They are
covered under workmen's compensation and unem-
ployment compensation. They punch a timeclock.
They have nine paid holidays per year. Social security
deductions are made from their paychecks. While the
Employer maintains that its relationship to a person
in workshop A is one primarily of rehabilitation, the
record shows, for example, that with respect to disci-
pline the Employer resolves these problems using nor-
mal economic and business considerations. Thus,
there is undisputed evidence that employees have
been terminated and suspended for, among other
things, fighting, insubordination, low production, re-
fusal to work, excessive tardiness, and excessive ab-
senteeism. Moreover, although the Employer at-
tempts to place employees in private industry, the
record shows that many of these employees returned
to the industrial division workshop A.'4 We also note
that a large proportion of the employee complement
of workshop A has worked for Employer for at least
10 years and some for as many as 20 years.
These facts lead us to agree with the observation of
one of the Employer's witnesses at the hearing in this
case that the industrial division "operates like any
manufacturing operation." It is clear from these facts
and the facts as recited by the Regional Director that
the Employer's relationship with its workshop A "cli-
ents" is guided "to a great extent by business consid-
erations."'5 We therefore conclude that the employees
in Workshop A of the Employer's industrial division
are employees within the meaning of Section 2(3) of
the Act. Accordingly,.6 we affirm the Regional Direc-
14 Approximately three to four employees are placed In private industry
per year. But approximately half of these subsequently return
It Cincinnati Association for the Blind, 235 NLRB 1448 (19781.
I The parties agreed that the following unit is appropriate if the Board
were to assume junsdiction:
INCLUDED: All production and maintenance employees employed
by the Employer In the industrnal division workshop of its Hlouston.
Texas. facility
tor's Decision and Direction of Election and direct
that the ballots which had been impounded he
opened and counted b the Regional Director and
that thereafter he take such further appropriate ac-
tion as required bh Section 102.69 of' the Board's
Rules and Regulations, Series 8. as amended.
MEMBItR PNi.Oi (, dissenting:
A little more than 3 years ago. in The Rhode s1.irl(
Catholic Orphan 4svluln, a/k/a St. 4Alov'sius Home.
then Chairman Murphy and I dissented from the
Board's decision to reverse precedent and take jurls-
diction over charitable, nonprofit. noncommercial or-
ganizations. A few months ago. in N.L.R.R. v. Ic71
Catholic Bishop of Chicago, e /ll.., the Supreme
Court agreed with our interpretation of certain lcgis-
lative history to the Act which caused us to dissent in
St. Alovsius. Thus. I am surprised that, instead of re-
turning to its pre-St. 4-1 ovvius policy of t'declining j uris-
diction over concerns like the Employer, the Board
today has chosen to continue exercising jurisdiction
contrary to the intention of Congress as discerned h\
the Supreme Court.
In 1947, Congress amended that definition of "em-
ployer" contained in Section 2(2) of the Act to ex-
clude nonprofit hospitals from the statute's coverage.
A broader exemption, which would also hae ex-
cluded from our jurisdiction institutions "organized
and operated exclusively for religious, charitable. sci-
entific. literary, or educational purposes."'" was not
enacted, according to the Conference Report on the
Taft-Hartley Act, because. "only in exceptional cir-
cumstances and in connection with purels commer-
cial activities of such organizations have anx of the
activities of such organizations or of their employees
been considered as affecting commerce so as to bring
them within the scope of the National Labor Rela-
tions Act." 2"
Shortly, thereafter, in The Trustees of Colulmbia
University in the City of New York,21 the Board relied
directly upon this legislative history in refusing to
take jurisdiction over a private university, concluding
that Congress had approved a general Board polic of
not asserting jurisdiction over nonprofit organiza-
tions. Later, in a case deciding that the Board had
jurisdiction over labor unions when acting as employ-
ers, the Supreme Court construed the legislative his-
EX(Ll [)DE) All other employees, including employees In workshop
B. office clerical employees. professional cmplosees, technical emplos-
ees. guards, and supervisors as defined n the Act.
0 224 NLRB 1344 (1976).
99 S.Ct 1313. 85 LC I. 1163 March 21. 1979)
" Sec. 2. Il.R 3020. 80th Cong. Isi ses (1947): 1 I.eg. list 33 34
(LMRA. 19471.
°1' . Rept 510. O8th Cong. Ist ess 32 (194 7X. 1 eg 1tsl 505. 536
.' 97 NlRB 424 19'1)
I 11 47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory concerning nonprofit institutions exactly as had
the Board:2 2
When the Act was amended in 1947 the Con-
gress was aware of the Board's general practice
of excluding nonprofit organizations from the
coverage of the Act when these organizations
were engaged in noncommercial activities. The
House of Representatives attempted to give these
exclusions specific legislative approval. However,
the Senate draft of the bill excluded only hospital
employers from the Act's coverage. The Senate
version became a part of the Act and the lan-
guage is the same as that involved here. The joint
committee report on which the final enactment
was based recited that the activities of nonprofit
employers or their employees had been consid-
ered as coming within the Act only "in excep-
tional circumstances and in connection with
purely commercial activities."
