Michigan Eye Bank

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1377 (N.L.R.B. 1982)

MICHIGAN EYE BANK
Michigan Eye Bank and The Michigan Eye Bank
Technicians Coalition, Petitioner. Case 7-RC-
16620
December 16, 1982
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Dwight
R. Kirksey. Subsequently, pursuant to Section
102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
Regional Director for Region 7 transferred this
proceeding to the Board for decision. Thereafter,
the Employer and the Interested Party, Wayne
State University, filed briefs with the Board which
have been duly considered.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is a Michigan, nonprofit,
human-service corporation primarily engaged in
the business of securing, evaluating, and distribut-
ing human corneal tissue for the purpose of trans-
plantation. It maintains its headquarters at the Uni-
versity of Michigan at Ann Arbor, and a second fa-
cility, the one with which the instant petition is
concerned, at the Wayne State University in De-
troit, Michigan.
Pursuant to agreements with the respective uni-
versities,' medical supervision for the Employer's
enterprise is provided by two ophthalmologists,
one from the faculty of the University of Michigan
and one from the faculty of Wayne State Universi-
ty. Similarly, administrative supervision is provided
by one individual from each university. The Em-
ployer's clerical work at the Wayne State Universi-
ty location is performed by university employees,
members of a universitywide bargaining unit of
clerical workers. The responsibility for actually se-
curing, evaluating, and distributing corneal tissue is
i The Employer annually pays agreed-upon sums into special universi-
ty accounts, which the schools then segregate to pay for managing and
maintaining the Michigan Eye Bank Program.
265 NLRB No. 179
that of the technicians and research assistants,
whom the Petitioner seeks to represent. 2
The record shows that the Employer has an
annual gross revenue in excess of $350,000, of
which an amount in excess of $125,000 is derived
from services to concerns located outside the State
of Michigan. Accordingly, we find that the Em-
ployer is engaged in commerce within the meaning
of the Act and that it will effectuate the purposes
of the Act to assert jurisdiction herein. 3
2. The parties have stipulated, and we find, that
The Michigan Eye Bank Technicians Coalition is a
labor organization within the meaning of Section
2(5) of the Act.4
3. The labor organization involved claims to rep-
resent certain employees of the Employer.
4. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
2 Wayne State University contends that the Board lacks jurisdiction in-
sofar as the research assistants who work on the Michigan Eye Bank Pro-
gram are concerned because the University is an exempt employer under
Sec. 2(2) of the Act, and the research assistants are its employees or it is
at least a joint-employer with the Michigan Eye Bank over these employ-
ees. At the hearing, the Petitioner took the position that a joint employer
relationship "may" exist with respect to the research assistants.
Approximately 260 employees designated as research assistants are em-
ployed throughout Wayne State University performing or assisting re-
search. Most of them work full time on specific grant or contract proj-
ects such as the Michigan Eye Bank Program, as opposed to working on
general fund projects of the University. The record shows, however, that
their wages, hours, and working conditions are controlled, in large meas-
ure, by the University's board of governors. Thus, the University has es-
tablished a standard hiring procedure, which each unit operating within
the University must follow. The board of governors is also responsible
for fixing the range within which all research assistants must be compen-
sated. No exceptions are permitted unless the board of governors takes
special action to create a variance. In addition, the board of governors
provides for fixed-sum periodic wage increases with which each unit of
the University in which research assistants are employed must comply.
Finally, fringe benefits for research assistants are uniform throughout the
University, regardless of where in the University the individual is work-
ing.
From the foregoing and the record as a whole, we are persuaded that
the extent of the control Wayne State University exercises over impor-
tant labor relations matters affecting the employment of the research as-
sistants, whom the Petitioner seeks to represent, is such that it would be
virtually impossible for the parties to engage in meaningful collective bar-
gaining without directly and substantially involving the University, an
undisputedly exempt governmental institution. Therefore, insofar as it
calls for representation of research assistants, we shall dismiss the peti-
tion. Slater Corporation, 197 NLRB 1282 (1972).
3 Our dissenting colleague would decline jurisdiction in this case based
on Ming Quong Children's Center, 210 NLRB 899 (1974), in which the
Board articulated a rule broadly exempting nonprofit eleemosynary em-
ployers from its jurisdiction. In The Rhode Island Catholic Orphan
Asylum, a/k/a Sr Aloysius Home, 224 NLRB 1344 (1976), however, the
Board reconsidered the Ming Quong rule and found that it was no longer
viable. Thus, the Board stated that henceforth "the only basis for declin-
ing jurisdiction over a charitable organization is a finding that its activi-
ties do not have a sufficient impact on interstate commerce to warrant
the exercise of the Board's jurisdiction." 224 NLRB at 1345. We believe
that St. Aloysius was correctly decided, and shall continue to adhere to
the sound rule set forth therein.
