Loma Prieta Regional Center

National Labor Relations Board - Board Decisions

Apr 23, 1979

241 N.L.R.B. 1071 (N.L.R.B. 1979)

LOMA PRIETA REGIONAL CENTER
Loma Prieta Regional Center, Inc. and Social Ser-
vices Union Local 535, SEIU, AFL-CIO, Peti-
tioner. Case 32-RC-479
April 23, 1979
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Michael H. Leong on
October 27 and November 13 and 20, 1978. Follow-
ing the hearing and pursuant to Section 102.67 of the
National Labor Relations Board's Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, this case was transferred to the National
Labor Relations Board for decision. Thereafter, the
Petitioner and the Employer filed briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding the
Board finds:
I. The Employer is a nonprofit California corpora-
tion which provides aid, diagnosis, and/or treatment
to the developmentally disabled at locations in San
Jose, Watsonville, Santa Cruz, Gilroy, Campbell, and
Monterey, California. The Petitioner seeks to repre-
sent a unit including all full-time and regular part-
time office clerical employees employed by the Em-
ployer at all its locations.
The Employer contends that the Board should de-
cline jurisdiction because the State of California con-
trols the Employer's labor relations policies and the
centers are intimately connected with the State and
should therefore share the State's exemption under
Section 2(2) of the Act.
As we stated in National Transportation Servnice,
Inc.,2 we will no longer utilize the so-called intimate
connection standard for ascertaining whether the
Board's assertion of jurisdiction over an employer
with close ties to an exempt entity is warranted. In-
stead, we said that in future cases involving a deter-
mination of whether the Board should assert jurisdic-
tion in such situations we shall determine whether the
employer itself meets the definition of "employer" in
The Petitioner filed two motions to submit late exhibits. hey are both
hereby granted.
2240 NLRB 565 (1979) (Members Penello and Murphy dissenting).
Section 2(2) of the Act and, if so, determine whether
the employer has sufficient control over the employ-
ment conditions of its employees to enable it to bar-
gain with a labor organization as their representative.
Applying these principles to this case, we find the
following: Loma Prieta Regional Center, Inc., is one
of 21 regional centers located throughout the State of
California which were established in accordance with
the provisions of the Lanterman Developmental Dis-
abilities Services Act' to provide services to the devel-
opmentally disabled. It is established as an incorpo-
rated body with an independent board of directors.
Each year Loma Prieta Regional Center enters into
a contract with the State of California, through the
State Department of Developmental Services,
whereby the State agrees to fund the Regional Center
in exchange for the Center's agreement to provide
certain services as set forth in the statute. With the
exception of the name of the center and the budgeted
dollar amounts, the identical contract is entered into
between the State and each of the 21 centers. Each
center receives all of its funding from the State of
California.
The contract contains the approved number of staff
positions, together with a maximum and minimum
salary range. Any spending in excess of the approved
budget for new staff positions must be approved by
the State. The State has set a salary range for all staff
positions, and all personnel must meet state standards
for training and experience.
Although the State exercises some control through
the budgetary process and its minimum qualification
requirements, the Employer is virtually autonomous
with respect to its hiring, firing, and disciplining of
employees. It does its own advertising, screening, and
hiring of applicants for the vacant positions. As long
as there is a vacancy in an existing class, the Em-
ployer needs no approval from the State to fill that
position. The Employer may discharge a worker, con-
forming only with its own internal personnel policies,
and need not inform nor receive approval from the
State to do so. Similarly, the Employer has total con-
trol over the determination and administration of any
disciplinary action. If it wishes to hire a temporary
employee to fill a position vacated by an employer on
unpaid leave of absence, the Employer may do so
without having to obtain approval from the state
agency.
Prior to the passage of the Lanterman Act and its
contract with the State, a bargaining unit of certain
social work and medical professional staff represented
by Petitioner herein was recognized by the Employer
and had continued a bargaining relationship. A col-
3 California Welfare and Institutions Code, §4500(X) et seq.
241 NLRB No. 165
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective-bargaining agreement was entered into on
July 26, 1978.
The Employer has issued its own personnel policies
which apply to all employees except insofar as any
sections have been superseded by a provision of the
collective-bargaining agreement. Matters addressed
by the manual are procedures for transfers; layoff and
recall; discipline, discharge, and termination, includ-
ing an internal right to appeal; and a grievance proce-
dure. None of these procedures is set or required by
the State, and the employees have no right of appeal
before any state personnel board or agency. There is
no requirement imposed on the Regional Center by
the State to report any grievances which may occur at
the Center except insofar as it seeks approval for an
expenditure of legal fees incurred in defending or pro-
cessing a grievance.
The State of California has recommended the es-
tablishment of a 40-hour workweek and has also es-
tablished guidelines regarding vacations, holidays,
and sick leave. The Employer currently has a 37-1/2-
hour workweek and one more holiday than recom-
mended by the State. These gains were achieved
through collective bargaining.
On the basis of all foregoing, we conclude that the
immediate formulation of labor relations policies and
procedures is a function performed by the Employer's
board of directors. The control by and accountability
to the State is only fiscal. Although these fiscal re-
straints are necessarily imposed, the State has recog-
nized each Regional Center's autonomy in determin-
ing its employer-employee relations policies. The
Employer is exclusively responsible for disciplining
and discharging its employees and retains complete
authority with regard to hiring into the alloted job
slots. With respect to other working conditions, the
record reveals that the Employer can negotiate and
