Rosenberg Library Assn.

National Labor Relations Board - Board Decisions

Apr 24, 1984

269 N.L.R.B. 1173 (N.L.R.B. 1984)

ROSENBERG LIBRARY ASSN.
Rosenberg Library Association and American Feder-
ation of Teachers, AFL-CIO, Petitioner. Case
23-RC-5187
24 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a petition filed 2 December 1983 by the
American Federation of Teachers, AFL-CIO (the
Petitioner or the Union), a hearing was held on 16
and 20 December 1983 before Hearing Officer Ber-
nard D. Getto of the National Labor Relations
Board. Rosenberg Library Association (the Library
or the Employer) participated in the hearing.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Proce-
dure, by direction of the Regional Director for
Region 23 this case was transferred to the Board
for decision. Thereafter the Employer and the
Union filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Contary to the contentions of the Employer the
Union argues that the Library is not a political sub-
division within the meaning of Section 2(2) of the
Act, that the Board should assert jurisdiction over
the Library, and that the Board should direct an
election in a unit comprised of all employees of the
Library except the chief executive officer and li-
brarian, John D. Hyatt, the office manager, the
heads of 8 of the Library's 10 departments, and the
guard.' Contrary to its position at the hearing the
Union contends that a single ballot election is ap-
propriate inasmuch as none of the requested em-
ployees is a professional under its view of the Act.
For the reasons below we find that it would not ef-
fectuate the policies of the Act to assert jurisdic-
tion over the Library and we dismiss the petition
on the grounds that it is exempt as a political subdi-
vision.
Upon the entire record in this case the Board
finds:
The Rosenberg Library opened in 1904 pursuant
to the terms of the will of Henry Rosenberg. Its
I The unit description set forth in the Petitioner's election petition re-
quested: "All professional and non-professional employees, including li-
brarians and assistants, clerks, custodians and maintenance. Excluded: All
supervisors as defined in the Act." At the hearing the Union indicated
that it was willing to proceed in an election in any unit found to be ap-
propriate.
269 NLRB No. 197
purpose was and is to serve as a public library and
museum for the people of Galveston, Texas. In
1905 the Galveston City Council merged the Gal-
veston City Library into the Rosenberg Library.
The 20-member board of trustees established under
the Rosenberg will governs the Rosenberg Library.
Members of the board of trustees must be legal
residents of Galveston County. The board of trust-
ees is a self-perpetuating body in that members
serve for life terms and vacancies are filled as they
arise by vote of the remaining members. The trust-
ees meet annually to elect a seven-member board
of directors which carries out on a day-to-day basis
the policies established by the trustees. The board
of directors is responsible to the trustees and serves
also as the Galveston County Library Board.
The Rosenberg Library is the headquarters li-
brary for the Galveston County Library System
which consists of six library facilities in addition to
the Rosenberg Library.2 Operating funds for the
Library are derived from city and county taxes, in-
vestments and endowments, state and Federal reve-
nues, overdue fines, processing charges, and gifts.
During the last fiscal year the Library's operating
budget totaled approximately S983,000, 75 percent
of which (over $700,000) was derived from county
and city taxes ($160,000 from the county and
$540,000 from the city), 15 percent was derived
from investments and endowments, and 10 percent
from Federal and state funds, fines, and gifts.
The board of directors employs a librarian who
serves not only as the librarian and chief executive
officer of the Rosenberg Library but also as both
the city and county librarian. John D. Hyatt has
served in this capacity for over 19 years. Given his
multiple roles, Hyatt is responsible through the
board of directors to the city council for the ex-
penditure of city tax funds, to the Galveston
County commissioners for the expenditure of
county funds, to the board of trustees for the ex-
penditure of private gifts and endowments, and to
various agencies for the expenditure of state and
Federal funds. In his role as county librarian Hyatt
administers the County Library System for the
board of directors and works with an advisory
council made up of representatives of all seven li-
braries in the county system. This advisory council
formulates policies, designs the yearly plans for
services to be offered by the libraries, and works
out budgets intended to fulfill the yearly plans.
These items are first submitted to the board of di-
rectors for approval. The board then submits the
'The other members of the County Library System are the LaMarque
Public Library, the League City Public Library, the Dickinson Public Li-
brary, the Friendswood Public Library, the Hitchcock Public Library,
and the Sante Fe Public Library.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
budget requests to the county judge who, together
with the county auditor, works up a budget pro-
posal for consideration by the county commission-
ers. The commissioners hold a series of public
hearings and ultimately determine the amount of
county moneys which will be allotted to the Li-
brary.
The county controls how and for what purposes
its funds are spent through its approval of the line-
item budget request. Most of the county tax dollars
are expended for materials and supplies required by
the Library. No county tax funds are permitted to
be used for salaries of Library personnel.
Under the terms of the Galveston City charter,
the city provides the Library with an amount of
money equal to 5 cents per $100 of real estate valu-
ation in the city. No line-item budget request is re-
quired from the Library to the city council unless
the Library is seeking more than the established 5
cents per $100 minimum tax allotment. However, if
the Library wants more than this minimum, it must
request it through a specific budget proposal which
the city council can accept or reject. In either case,
each year the Library provides the city with an
audit of the completed year's expenditures so the
city can be assured that its funds were used appro-
priately.4
In addition, as a member of the Texas State Li-
brary, the Library must report to that body every
year regarding its activities in order to qualify for
state moneys and Federal grants. For example, the
Library must provide information on its hours of
operation in order that the State can assure that it
is open the required minimum number of hours; it
must provide information regarding its staffing
levels and the qualifications of its employees; and it
must even inform the State about the number of
people who attend meetings in various meeting
rooms of the Library. Similar reports are required