4 The Employer argues in its brief, despite its stipulation at the hear-
ing, that The Michigan Eye Bank Technicians Coalition is not a labor
organization because the technicians the Petitioner seeks to represent are
independent contractors rather than employees. As we conclude, for the
reasons set forth infra, that the technicians are employees, we find no
merit in the Employer's contention.
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
5. The Petitioner seeks to represent a unit con-
sisting of all research assistants and technicians at
the Employer's Wayne State University location,
but has indicated its willingness to represent a unit
limited to technicians alone. The Employer con-
tends that a unit including technicians is inappro-
priate, because the technicians are independent
contractors. Wayne State University avers that the
technicians, if found to be employees, are em-
ployed solely by the Michigan Eye Bank, and that
no joint-employer relationship exists with the Eye
Bank with respect to them.
The Employer acts as the designee of the medi-
cal examiners in both Wayne County and Oakland
County, Michigan, for the limited purpose of excis-
ing the corneal tissue from those cases which the
medical examiners deem appropriate. The excisions
are performed at the county morgues by techni-
cians or, as the Employer refers to them, "Consult-
ants."5 All of the necessary equipment and supplies
for the excision procedure are provided by the Em-
ployer.
The technicians work out a schedule among
themselves, subject to the Employer's approval, to
cover the respective morgues between the hours of
approximately 7 a.m. and I a.m. According to the
Employer, the technicians are not required either
to report to or to remain at the Eye Bank's facili-
ties during their hours of availability. This assertion
is partially contradicted, however, by Shelly Tem-
perly, a technician who testified that the Employer
does require the technicians to be at the office
whenever they cover the Wayne County morgue.
If there is an excision to be done, the technician
drives to the morgue and performs the procedure,
returns the tissue to the Eye Bank, fills out the nec-
essary reports, and turns in the surgical instruments
for sterilization. In addition to compensating the
technicians for corneal excisions, the Employer
pays them for attending a weekly meeting to dis-
cuss the previous week's work.
Richard L. Fuller, the managing director of the
Eye Bank, testified that individuals cannot begin
working for the Employer as technicians until they
are first screened for the appropriate qualifications,
and then trained to do the job. The training period
lasts anywhere from 4 to 8 weeks, after which the
Employer offers a "consulting agreement" to those
who have successfully completed it. At the end of
the training period, the technician receives a lump
sum payment calculated at the rate of $3.50 per
hour for the time spent in training.
6 The technicians all work part time, and all of them are university
level students.
The Employer submitted as exhibits the agee-
ments it maintains with the five technicians. They
uniformly require, inter alia, that the technician
consult with the Employer on problems in his or
her field of specialty, corneal excision. None of the
agreements has a fixed expiration date, and all of
them may be terminated by either party at any
time by giving written notice to the other party.
Payment is set either at the rate of $5 per hour of
availability or $30 per case." The amount of com-
pensation included in each rate is fixed by Fuller.
The Employer contends that the technicians are
independent contractors because they are specially
trained and skilled individuals who set their own
hours of availability, receive a flat fee for their
work, are not supervised, and, except for the time
they spend delivering corneal tissue or attending
occasional meetings, are under no obligation to be
present at the Eye Bank's facilities. That they are
not covered by worker's compensation insurance,
the Employer further contends, is another factor
which supports its contention that they are inde-
pendent contractors, as is the fact that they receive
no fringe benefits and have no income tax or social
security deducted from the moneys paid them.
In The Beacon Journal Publishing Company,7 the
Board set forth the following test to determine
whether an individual is an independent contractor:
In determining the status of persons alleged
to be independent contractors, the Board ap-
plies a "right of control" test, which turns es-
sentially on whether the person for whom the
services are performed retains the right to con-
trol the manner and means by which the result
is to be accomplished, or whether he controls
only the result. In the latter situation, the status
is that of an independent contractor. The reso-
lution of this question depends on the facts in
each case. No one factor is determinative.
Typically, in reviewing the evidence in a case of
this kind, certain factors will tend to point to an in-
dependent contractor relationship and others to an
employee relationship. This case is no different.
However, from our reading of the record, we are
convinced that the evidence which is indicative of
employee status far outweighs that which supports
the conclusion that the technicians are independent
contractors.
The result which the Eye Bank pays the techni-
cians to accomplish is the excision of human corne-
a Technician Temperly's contract provides compensation at the rate of
530 per case. Fuller stated that the agreements offered into evidence
were current, but Temperly testified that she is presently receiving $5 per
hour plus $10 for each usable cornea pursuant to a new contract.
7 188 NLRB 218, 220 (1971).
