Ross County Community Action Commission, Inc.--Head Start Program

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 480 (N.L.R.B. 1989)

480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ross County Community Action Commission, Inc.-
Head Start Program and Ohio Association of
Public School Employees of the American Fed-
eration of State, County and Municipal Employ-
ees, AFL-CIO. Case 9-CA-24141
May 31, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On April 11, 1988, Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions 'and to adopt the recommended Order'
for the following reasons.
We agree with the judge's fording that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to bargain with the Union
as the certified representative of its employees. In
reaching our decision, however, we do not fmd it
necessary to rely on the judge's discussion of the
Respondent's ability to engage in meaningful bar-
gaining as that issue was not timely raised.
As the result of an original hearing and a remand
hearing in Case 9-RC-14925, the Regional Direc-
tor for Region 9 of the Board issued a Decision
and Direction of Election on July 18, 1986, in
which he found that the Respondent met the defi-
nition of "employer" under Section 2(2) of the Na-
tional Labor Relations Act and that no "city, state
or federal officials exercise sufficient control over
the Employer's labor relations so as to preclude
meaningful negotiations between the Employer and
a representative of its employees." No request for
review of the July 18 decision was filed. Following
an election conducted on October 8, 1986, the
Union was certified on October 16, 1986.
On February 11, 1987, the Union sent a letter to
the executive director of the Ross County Head
Start Program requesting bargaining . On February
23, 1987, the Respondent by letter denied the re-
quest.
On February 27, 1987, the Respondent filed with
the Regional Director a Motion to Dismiss Certifi-
cation of Petitioner asserting that its situation was
analogous to GMN Tri-County Community Action
' We have modified the judge's recommended Order to include the
narrow "in any like or related" remedial order language
Committee2 and that the Regional Director's dis-
missal of the GMN petition required a revocation
of the certification in its case . By order dated
March 19, 1987, the Regional Director dismissed
the Respondent's motion fording that-the Board's
discretionary jurisdiction, rather than statutory ju-
risdiction, was involved and concluding that
[a]lthough the existence of statutory jurisdic-
tion may be raised at any time, it is well set-
tled that the issue of discretionary jurisdiction
must be timely raised. Anchor Tank, Inc., 233
NLRB 295 (1977); Pollack Electric Co., Inc.,
214 NLRB 970 (1974); Austin Developmental
Center, Inc., 236 NLRB 724 (1978); and NLV
Casino Corporation, d/b/a Silver Nugget,' 174
NLRB 42 (1969).
On April 3, 1987, the Respondent filed a request
for review of the Regional Director's order deny-
ing its motion to dismiss.
On April 21, 1987, the Union made a second re-
quest for bargaining.
On April 27, 1987, the Regional Director for
Region 9 issued a complaint alleging that the Re-
spondent had violated Section 8(a)(5). The Re-
spondent filed an answer, admitting in part and de-
nying in part the allegations of the complaint.
On May 11, 1987, the Board denied the Re-
spondent's April 3 request for review, and its re-
quest, in the alternative, to reopen the record.
On May 21, 1987, the General Counsel filed with
the Board a Motion for Summary Judgment. On
August 25, 1987, the Board denied the General
Counsel's motion and, sua sponte , remanded the
case to the Regional Director. The Board directed
the Regional Director to take further evidence on
the Respondent's "tripartite Board of Directors" to
enable the Board to determine whether the Re-
spondent was a Section 2(2) political subdivision
within the meaning of NLRB v. Natural Gas Utility
District of Hawkins County, 402 U.S. 600 (1971).
As a result of that remand and a hearing, Judge
Ricci issued his April 11, 1988 decision, in which
he rejected the Respondent's contention that the
Federal Government exercises control over its
labor relations to the extent that it is unable to
engage in meaningful bargaining on behalf of its
employees, and found that the Respondent violated
Section 8(a)(5) and (1) by refusing to bargain with
the Union. We agree with the conclusion, but do
not reach that rationale.
