Lima County Action Commission

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 888 (N.L.R.B. 1991)

888
304 NLRB No. 114
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer has designated its board as a board of trustees.
2 In determining the application of Sec. 2(2) to the employing entities in
those cases, the Board applied principles set out in NLRB v. Natural Gas Util-
ity District of Hawkins County, 402 U.S. 600 (1971).
3 The Employer was incorporated on May 27, 1965, by three individuals
under the Ohio nonprofit corporation laws. The Employer is also a tax-exempt
corporation pursuant to the Internal Revenue Code, 26 U.S.C. § 501(c)(3).
4 Economic Opportunity Act of 1964, 78 Stat. 516, as amended; Community
Services Block Grant Act, 42 U.S.C. §§ 9901, 9904(c) (Aug. 13, 1981).
5 Ohio Revised Code § 122.66 to 122.70 (1984). See also Ohio Revised
Code Title 17, ch. 1724.
6 See Community Services Block Grant Act, 42 U.S.C. § 9904(c)(3).
7 Art. III, sec. 3B of the Employer’s constitution provides that membership
of the Board shall include, inter alia, at least one-third disadvantaged persons
or their representatives and that such representatives shall be selected by
democratic process in accordance with the bylaws.
Art. I, sec. B2 of the Employer’s bylaws provides that the personnel/-mem-
bership committee will assure that the representatives of the clientele sector
have been elected by a democratic election process and that the exact method
of selection of clientele sector representatives be established by the prospective
group or by the personnel/membership committee.
8 According to that testimony, when an organization notifies the board of
trustees that it has selected an individual to be a trustee, the personnel commit-
tee reviews that organization’s procedures to determine whether, in fact, demo-
cratic election procedures were used.
Lima and Allen County Community Action Com-
mission, Inc. and Ohio Association of Public
School Employees, AFSCME/AFL–CIO, Peti-
tioner. Case 8–RC–13584
August 27, 1991
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 14, 1987, the Regional Director for Region
8 issued a Decision and Order in the above-entitled
proceeding in which he declined to assert jurisdiction
over the Employer. In accordance with Section 102.67
of the Board’s Rules and Regulations, the Petitioner
filed a timely request for review of the Regional Direc-
tor’s decision. By telegraphic order dated August 12,
1987, the Board granted the Petitioner’s request for re-
view.
Thereafter on November 16, 1990, the Board, sua
sponte, remanded the case to the Regional Director to
take evidence on the Employer’s tripartite board of di-
rectors1 in order to determine the 2(2) status of the
Employer consistent with the Board’s decisions in
Woodbury County Community Action Agency, 299
NLRB 554 (1990), and Economic Security Corp., 299
NLRB 562 (1990).2 On January 3, 1991, the Regional
Director transferred the hearing officer’s report and the
matter back to the Board for a decision on review.
Both the Employer and the Petitioner filed posthearing
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record, includ-
ing the briefs, and makes the following findings.
The Employer is a private nonprofit Ohio corpora-
tion formed to administer antipoverty programs origi-
nating under the Economic Opportunity Act of 1964.
It serves the city of Lima and the Allen County area
in Ohio.3 The Employer receives funds from Federal,
state, and local governments, and private sector cor-
porations for such programs as Head Start, Jobs/Skills
Bank, Educational Opportunity Center, Energy Out-
reach Program, Home Energy Assistance Program,
Senior Citizen Benefits Program, and a Minority Con-
tractors Assistance Program. The approximately 40
employees in the petitioned-for unit are employed in
the Employer’s Lima and Allen County Head Start
program. Eighty percent of the Head Start program’s
funding comes from the U.S. Department of Health
and Human Services (HHS). The other 20 percent
comes from local sources, primarily in the form of do-
nated services.
The facts on which this case turns are as follows.
