Mitchell School, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1017 (N.L.R.B. 1976)

MITCHELL SCHOOL
Mitchell School , Incorporated and Main Line Day
School, Incorporated and American Federation of
Teachers , AFL-CIO,' Petitioner Case 4-RC-
11482
June 17, 1976
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer James C
Peck, Jr, of the National Labor Relations Board
Following the hearing, the Employers and the Peti-
tioner filed briefs On May 20, 1975, the Regional
Director for Region 4 transferred this case to the
Board for decision and thereafter the Employers and
the Petitioner filed with the Board the briefs previ-
ously submitted to the Regional Director
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 2
Upon the entire record in this proceeding, the
Board finds
1 The Petitioner seeks to represent faculty mem-
bers and the librarian employed by the Employers,
stipulated by the parties to be Joint Employers,
which are profitmaking corporations, each operating
the school contained in its name on a combined cam-
pus in Haverford, Pennsylvania Mitchell School and
Main Line Day School are both private schools pro-
viding curricula for 1st through 12th grades While
Mitchell is essentially a private preparatory school
for normal children, Main Line Day School is a spe-
cialized institution for handicapped children whose
learning problems are based on social and emotional
disturbances Mitchell derives its revenues of approx-
imately $200,000 per year from private tuition pay-
ments Main Line, on the other hand, a state-ap-
proved school for receipt of public funds for
providing special education to handicapped children,
receives most of its annual revenues of approximate-
ly $2,050,000 from a combination of state and local
i We take official notice of the Petitioners affiliation with AFL-CIO
2 We hereby grant the Employers motion which is unopposed to reopen
the record for the limited purpose of admitting into evidence certain regula
bons promulgated by the State Board of Education for the Commonwealth
of Pennsylvania which were excluded by the Hearing Officer because they
had not been finally adopted at the time of the hearing
1017
school district contributions toward the tuition fees
applicable to each child Every Main Line student is
a resident of Pennsylvania and is technically a stu-
dent in his or her home school district, to which
Main Line must report the student's progress and
development The current combined payment of
public funds for each student's tuition is $3,300, out
of a total fee of $4,150 for tuition and special ser-
vices Parents must pay the $850 difference but, as
the president and sole shareholder of the Employers 3
testified, Main Line provides tuition aid for whatever
amount is necessary to parents who cannot pay the
$850 In some cases, social agencies contribute to this
tuition aid
Original admission of a student to Main Line is
subject to the approval of the home school district
and the State Department of Education, for the dual
purpose of insuring that each child is satisfying the
compulsory educational laws and that the child's
condition justifies providing him or her with a pub-
lic-supported private education at an institution like
Main Line 4 Similarly, the continued enrollment of
each child is subject to annual review by the school
district The school itself must be evaluated and re-
evaluated at least every 3 years under the auspices of
the state secretary of education to determine whether
it continues to comply with state laws and regula-
tions concerning the education of handicapped chil-
dren
Basically, then, Main Line Day School has the
same relationship to the public education system of
the Commonwealth of Pennsylvania as the institu-
tions over which we declined to assert jurisdiction in
Overbrook School for the Blind, 213 NLRB 511
(1974), and Pennsylvania School for the Deaf, 213
NLRB 513 (1974) Although there may be some dif-
ferences in detail and application, the relationship is
governed by the same set of state board of education
regulations which covers public financing of educa-
tion for physically or mentally handicapped persons,
including the socially and emotionally disturbed, in
approved private schools The only differences of ar-
guable substance are that Main Line is organized for
profit, that its employees may not participate in the
public school retirement system, and that parents
may be required to contribute to tuition in addition
to the public financing None of these factors, how-
ever, is decisive in our determination of whether the
institution is an adjunct to the public school system
as we found in the Overbrook School and Pennsylva-
nia School cases In Rural Fire Protection Company,
216 NLRB 584 (1975), we declined to assert jurisdic-
3 Both Employers are owned solely by Mitchell Associates Inc which in
turn is owned solely by the witness Barry P Hershone
° Tuition is paid in full by the parents o` a very few students who have not
received approval for public financing
224 NLRB No 127
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion over a private profitmakmg corporation whose
employees were not eligible for any substantial fringe
benefits available to city employees, where the em-
ployer was performing, pursuant to contract, an es-