2 Case 9-RC-15033 There the Regional Di rector found that GMN, a
Head Start organization, lacked sufficient control of its labor relations to
engage in collective bargaining and declined jurisdiction under Res-Care,
Inc., 280 NLRB 670 (1986).
294 NLRB No. 36
ROSS COUNTY COMMUNITY ACTION COMMISSION
The Respondent's ability to engage in meaningful
bargaining, a question of discretionary jurisdiction,
was decided in the Regional Director's Decision
and Direction of Election. The Respondent did not
request review. The Respondent, thereby, waived
any discretionary jurisdiction issue and its attempt
to raise it at this late.stage in the proceedings is un-
timely.
At the hearing the Respondent specifically stipu-
lated that it was not a political subdivision of the
city of Chillicothe, the county of Ross, or the State
of Ohio, and there is no assertion that it is a gov-
ernmental agency. I is therefore clear that the Re-
spondent is an employer under Section 2(2) of the
Act, and subject to the Board's statutory jurisdic-
tion.
Thus we agree with the judge that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to bargain with the Union.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Ross
County Community Action Commission, Inc.-
Head Start Program, Chillicothe, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Substitute the following for paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
Jack Baker, Esq., for the General Counsel.
James H. McCloskey, Esq. (Clemens, Nelson and Associ-
ates, Inc.), of Columbus, Ohio, for the Respondent.
Rankin M. Gibson, Esq., of Columbus, Ohio, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held on 17 November 1987, at
Chillicothe, Ohio, on complaint of the General Counsel
against Ross County Community Action Commission,
Inc.-Head Start Program (the Respondent). The com-
plaint issued on 27 April 1987, on a charge filed on 24
March 1987 by Ohio Association of Public School Em-
ployees of the American Federation of State, County and
Municipal Employees, AFL-CIO (the Union or the
Charging Party). The essential allegation of the com-
plaint is that the Respondent violated Section 8(a)(5) of
the Act by unlawfully refusing to bargain with the
Board-certified exclusive representative of its employees.
In its answer the Respondent admits all the factual al-
legations of the complaint except one. There is no dis-
481
pute, therefore, as to the following facts. After a Board-
conducted election in which the Union won a majority,
the Union was certified as regular bargaining agent. The
Union then asked the Respondent to bargain with it, and
the Respondent refused. Its reason for so refusing to deal
with the Union concerning the conditions of employment
of its employees in the agreed-on appropriate unit is the
question that raised the issue to be resolved on the basis
of the evidence received in the hearing held on 17 No-
vember 1987.
It is a contention of the Respondent that the Board
does not have, or should not exercise, jurisdiction over
the operation of this Respondent because the control
which governmental agencies have over its day-to-day
operations makes it impossible for it to engage in mean-
ingful negotiations with the Union of the employees. The
General Counsel and the Charging Party argue to the
contrary.
Briefs were filed after the close of the hearing by the
General Counsel and the Respondent.
On the entire record and from my observation of the
witnesses, I make the following
1. JURISDICTION
The formal papers name Ross County Community
Action Commission, Inc. as the Respondent in this case.
Actually the real respondent is a subordinate organiza-
tion within the larger one called the Head Start Pro-
gram. The overall organization, an Ohio corporation, is
engaged in the business of providing community services
to low-income, handicapped, preschool children and
their families in Chillicothe, Ohio. During the 12-month
period preceding issuance of the complaint, in the course
of its operations, Head Start Program derived gross reve-
nues in excess of $250,000. During the same period it
purchased and received at that location goods and mate-
rials valued in excess of $50,000 from other enterprises
located within the State of Ohio, each of which enter-
prise had received the same products, goods, and materi-
als directly from points outside the State of Ohio.
The Head Start Program employs about 20 employees
and the operation is conducted under the direct supervi-
sion of June Acton, the director of Head Start. She su-
pervises the employees, she prepares annual budget re-
ports which go to the Federal Government before the
funds are appropriated, she makes changes in the wage
scales from time to time, etc. Acton was also the sole
witness who testified in support of the Respondent's de-
fense in this refusal-to-bargain proceeding.