1378
MICHIGAN EYE BANK
al tissue. In reaching this result, it is significant that
the technicians "bear slight resemblance to the in-
dependent businessmen whose earnings are con-
trolled by self-determined policies, personal invest-
ment and expenditures, securing business, and
market conditions." s Among the factors belying
the notion that the technicians are independent en-
trepreneurs are the following. Unlike businessmen,
the technicians receive all of their training directly
from, and provide their services exclusively to, the
Employer with whom they are allegedly contract-
ing.9 While learning the requisite skills to perform
a corneal excision, the Employer pays the techni-
cian in training a "flat fee" based on an hourly rate.
Afterwards, those candidates who successfully
complete the training period are offered form con-
tracts of open duration, terminable by either of the
parties at will. As technicians, they receive a flat
fee for their services instead of wages, but the Em-
ployer unilaterally sets the rate at which they are
to be compensated. Indeed, the only arms'-length
dealing that occurs between the parties appears to
be limited to whether the individual technician will
be paid by the hour, by the case, or by some com-
bination thereof. Further, in addition to paying the
technicians for removing corneal tissue, the area of
their special expertise, the Employer pays them for
attending weekly meetings where it monitors their
work. It also supplies them with all of the tools of
their "trade," surgical instruments and disposable
supplies. As to their work schedules, the techni-
cians coordinate them among themselves, while the
Employer retains final authority to settle any con-
flicts which may arise. All of the above factors are
strong indicia of an employee, rather than an inde-
pendent contractor, relationship.
In arguing that the technicians are independent
contractors, the Employer places a great deal of
emphasis on the fact that they perform their work
without supervision. While the Employer may not
exercise control over the technicians on a strict,
day-to-day basis, the Employer's contention in this
regard is misleading because it fails to take into ac-
count the nature of the technicians' work. In
Mitchell Bros. Truck Lines,' ° the Board examined
the question of limited supervision in determining
the status of owner-operator truckdrivers and made
the following observation:
[I]n evaluating the extent of daily supervision
we naturally have considered the nature of the
occupation. Because the drivers are constantly
8 See The News-Journal Company, 227 NLRB 568, 570 (1976).
9 There is nothing in the record which indicates that the technicians
work for any institution other than the Michigan Eye Bank. Rather, the
record evidence points to the conclusion that the Eye Bank alone utilizes
the technicians' highly specialized services.
iO 249 NLRB 476, 481 (1980).
on the road, Mitchell Bros. cannot supervise
them on the basis of personal observation.
Indeed, in this respect the drivers are similar
to the insurance agents in United Insurance
[Company, 390 U.S. 254, 258 (1968)], who
were out of the office making business calls.
And, the Eighth Circuit observed, in finding
that nonowner cab drivers were "employees"
under the Federal Insurance Contribution Act,
"where the nature of a person's work requires
little supervision, there is no need for actual
control."3 1 Accordingly the drivers' freedom
here from daily observance does not necessar-
ily free them from real supervision.
3l Air Terminal Cab. Inc. v. U.S, 478 F.2d 575, 580 (1973), cert.
denied 414 U.S. 404.
In the instant case, after the technician is thorough-
ly trained in the corneal excision procedure, the
work becomes fairly routine. The technician keeps
in contact with the morgues and, when there is an
excision to be performed, does so. On a day-to-day
basis, the nature of the technicians' work is such
that it requires little, if any, supervision. The
Employer does, however, effectively oversee the
technicians' work through the weekly monitoring
meetings, which it requires them to attend. Ac-
cording to Fuller, these meetings provide "the op-
portunity for the Eye Bank to try and understand
the kinds of problems that they are having on the
job .... And, hopefully improve performance, if
that's a problem or technique or what have you
[sic]."
In deciding that the technicians are employees,
we also find it persuasive that they are involved in
work which is virtually indistinguishable from that
of the Employer. As the Board observed in Mitch-
ell Bros, "Indeed, their work is not merely 'part of
the regular business of the employer,' it is the busi-
ness of the Employer." Here, the technicians
depend entirely on the Eye Bank for work, and the
Eye Bank in turn depends on the technicians to
secure the raw materials it needs to function as a
supplier of corneal tissue. In the circumstances
here, this interdependence militates convincingly
against the contention that the technicians are inde-
pendent contractors.12 Accordingly, based on the
foregoing, and the record as a whole, we find that
the technicians are employees within the meaning
of Section 2(3) of the Act.
Having concluded that the technicians are em-
ployees, we are faced with the question of whether
I The record shows that the technicians are under instructions to con-
tact Tonia Victor, the assistant director of the Eye Bank, should any
problems arise, such as inability to get to the morgue.
12 See Mitchell Bros Truck Lines, 249 NLRB at 482.
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are employed solely by the Michigan Eye
Bank or, due to certain aspects of the working rela-
tionship between the Eye Bank and Wayne State
University, are jointly employed by the two con-
cerns, the latter of which is an exempt employer
under the Act.