has contracted concerning a large range of noncost
items. Accordingly, we conclude that the Employer
does not share the State of California's exempt politi-
cal status under Sec. 2(2) of the Act.
The parties stipulated that during the past calendar
year the Employer received gross income of over $1
million and that direct and indirect inflow exceeded
$50,000. Since the Employer's revenues exceeded any
jurisdictional standards we might apply, we find that
the Employer's operations affect commerce within the
meaning of the Act and that it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The parties stipulated, and we find, that the Pe-
titioner is a labor organization within the meaning of
Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. Petitioner seeks to represent a unit limited to all
office clerical employees. The Employer contends
there are certain positions which should be excluded
either because of their confidential nature or because
the position is supervisory.
The Employer argued that two fiscal assistant II's
(Carol Beatty and Clair Porteous) and one office
assistant III (Shirley McReynolds) are confidential
employees because they work with materials perti-
nent to union negotiations and other labor relations
matters. The work which is purportedly confidential
that is performed by the fiscal assistant III's is calcu-
lations as to the cost of various union and manage-
ment proposals. The record reveals that these compu-
tations are kept no more confidential than anything
else in the accounting department. The employees
testified that they are not involved in any interpreta-
tion or formulation of policy with respect to their
computations. With respect to office assistant III
Shirley McReynolds, Chief of Administrative Ser-
vices Ron Adams testified that McReynolds spends
approximately one-third to one-half of her time per-
forming clerical duties for the personnel office in the
areas of union negotiations, job analysis, and salary
reviews. He admitted, however, that she did not type
the Employer's proposals for negotiations. McReyn-
olds testified that she worked for personnel less than
one-third of her time, because she does typing for five
other people. She recalled that she had duplicated
some material which she was informed was for this
hearing, but she merely copied it and gave it to Ron
Adams. No grievances ever crossed her desk, and she
did not recall typing any memos for Personnel Ad-
ministrator Jeanne Jones in which Jones expressed
her opinion as to a position the Center should take
either in the instant hearing or vis-a-vis the Union.
The record further reveals that none of these three
allegedly confidential employees does work for any of
the four management representatives charged with
determining or effectuating labor relations policies.
Based on these facts, we find that these three employ-
ees are not confidential employees and should be in-
cluded in the unit.
The Employer maintained that the office assistant
V/secretary I position which was previously held by
Jackie Morris, who resigned just before the hearing, is
both supervisory and confidential. The Employer ar-
gues that she supervised three office assistant III's in
the medical unit and that she was responsible for hir-
ing, firing, reprimanding, doing performance reviews,
recording sick leave, granting leave, and approving
vacations in that unit. Her job description stated that
she may supervise the work of other clericals. The
record reveals that she never hired or fired nor recom-
mended any such action. Once she issued a report on
an employee called a prereprimand. The record is not
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LOMA PRIETA REGIONAL CENTER
clear whether Morris ever effectively recommended a
wage increase. The Employer also contends that the
position is confidential. In support of this contention,
it merely asserts that Morris was the secretary to the
chief of medical services and did secretarial work re-
garding budgets and union negotiations. On the basis
of the record before us we are unable to determine
whether this position is either supervisory or confi-
dential. We shall therefore permit any employee hold-
ing this position to vote subject to challenge.
The Employer contends that the five office assistant
IV's who work in its outer offices supervise the office
assistant III's who work in those offices and therefore
must be excluded. The office assistant IV's are super-
vised by Administrative Assistant Richard Heide-
man. The Employer maintains that since Heideman is
a new employee, the office assistant IV's have re-
cently been given more supervisory responsibility. In
late October, according to Adams, they attended a
staff training meeting at which they were oriented to
personnel policies and procedures relating to their
new supervisory role. Adams testified that, although
the personnel office does all the job posting, screening
of applications, testing, and reviewing of minimum
qualifications, it is left to the office assistant IV's to do
the interviewing and hiring, and the presence of the
personnel officer at the interview is at their invitation.
Office assistant IV Christine Bock testified, however,
that she participated in two interviews and that the
personnel officer and the then clerical supervisor, Lar-
ry Mosley, were present. All the interviewers filled
out a rating sheet. She gave her opinion, but Larry
Mosley made the decision. She testified that she has
never fired or disciplined anyone but that she will fill
out an evaluation form on the office assistant III in
her office at the appropriate time. Bock testified that
she trains the assistant III but that they do essentially
the same work. She further testified that she fills out
the vacation and time records and has been provided
with reprimand forms. In October 1978, the job de-
scription for an office assistant IV was changed to
include supervision of the work of other clerical staff
in the fulfilling of secretarial duties. On the basis of
the record facts, it seems that the status of these em-
ployees is in the process of change, and we are unable
in light of conflicting testimony to determine whether
or not they are statutory supervisors. Hence, these
employees shall be permitted to vote subject to chal-
lenge.
Based upon the above findings and the record as a
whole, we find the following unit to be appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time office clerical
employees employed at all the Employer's var-
ious locations, excluding all other employees, in-
cluding guards and supervisors as defined in the
Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
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