Decision here must rest on the principle of law enunci-
ated in the Board's decision in Res-Care, Inc., 280 NLRB
70 (1986). The Board there established two tests that
must be met before jurisdiction will be asserted over a
community action organization that is funded by state or
Federal money. The Employer may not be a governmen-
tal agency, or a political subdivision of any state, city, or
county. The parties here stipulated that this Respondent,
and its Head Start Program, is "neither a political subdi-
vision of the State of Ohio, the County of Ross, or the
city of Chillicothe." With this precise stipulation on the
record, there is no need here to detail the extended testi-
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mony offered by the General Counsel to prove that one
critical fact.
It is the second Res-Care test of jurisdiction that is dis-
puted here. And that one is: Because the funds support-
ing the operation are supplied by governmental agencies
of one kind or another, does the immediate management
of this Head Start Program have sufficient responsibility
to engage in "meaningful" bargaining with the Union
about the conditions of employment of the employees it
hires? It is this area of litigation in which no two cases
can be exactly alike. How much bargaining is "meaning-
ful?" What are the really important elements in a man's
employment that can be said to decide such a question?
Each case must be decided on the pertinent facts that are
truly relevant to the bargaining process between union
and employer. In the light of the record evidence, I find
that this Haed Start Program has sufficient power to
engage in such meaningful bargaining. i
The Respondent, through its sole witness, Acton,
placed into evidence 14 documents, totaling 251 pages of
print. Most of them are publications' issued by govern-
mental agencies concerning public welfare operations
like this Head Start Program, and mostly funded with
grant money. With the exception of two of these-men-
tioned below-none of them bears any relationship to the
question whether this precise Respondent is free to
engage in collective-bargaining with the Union. After
identifying exactly what these documents are, the wit-
ness admitted-clearly and directly-that none of them
touch on the question of labor relations.
One of the exhibits is an information memorandum
issued by the United States Depatment of Health and
Human Resources in January 1987. Among the direc-
tions is the following statement:
Comparability of Wages
Sec 653. The secretary shall take such action as
may be necessary to assure that persons employed
in carrying out programs financed under this sub
chapter shall not receive compensation at a rate
which is (1) in excess of the average rate of com-
pensation paid in the area where the program is car-
ried out to a substantial number of the persons pro-
viding substantially comparable services, or in
excess of the average rate of compensation paid to a
substantial number of the persons providing substan-
tially comparable services in the area of the person's
immediately preceding employment, whichever is
higher; or (2) less than the minimum wage rate pre-
scribed in Section 6(al) of the Fair Labor Standards
Act of 1938.
The second part of this statement-that the Fair Labor
Standards Act minimum wage must be paid-applies to
all employers in this Country, and is certainly no bar to
' In his brief counsel for the Respondent relies heavily on two deci-
sions involving other Head Start Programs in cities other than Chilli-
cothe These are no more than preliminary findings made by Regional
Offices before those proceedings will be brought to the Board for final
conclusion Board law or interpretation of this statute is made by the
Board itself, and the appellate courts It is not finalized by the diversified
opinions of this or that Regional Director
collective bargaining. And the first part, which sets a
ceiling to wages, is no different from any other economic
force which limits an employer's funds to be given to its
employees. Between the top and bottom there is much
room for "meaningful" bargaining, as Acton also admit-
ted as a witness.
Another document, dated 1985, also issued to Head
Start grantees of Federal funds, contains the following
statement:
To provide salary and fringe benfit increases to
Head Start personnel. Salary increases which move
Head Start salaries closer to wages paid for compa-
rable work in the community shall be made to the
extent funds are available. Grantees should use their
own personnel policies, wage scales and wage com-
parability studies to access and determine the most
equitable and effective way of distributing wage in-
creases among staff. Some grantees may need to
provide relatively greater increases to certain cate-
gories of staff or certain individuals in order to
achieve a rational salary scale, or to move closer to
wage comparability. Other grantees, whose wage
scales and policies already result in the most appro-
priate distribution of salaries among staff, may elect
to provide an equal percentage increase in salary to
all staff. Each grantee is expected to use at least 75
percent of its cost-of-living award for salary and
fringe benefit increases.