The Employer has incorporated into its constitution
and bylaws various Federal4 and state laws5 that re-
quire the Employer to administer its programs through
a tripartite board of trustees. This board of trustees is
to be composed of one-third elected, appointed, or
public officials, or their designated representatives,
one-third representatives of the poor in the area served,
and one-third officials or members of business, indus-
try, labor, religious, welfare, education, or other major
groups and interests in the community.6 Here, although
the Employer’s bylaws allow for a maximum of 51
board members, there are currently 21 trustees, with 7
members from each of the 3 constituent groups. The
public official members, the representatives of the
poor, and the private sector members are selected in
accordance with article III of the Employer’s constitu-
tion and article I of the Employer’s bylaws.7 The
record also shows that the Employer’s executive direc-
tor, Joseph Clark, testified that the representatives of
the low income groups on the Employer’s board of
trustees were selected by a democratic process by their
respective organizations. He indicated he was person-
ally familiar with the method of selection followed by
one group, Helping Hand Credit Union. Finally, Clark
testified that the personnel membership committee of
the board of trustees has taken action on a regular
basis to assure selection by a democratic process.8
In Economic Security Corp., 299 NLRB 562 (1990),
and Woodbury County Community Action Agency, 299
NLRB 554 (1990), the Board considered the status of
private nonprofit community service corporations,
which were established for the purpose of administer-
ing an array of federally subsidized antipoverty pro-
grams at a local level. In each case, the Board held
that the corporation qualified as a ‘‘political subdivi-
sion’’ of a State under Section 2(2) of the Act because
it was governed by a tripartite board of directors, two-
889LIMA COMMUNITY ACTION COMMISSION
9 Sec. 2(2) of the Act provides that the term ‘‘employer’’ shall not include
‘‘any State or political subdivision thereof.’’
10 There is no contention that the applicable laws and the Employer’s by-
laws were not met concerning the selection of the required number of board
of trustees who come from the ranks of elected or appointed public officials
or their designated representatives.
11 Responsibility to public officials or the general electorate does not require
that the directors be subject to removal from office by public officials or the
general electorate in addition to being placed in office by public officials or
the general electorate. See Economic Security, supra at 565.
12 See also GMN Tri-County Community Action Committee, 300 NLRB 963
(1990).
thirds of whom (representing a majority) were ‘‘re-
sponsible to the general electorate.’’9
In its posthearing brief, the Petitioner, while tacitly
acknowledging the existence of a tripartite board of
trustees fitting the description of similar boards in Eco-
nomic Security and Woodbury, contends that the Em-
ployer does not satisfy the Board’s test for a political
subdivision because its ‘‘representatives of the poor’’
on the board are appointed and not selected by demo-
cratic procedures. Its contention rests on its assertion
that Executive Director Clark testified that, except for
the trustee from Helping Hand, all the other represent-
atives of the poor were appointed and that the provi-
sions in the Employer’s constitution and bylaws are in-
sufficient to establish that such representatives were
elected by democratic process.
We find no merit in the Petitioner’s contentions. Al-
though Clark had personal knowledge only of how the
trustee of Helping Hand was selected, he testified that
the personnel/membership committee has regularly ex-
ercised its responsibility to assure that the representa-
tives of the poor were selected by a democratic proc-
ess. The record contains no evidence to the contrary,
i.e., that the representatives of the poor were in fact
not selected by such a process. Clark explained his use
of the term ‘‘appointment’’ as referring to the actual
placement of trustees on the board and not as describ-
ing the method by which such representatives were se-
lected. In these circumstances, we find that Clark’s tes-
timony is consistent with the applicable laws and the
Employer’s bylaws requiring that the representatives of
the poor be selected in accordance with democratic
procedures.10
Therefore, we find that when the one-third rep-
resentatives of the poor are combined with the one-
third of those members who are public officials or
their representatives, the majority of the board, as was
the case in Economic Security and Woodbury, is re-
sponsible by law to public officials or the general elec-
torate.11 Accordingly, we find the Employer here to be
an exempt political subdivision of the State of Ohio,12
and we shall dismiss the petition.
ORDER
The petition is dismissed.
CHAIRMAN STEPHENS, dissenting.
For the reasons set forth in my dissent in Woodbury
County Community Action Agency, supra, I would as-
sert jurisdiction and thus would not dismiss the peti-
tion.