sential municipal function for the city In the instant
case, as well, Main Line is performing a delegated
function which is the acknowledged responsibility,
arguably even the constitutional duty,' of the Com-
monwealth Since the Commonwealth uses Main
Line to meet its obligation to provide appropriate
education to handicapped children, Main Line is an
adjunct to the public school system irrespective of
the fact that it collects some of its tuition fees from
other sources, including payments by those parents
of individual students who can afford it The point
remains that this is the method by which the Com-
monwealth has determined it will meet its obligation
There is no evidence that any eligible child has been
kept out of Main Line or deprived of a special educa-
tional program for lack of private resources And
while it may seem arguably inconsistent to require
parents, even if they can afford it, to pay for a service
the Commonwealth acknowledges to be its own obli-
gation,6 that is a matter of legal rights and obliga-
tions as between the parents and the Commonwealth
over which we, of course, have no power
Main Line Day School is, we conclude, an adjunct
to the public school system over which we shall de-
cline to assert jurisdiction Mitchell School is another
matter It is a private school with annual revenues of
approximately $200,000 but is a joint employer with
Main Line Day School, with combined annual reve-
nue of over $1 million, the jurisdictional standard for
profitmaking secondary schools 7 As the consider-
ations which impel us to decline jurisdiction over the
latter do not apply to Mitchell School, we find that
the Employers are jointly engaged in commerce with-
in the meaning of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction over
Mitchell School, Incorporated
It is important to emphasize that our decision to
decline jurisdiction over Main Line is not based
upon a finding that its operations have no impact or
effect on commerce, but rather upon our conclusion
that it is part of a facility or enterprise-a municipal
corporation or part thereof-which is specifically ex-
empt or excluded from the Act We cannot assert
5 See Mills v Board of Education of the District of Columbia 348 F Supp
866 874-876 (D C D C 1972) Pennsylvania Association for Retarded Chil
dren v Commonwealth of Pennsylvania 343 F Supp 279 296-297 (D C Pa
1972)
6 Pennsylvania Association of Retarded Children v Commonwealth of Penn
sylvania 334 F Supp 1257 1259 (D C Pa 1971)
7 The Windsor School Inc 200 NLRB 991 (1972) We see no basis on
which to establish a different standard for schools which encompass ele
mentary and secondary grades
jurisdiction over such bodies or facilities, regardless
of their impact on commerce and however vast and
significant we might think such impact to be It is
this, and not the lack of impact on commerce, which
renders Main Line exempt While Main Line's gov-
ernmental character removes it from the definition of
"employer" to whom the Act applies, it is plain that
its activities do affect commerce The operation of
state schools and hospitals is within the commerce
power, because "It is clear that labor conditions in
schools and hospitals can affect commerce " Mary
land, et al v Wirtz, 392 U S 183, 194 (1968) And the
fact that they are state owned and operated does not
place them beyond the reach of the commerce power
Wirtz at 195 In the face of these decisions, and in the
words of the Supreme Court, "This argument [that
the governmental character of the operation keeps it
outside commerce] is simply not tenable " Wirtz at
195 8
Where a nonexempt enterprise is a joint employer
with one outside our jurisdiction, the potential im-
pact on commerce of labor disputes at the nonex-
empt enterprise is appropriately measured by the to-
tal and combined size of both the exempt and
nonexempt employers It is well established that
where separate operations constitute an integrated or
Joint enterprise, as here, jurisdiction may be asserted
over one operation even though it alone does not
meet our jurisdictional standards 9 Additionally, we
have held that in determining whether or not opera-
tions of a joint employer meet our jurisdictional stan-
dards, the Board considers the total volume of all the
joint employers' operations, even though the opera-
tion of one of the employers may not, individually,
affect commerce substantially 10 It is clear from the
record that the operations of Mitchell are closely re-
lated to those of Main Line and any labor dispute
could, and probably would, affect the larger Main
Line school We find no support in the record or in
labor relation realities that a labor dispute at Mit-
chell would be limited to the $200,000 gross revenues
of Mitchell
B Member Jenkins also relies on Powell et al v United States Cartridge
Co 339 U S 497 511 et seq (1950) as establishing that governmental
activities may be in commerce or may affect commerce There the Supreme
Court held that the production of munitions for the Federal government
the material at all times being owned by the government is production for
commerce even though the use is for war rather than sale or exchange and
that the transportation of such munitions is itself commerce
9 See e g Glass Fiber Moulding Company and Aurcolo Manufacturing Co