The Eye Bank hires, trains, and pays the techni-
cians. Their compensation is fixed by Fuller, who
is the Eye Bank's director and an employee of the
University of Michigan, not an agent or employee
of Wayne State University. They are paid directly
by the Eye Bank, from the Eye Bank's own ac-
counts, rather than indirectly from funds granted to
the University. While virtually all of the techni-
cians began their relationship with the Eye Bank as
Wayne State University student assistants, nothing
in the record indicates that the University retains
any vestige of control over their wages, hours, and
other terms and conditions of employment.' 3
Therefore, we conclude that the technicians are
employees of the Michigan Eye Bank alone and,
therefore, that jurisdiction over the Employer, as
to them, lies with the Board.
Accordingly, we find that the following employ-
ees constitute an appropriate unit for the purpose
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full-time and regular part-time technical
employees employed at the Employer's Wayne
State University division, but excluding all
office clerical employees, guards, and supervi-
sors as defined in the Act.
[Direction of Election 1 4 omitted from publica-
tion.]
CHAIRMAN VAN DE WATER, dissenting in part:
Contrary to my colleagues, I would decline to
assert jurisdiction over the Employer in this case,
and would dismiss the petition.' In Ming Quong
Children's Center, 210 NLRB 899 (1974), the Board
reexamined and reaffirmed its longstanding policy
of exercising its discretionary authority under Sec-
tion 14(cXl) to decline jurisdiction over various
types of private, nonprofit, noncommercial institu-
" As student assistants, the technicians were precluded by Wayne
State University from working more than 20 hours per week for the Eye
Bank. Thus, to increase the number of hours they could work, the Em-
ployer executed "consulting agreements" with them to cover the addi-
tional hours. Ultimately, the Employer decided to alter their status from
student assistant/consultant to consultant. This evolution, we find, is fur-
ther evidence that the Employer's attempt to maintain these individuals
as independent contractors has more to do with bookkeeping conven-
ience than the true nature of the relationship between them.
t4 [Excelsior footnote omitted from publication.l
i" I agree with the majority that the petition should also be dismissed
with respect to the research assistants on statutory grounds, because it
would be impossible for the Eye Bank and the Petitioner to engage in
meaningful collective bargaining without significantly involving Wayne
State University, an exempt employer under Sec. 2(2) of the Act.
tions. In so doing, the Board reviewed its prece-
dents and the legislative history of the Act relating
to the exercise of jurisdiction over nonprofit em-
ployers and concluded that it would not effectuate
the policies of the Act to modify its policy in this
area. Subsequently, in The Rhode Island Catholic
Orphan Asylum, a/k/a St. Aloysius Home, 224
NLRB 1344 (1976), the Board decided to abandon
the wisdom of earlier years and announced that it
would assert jurisdiction over nonprofit institutions.
I agree with the dissenters in St. Aloysius, former
Chairman Murphy and former Member Penello,
that it is inimical to the expressed will of Congress
for the Board to assert its jurisdiction over the
entire range of nonprofit entities without first ex-
amining in each case whether there are "exception-
al circumstances" warranting their inclusion.' 6 I
also concur with their view that the policy the
Board previously followed, as set forth in Cornell
University'" and Ming Quong, and summarized
below, is the appropriate one to apply in this type
of case:
If a thorough reevaluation of the effect on
commerce of a certain category of nonprofit
employers reveals that it is exerting such a
massive influence that it no longer comports
with Congress' original intent that it remain
outside the Board's jurisdiction, the Board
would assert over that class. Jurisdiction
would be asserted over any particular institu-
tion within such a class if that employer's ac-
tivities have a "substantial" impact on com-
merce. 1 8
Here, the Employer is a private, nonprofit cor-
poration operating under a charitable trust license
and governed by a volunteer board of directors. Its
first purpose is to secure human corneal tissue for
the purpose of transplantation. In addition, it con-
ducts a public education program regarding the
Michigan Eye Bank, maintains a donor pledge
system for the living to pledge their eyes upon
death, and supports and encourages eye research.
The record shows that the Michigan Eye Bank had
total income of approximately $369,000 for the
fiscal year ending June 30, 1981, and that approxi-
mately $125,000 of this income was derived from
services to concerns outside the State. There is no
evidence concerning the effect on interstate com-
merce of the Michigan Eye Bank and other oper-
ations like it. Thus, the record does not demon-
strate the "massive" impact on commerce required
under Cornell and Ming Quong to assert jurisdiction
i6 See Cornell University, 183 NLRB 329 (1970).
l Id.
Ia 224 NLRB at 1347.
1380
MICHIGAN EYE BANK 1381
generally over this category of nonprofit organiza- the criteria set forth in Cornell and Ming Quong, I
tion. must respectfully dissent from my colleagues' deci-
As the record fails to disclose any basis for as- sion to assert jurisdiction herein.
serting jurisdiction over the Employer pursuant to