In using these funds we urge grantees to consider
providing pay increases, beyond what they would
otherwise receive, to teaching staff and home visi-
tors who have earned a recognized early childhood
credential, such as a CDA, a degree in early child-
hood or State required early childhood permit. We
also urge grantees to review the fringe benefits they
provide employees and consider increasing benefits
where they are inadequate. This would apply espe-
cially to medical insurance. Although Federal Reg-
ulations do not require specific levels of coverage,
we expect all grantees to provide adequate protec-
tion to their employees in this important area.
Funds in this category may also be used to meet
any requirements for increased employee contribu-
tions to Social Security, workers' compensation and
other legally mandated increases in fringe benefits
and similar employer costs.
When the employer is free to use its "own personnel
policies" to determine "wage scale" and to "determine
the most equitable and effective way of distributing wage
increases among staff," can there be any question but
that it is free to engage in absolute-not just meaning-
ful-collective bargaining? I think not.
Still another information memorandum from the De-
partment of Health and Human Resources reads as fol-
lows:
Grantees and delegates should use their own per-
sonnel policies, wage scale and wage comparability
studies to access and determine the most equitable
and effective way of distributing wage increases
ROSS COUNTY COMMUNITY ACTION COMMISSION
among staff. Some grantees may need to provide
relatively greater increases to certain categories of
staff or certain individuals in order to achieve a ra-
tional salary scale or to move closer to wage com-
parability. Other grantees, whose wage scales and
policies already result in the most appropriate distri-
bution of salaries on staff, may elect to provide an
equal percentage increase in salary to all staff.
In using these funds, we urge grantees to consid-
er providing pay increases, beyond what they
would otherwise receive, to teaching staff and home
visitors who have earned a recognized early child-
hood credential, such as a CDA, a degree in early
or a state required early childhood permit. We also
urge grantees to reveiw the fringe benefits they pro-
vide employees and consider increasing benefits
where they are inadequate. This would apply espe-
cially to health insurance. Although Federal regula-
tions do not require specific levels of courage, we
expect all grantees to provide adequate protection
to their employees in this important area . Funds in
this category may also be used to meet any require-
ments for increased employer contributions to
Social Security, Workers' Compensation and other
legally mandated increases in fringe benefits and
similar employer costs.
I do not deem it nesessary to belabor this matter fur-
ther. That the above language leaves the immediate em-
ployer , receiving Federal grant funds , to use its own dis-
cretion as how and where to give raises, or to improve
fringe benefits, is as clear as day. And that matters of
pay and fringe benefits enjoyed go to the heart of the
collective-bargaining process and therefore mean "mean-
ingful" bargaining, needs no further comment from me.
And finally, that I read the foregoing documents cor-
rectly is amply proved by the following testimony of
Acton on cross-examination after she had identified each
of the Respondent's exhibits, and after she said not one
of them have anything to do with labor relations. The
following is from her testimony:
Q. You do handle the labor relations, do you not?
A. Yes, I do.
Q. You work with the employees, do you not?
A. Yes, I do.
Q. You determine what is a reasonable wage in
your opinion when you make up your budget, do
you not? .. .
A. Yes, I do.
Q. And you take it up with your policy commit-
tee, is that right?
A. That's true.
Q. And then it goes to the budget that you make
up, is that right?
A. That's true.
Q. And you send that budget to the agency in
Chicago.
A Yes.
Q. And they approve it, is that correct? Within
the limits of the money they told you could have?
A. That is true.
483
Q. And you make the recommendation, do you
not? You tell them what it is that you think that
they should approve and why. Is that correct?
A. I recommend the charges in the application,
yes.
Q. And you recommend the wages that be paid
to certain people9
A. Yes.
Q. You can recommend that Jill be paid more
than Elsie or whatever . If you have a good reason
for that you can recommend that.