104 NLRB 383 398-399 (1953)
10 See Siemons Mailing Service 122 NLRB 81 84 (1958) See also City
Cab Company and Its Members 167 NLRB 681 (1967) Dover Tavern Own
ers Association 164 NLRB 933 934 (1967) Local 3 International Brother
hood of Electrical Workers AFL-CIO (Ladd Electrical Corp) 158 NLRB
410 411 (1966) B if M Excavating Inc 155 NLRB 1152 1154 (1965)
Budget Ranch Market 148 NLRB 1469 (1964) Potato Growers Cooperative
Company 115 NLRB 1281 1283 (1956)
MITCHELL SCHOOL 1019
2 The Petitioner is a labor organization claiming
to represent certain employees of the Employers
3 A question affecting commerce exists concern-
ing the representation of employees of the Employers
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act
4 The parties are in agreement as to the appropri-
ate unit, consisting of full-time and regular part-time
teachers, librarians, guidance counselors, psycholo-
gists, and speech therapists, excluding, inter aka, all
nonprofessional employees Such a unit is appropri-
ate in scope'' And we have no reason to question the
basis for the parties' implicit stipulation that ev-
eryone in the unit is a professional employee within
the meaning of Section 2(12) of the Act Therefore,
we find that the following stipulated unit is appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(c) of the Act 12
All full-time and regular part-time teachers, li-
brarians, guidance counselors, psychologists,
and speech therapists, excluding all other em-
ployees, department chairpersons, substitutes,
nonprofessionals, guards, and supervisors as de-
fined in the Act
[Direction of Election omitted from publication ]13
MEMBER FANNING, dissenting
I would assert jurisdiction over both of the Joint
Employers in this proceeding Mitchell School and
Main Line Day School are separately incorporated
and their stock is wholly owned by another corpora-
tion whose sole stockholder is Barry P Hershone,
president of each corporation and the founder and
administrator of the schools All the corporations are
organized under the Business Corporation Law of
the Commonwealth of Pennsylvania, and are orga-
nized and are operated for the purpose of making a
profit Both schools offer educational opportunities
in grades 1 to 12 to private students who choose pri-
vate education over public education and are able
and willing to pay the tuition charged by the schools
Mitchell offers education to students without any
11 In New York University 205 NLRB 4 (1973) a majority of the Board
Chairman Miller and Member Fanning dissenting held that part time fa
culty members at a university did not share a sufficient community of inter
est with the full time faculty to warrant including them in the same unit We
have not had occasion to decide whether this holding has any application to
part time faculty in secondary or elementary schools We only decide here
that the parties stipulation to include certain part time employees includ
mg teachers does not offend the policies of the Act Cf Otis Hospital Inc
219 NLRB 164 (1975)
12 Some of the employees in the stipulated unit spend part of their time
performing services for Mitchell School and part of their time for Main Line
Day School Should a bargaining representative be certified such employ
ees wiil be represented by it only with respect to the services they perform
for Mitchell School
13 [Ex-elsior In omitted from publication ]
learning disabilities Main Line, on the other hand,
offers education to students who have learning disa-
bilities stemming from emotional or social handi-
caps Mitchell charges a tuition varying from $1,650
to $1,950 depending on the grade in which the stu-
dent is enrolled Its total revenues from such sources
amounts to $245,000 Main Line charges a tuition of
$4,150 Its total revenues amount to approximately
$2,250,000 annually, of which over $400,000 reflects
tuition fees paid by the families of approximately 100
of its 500 students The remainder of its revenues
comes from the same tuition fee charged by Main
Line to 400 or so students who are assigned to the
school by local public school districts which do not
have the necessary facilities to discharge their obliga-
tion under the constitution of the Commonwealth to
offer such students a public education Such school
districts, however, pay only $3,000 of the total tuition
charged by Main Line which looks to the families of
the students for the remainder
The two schools operate on a single campus with
common facilities The campus is divided into a low-
er school and an upper school Students from both
schools are assigned to the lower school and students
from both schools are assigned to the upper school
In fact, students from both schools often attend
classes together In some cases, the classes may be
taught by teachers administratively assigned to Mit-
chell School, in other cases, by teachers assigned to
Main Line School Moreover, some teachers admin-
istratively assigned to one school are paid by the
other school There is a common administrative staff,
centering of course in the person of Barry P Her-
shone, for the two schools This intermingling of stu-
dents and teachers is explained not alone by the sin-
gle effective ownership and administrative control in
the person of Barry P Hershone, but also by the