Accordingly, the Court held that labor unions should
not be placed in this category "for the very nature of
the excluded nonprofit employers is inherently different
from that of labor unions and the reason for such
exclusion had no applicability to union activity such
as that found here." (Emphasis supplied.)
In 1970, in Cornell University,2 3 the Board recog-
nized that, in the intervening period since the Colum-
bia University decision, private, nonprofit educational
institutions as a class had come to "have not only a
substantial, but massive, impact on interstate com-
merce." We therefore found that changing conditions
had brought private, nonprofit schools within the "ex-
ceptional circumstances" contemplated by Congress
as justifying Board jurisdiction over nonprofit em-
ployers.2 4 However, in Ming Quong Children's Cen-
ter,25 the Board reaffirmed that it would not depart
from its "congressionally approved general practice
of declining jurisdiction over nonprofit charitable or-
ganizations without having had the special kind of
justification relied upon in Cornell."
Nonetheless, 2 years later, the Board repudiated
Ming Quong and St. Aloysius. The majority suggested
that the 1947 legislative history regarding nonprofit
institutions did not mean that we should generally
refuse jurisdiction over such organizations, although
the Board had always so interpreted the legislative
22 Offce Employees Inernational Union, Local No. II v. N LR.B 353 U.S.
313, 318-319 (1957) (footnotes omitted).
2 183 NLRB 329, 332 (1970).
24 Subsequently, the Board erected a jurisdictional standard of SI million
in annual gross income for private colleges and universities. National Labor
Relations Board Rules and Regulations, Series 8,. as amended, Sec. 103.1.
The same standard was later applied to other types of private schools. Shat-
tuck School, 189 NLRB 886 (1971); The Windsor School, Inc., 200 NLRB
991 (1972); The Judson School. 209 NLRB 677 (1974).
"2 210 NLRB 899, 900-901 (1974).
history in the past. 26 In any event, they concluded
that the 1974 deletion of the nonprofit hospital ex-
emption from the Act removed any basis for not as-
suming jurisdiction over other nonprofit concerns. In
our dissent, then Chairman Murphy and I, for rea-
sons summarized again in this opinion, adhered to the
traditional Board construction of the relevant portion
of the Conference Report on the Taft-Hartly Act.
Further, we found nothing in the 1974 amendments
to the Act, or in its legislative history, which dis-
turbed congressional intent regarding Board jurisdic-
tion in areas other than nonprofit hospitals.
In Catholic Bishop, involving secondary parochial
schools in the Roman Catholic dioceses of Chicago,
Illinois, and Fort Wayne-South Bend, Indiana, the
Court held that it was unnecessary to decide whether
the Board may constitutionally assert jurisdiction
over such schools, because the legislative history of
the statute did not reveal that Congress intended us to
have jurisdiction over them.27 Citing the 1947 legisla-
tive history pertaining to jurisdiction over nonprofit
concerns, the Court stated:2 8 "There was some discus-
sion of the scope of the Board's jurisdiction but the
consensus was that nonprofit institutions in general did
not fall within the Board's jurisdiction because they
did not affect commerce." (Emphasis supplied.) I can-
not conceive of a more blunt declaration from the
High Court that Congress did not intend that the
Board exercise jurisdiction over nonprofit organiza-
tions as a rule, as the Board itself had held until St.
Aloysius. The Court also examined the 1974 amend-
ments to the statute, and the legislative history, and
uncovered nothing to alter this conclusion.
Now that the Supreme Court has informed us in
plain language-for the second time-that nonprofit,
charitable institutions are not generally within our ju-
risdiction, my colleagues should foreclose needless fu-
ture litigation by announcing that the Board will no
longer take jurisdiction over such organizations ex-
cept where unusual circumstances prevail.
26 The Board indicated that the remarks concerning nonprofit institutions
in the Conference Report may merely have reflected the inability of propo-
nents of a statutory exemption for such organizations to enact one. (224
NLRB at 1345, fn. 5. and accompanying text.)
21 I joined my colleagues in taking jurisdiction over the parochial schools
involved in Catholic Bishop. I did so because I viewed them essentially as
"religiously associated" private educational institutions, which fell within the
jurisdictional standard for nonprofit schools established after Cornell. See
Shattuck School. The Court. however, emphasized primarily the religious
character of the schools, and thus concluded that the Board lacked jurisdic-
tion. But I find nothing in Catholic Bishop to impair our policy of asserting
jurisdiction over nonprofit secular schools and colleges. In fact, the Court
took note of our decisions in Cornell University, Shattuck School, The Wind-
sor School, Inc., and The Judson School, without any expression of disap-
proval. The Court decided only that Cornell and its progeny did not apply to
parochial schools, because they involve "substantial religious activity and
purpose." (85 LC at 20,582, citing Lemon v. Kurtzman, 403 U.S. 602, 617
(1971).)
' 85 LC at 20,583.
1148