A. I can justify it, I suppose.
Q. You can justify it, and you are the profession-
al?
A. Yes.
Q. You know more than they do. Is it not a fact
that they generally accept your recommendations?
Before you answer I am going to ask you, when
they did not if they did not.
A. Concerning a budget, yes they usually go
along with my recommendations.
Q. If you had a representative of your employees
instead of having just your Policy Council and your
Board of Directors, you had another, you had
someone who represented your employees, who
wanted to discuss with you these wages. Is there
any reason why you could not do that?
A. I could talk to them, yes.
Q. And if the two of you agreed just like you
could recommend that to the Policy Council, could
you not?
A. I could recommend it to them.
Q. And you could put it in the budget just like
you always do and send it to the Chicago, could
you not?
A. Yes.
Q. And the Chicago has not changed your salary
recommendations, have they, in the years you have
been there?
A. No.
At one point the Federal Goverment authorized a 3-
1/2-percent raise in wages. The Respondent relies
strongly on this as proving it was outsiders who set the
wages, not the named Respondent . Again , from Acton's
testimony about the 3-1/2-percent authorization:
Q. . . . You were not told this document or any
others that 3-1/2 percent had to go to wages, it
could go to other places . If your wages were higher
than some others you put it into other programs,
could you not?
A. Yes.
I conclude from all this that the Respondent is free to
engage in meaningful bargaining with the Union, and
that its refusal to recognize the Union as exclusive repre-
sentative of its employees was a violation of Section
8(a)(5) of the Act.
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE REMEDY
It having been found that the Respondent has violated
Section 8(a)(5) and (1) of the Act by unlawfully refusing
to bargain with the Union , it must be ordered to cease
and desist from such conduct , and to bargain on request
with the Union and, if an understanding is reached, to
embody the understanding in a signed agreement. The
Respondent must also be ordered to cease and desist
from in any other manner violating the statue.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section I,
above, occurring in connection with the operations of
the Respondent described in section I, above have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Ross County Community Action Commission,
Inc.-Head Start Program is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. Ohio Association of Public School Employees of
the American Federation of State , County and Municipal
Employees , AFL-CIO is a labor oraganization within
the meaning of Section 2(5) of the Act.
3. By refusing to bargain with Ohio Association of
Public School Employees of the American Federation of
State, County and Municipal Employees , AFL-CIO the
Respondent has violated and is violating Section 8(a)(5)
and (1) of the Act.
4. The above-described unfair labor pratices affect
commerce within - the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Ross County Community Action
Commission, Inc.-Head Start Program, Chillicothe,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Ohio Association of
Public School Employees of the American Federation of
State, County and Municipal Employees, AFL-CIO as
the exclusive bargaining representative of the employees
in the bargaining unit.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed wavied for all pur-
poses.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and,
if an understanding is reached, embody such understand-
ing in a signed agreement. The appropriate unit is as fol-
lows:
All full time and regular part time employees em-
ployed in the Employer's Head Start Program at its
Ross County, Ohio location, including all teachers,
assistant teachers, bus drivers, cooks and janitors,
but excluding all office clerical employees and all
professional employees, guards and supervisors as
defined in the Act.
(b) Post at its place of business in Chillicothe, Ohio,
copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by its author-
ized representatives, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by it to ensure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Ohio Association
of Public School Employees of the American Federation
of State, County and Municipal Employees, AFL-CIO
as the exclusive representative of the employees in the
bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit . The bargaining unit is:
ROSS COUNTY COMMUNITY ACTION COMMISSION 485
All full time and regular part time employees em- professional employees, guards and supervisors as
ployed in the Employer 's Head Start Program at its defined in the Act.
Ross County , Ohio location , including all teachers,
assistant teachers , bus drivers , cooks and janitors, Ross COUNTY COMMUNITY ACTION COM-
but excluding all office clerical employees and all MISSION, INC.-HEAD START PROGRAM