educational principle which recognizes the desirabili-
ty of conducting the education of students with
learning disabilities in proximity to normal students
On the basis of the foregoing, it is quite obvious
that the operations of the two schools are highly inte-
grated and that their operations must be viewed in
their totality in deciding the jurisdictional questions
presented herein I do not understand my colleagues
to disagree with me on that aspect of the case for I
understand their position to be that such consider-
ations lead to assertion of jurisdiction over Mitchell
School notwithstanding its integration with the oper-
ations of Main Line, which they deem beyond the
_Jurisaictional reach of the Act
I believe my colleagues wrongly view Main Line as
a "part of a facility or enterprise, a municipal corpo-
ration or part thereof, which is specifically exempt or
excluded from the Act " The only statutory exemp-
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion afforded to enterprises anywhere remotely simi- in no way compelled by the State nor is it the result
lar to those before us is that found in Section 2(2) for of any agreement with the State or the local public
"any wholly owned government corporation" or school districts to take over and discharge the State's
"any State or political subdivision thereof " The Em- constitutional obligation to the students There is
ployers are not government-owned corporations or nothing in any of the foregoing on which to base a
political subdivisions of Pennsylvania They were not finding that Main Line is exempt from the Board's
created or established by the Commonwealth, nor jurisdiction as a part of a municipal corporation or a
does the Commonwealth in any manner, shape, or facility of such corporation or a political subdivision
form appoint their controlling administrators or de- of the Commonwealth of Pennsylvania
termine how they shall operate The only role the Moreover, fair consideration of the facts concern-
Commonwealth played in the establishment of the ing the integration of operations of the two schools
schools was to approve and register their articles of administratively and functionally, the common own-
incorporation, just as it does for all corporations in- ership and control of the two schools, the centralized
corporated in the Commonwealth It is true, of control and administration of labor relations, the
course, that in order to operate as a private school in stipulated concession that Main Line and Mitchell
Pennsylvania the Employers are required to meet are Joint Employers of each other's employees, and
certain minimum standards established by the board the fact that Board declination of jurisdiction over
of education This is as true of Mitchell, which my either or both of these schools will not operate under
colleagues agree is within the Board's jurisdiction, as Pennsylvania law to place them under the State's
it is of Main Line It is also true that Main Line, in public employee labor relations law (the law regulat-
order to qualify to receive students assigned to it by ing the labor relations of public schools and school
local public school boards, is subject to even stricter employees, whose functions Main Line is supposedly
standards However, it is obvious that these stricter discharging) must lead to the conclusion that this is
standards are not conditions imposed upon Main not a case in which it serves to effectuate either the
Line as a condition of Main Line's continued opera- policies of the Act we administer or any other public
tion as a private school-it could fail to meet those policy on a state or national level to decline jurisdic-
stricter standards and continue to operate as a pri- tion over Main Line's operations
vate school 14 Nor is there any compulsion on Main The fact of the matter is that the employees of the
Line to accept public school students Rather those two schools naturally constitute a single appropriate
standards have been established as a limitation on unit for purposes of collective bargaining The Board
the right of a public school board to assign students cannot bring stability to the labor relations involved
to Main Line and other schools instead of creating its herein by an artificial sundering of the employees of
own facilities for furnishing handicapped students Mitchell from the employees of Main Line, as my
the public education they are entitled to receive colleagues do Nor can it responsibly close its eyes to
Main Line makes its own determination whether to the substantial impact on commerce of a disruption
comply with the state standards and make itself eligi- of the school's operations flowing from labor strife
ble to compete with other schools to receive such between the schools and their employees As the
students So long as it desires such business, it must Employer's operations are substantially in excess of
adhere to the standards, but the decision to do so is the standard the Board applies to educational institu-
tions, I would, for all the foregoing reasons, assert
14 As noted above approximately 100 of Main Line s students are private jurisdiction herein and direct an election in a unit of
students paying the full tuition costs teachers of both schools as sought by Petitioner