of the Library to the Houston Area Library
System which also has a role in the distribution of
certain federally provided benefits in which the Li-
brary shares as a member of the system. Yet an-
other source of Federal funds exists through cer-
tain grants-in the coming year expected to
amount to $6000-which are channeled through
the Texas State Library to the city of Galveston.
3 The sole exception to this is the Library's extension department
which is funded almost totally by the county. The only other source of
extension department revenues is a small endowment for library services
to elderly homebound individuals. The salaries of nearly all other Library
employees come from city funds
' Hyatt testified that the city council has carefully examined the Li-
brary's use of city-dispensed funds and that it "questioned ... very seri-
ously" the Library's perceived over-generosity with regard to employee
fringe benefits. Hyatt stated that the council's approval of any request for
more than the minimally established amount would depend on its approv-
al of such Library policies.
The purposes for which these funds are used must
receive the prior approval of the Galveston city
manager.
While the wages and benefits of Library employ-
ees are not the same as those of city or county em-
ployees, the board of directors reviews the city and
county wage and benefit scales in formulating the
rates for Library personnel. Testimony established
that the Library was rarely able to match the city
or county pay levels, but that it did attempt to
follow a pay scale which reflected the relative dif-
ferences between comparable job classifications at
the city and county levels. Allocations for mileage
and travel expenses parallel those established by
the city, except for the county-funded extension de-
partment which follows the county guidelines. Li-
brary employees are eligible to participate in the
Galveston City Employees Credit Union.
In deciding whether to assert jurisdiction over
the Library, the Board must determine whether the
Library constitutes an employer as defined by the
Act or whether, as the Library asserts, it falls
within the political subdivision exception under
Section 2(2) of the Act. The political subdivision
exception was defined by the Supreme Court in
NLRB v. Natural Gas Utility District of Hawkins
County, Tennessee5 as including those "entities that
are either (1) created directly by the state, so as to
constitute departments or administrative arms of
the government, or (2) administered by individuals
who are responsible to public officials or to the
general electorate."
The Board has previously applied this Hawkins
definition to a public library. In Jervis Public Li-
brary Assn. 6 the Board majority dismissed a peti-
tion for an election among that Library's employ-
ees, finding that the degree of governmental oper-
ating and budgeting control coupled with the histo-
ry of the institution as a state-authorized education-
al facility were sufficient to characterize the library
as an agent of the State of New York or, in the
language of the Hawkins decision, "an 'administra-
tive arm' of the State in providing educational
services to the public." 7 The Jervis Library had
been admitted as part of the University of the State
of New York for over 85 years; operated under the
state commissioner of education's regulations; re-
ceived substantial city and state funding; was sub-
ject to significant control by the city and the state
by virtue of their budgetary oversight authority;
and its employees were participants in a state re-
tirement system as well as a city insurance plan.
5 402 U.S. 600, 604-605 (1971).
6 262 NLRB 1386 (1982).
' Id. at 1388.
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ROSENBERG LIBRARY ASSN.
We find significant similarities between the situa-
tions in the Jervis case and the instant one. The
Rosenberg Library operates under Texas State Li-
brary regulations and must verify its compliance
with such regulations on a regular basis. The Li-
brary is heavily dependent on city, county, state,
and Federal tax moneys as sources for operating
funds. Of its total budget 75 percent is derived
from city and county funds alone. While the city
charter specifies the Library's minimum yearly
funding entitlement, with only a postexpenditure
audit to verify the proper allocation of tax re-
sources, any need for money above this designated
funding level must be submitted as a formal line-
item budgetary request to the city council. In
either event the Library is answerable to the city
for its expenditure of city-collected tax revenues
and therefore is subject to city council approval of
its policies. With regard to county funding the Li-
brary must prepare and submit annual line-item
budget requests to the county judge and the county
commissioners for action and approval. The Rosen-
berg Library's board of directors and its librarian
serve also as the county library board and the
county librarian. Given these dual responsibilities,
the librarian must ensure that all seven libraries
which comprise the County Library System
comply with the requirements for participation in
that system-including employee qualifications,
staffing, hours, and funding. In addition to these
duties the Rosenberg Library librarian serves as the
Galveston city librarian. The Rosenberg Library
operates as a public facility to serve the needs of
both city and county residents alike. Finally, the
Library is a part of the Houston Area Library
System which also establishes certain standards for
employee qualifications, staffing, hours, and fund-
ing (from state and Federal sources). Clearly,
therefore, the Rosenberg Library is administered
by individuals who are responsible to public offi-
cials-the county judge, county commissioners,
city council, the city manager, and the Texas state
librarian-or the general electorate which ultimate-
ly, through public hearings and possible ballot re-
ferenda concerning tax assessments, control the Li-
brary's budgetary and operational policies.8
Accordingly, we shall dismiss the petition
herein. 9
ORDER
The petition is dismissed.
Member Zimmerman dissented in Jervis Public Library Ann., supra,
and does not rely on that case here. He agrees with his colleagues, how-
ever, that the Library meets the definition of an exempt political subdivi-
sion because it is administered by individuals-the board of directors and
the librarian-who are responsible to public officials or to the general
electorate.
9 In view of our finding that the Library is exempt as a political subdi-
vision we find it unnecesary to determine whether the Employer has suf.
ficient control over the employment conditions of its employees to enable
it to bargain with a labor organization as their representative.
Member Hunter does not subscribe to the so-called "right of control"
test. See his dissenting opinion in Wordsworth Academy, 262 NLRB 438
(1982).
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