Salt & Pepper Nursery School & Kindergraten No. 2

National Labor Relations Board - Board Decisions

Oct 15, 1976

226 N.L.R.B. 423 (N.L.R.B. 1976)

SALT & PEPPER NURSERY SCHOOL
Salt & Pepper Nursery School & Kindergarten No. 2
and Local 79, Service Employees International
Union, AFL-CIO, Petitioner. Case 7-RC-13039
October 15, 1976
ORDER DENYING MOTION
On March 8, 1976, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding,' in which the Board dismissed the
petition filed herein.
Thereafter, on March 31, 1976, the Petitioner filed
a Motion- for Reconsideration requesting that the
Board reconsider its decision and reinstate the peti-
tion.
The Board has considered the matter and is of the
view that the motion has raised no issues which
would warrant reversal or modification of its prior
decision. Accordingly, we shall deny the motion as
lacking in merit.
Our dissenting colleague's statement that it is "cru-
elly unfair" for the Board to assert jurisdiction over
an industry, leave the actual standard to future deter-
mination, and then apply it retroactively, erroneously
implies that in Young World, Inc., 216 NLRB 392
(1975), the case relied on by the Petitioner, the Board
in some way unfairly encouraged unions to organize
day care centers which met the standard discussed in
that case for nursing homes. Were this so, we would
be inclined to agree with his characterization of .the
Board's action. The facts, however, lend no support
to such an accusation. The truth of the matter is that
the Board did not indicate in any way that day care
centers whose annual earnings amounted to $100,000
would be covered by the Act. In that case, in which
our dissenting colleague joined, the Board noted that
the Young World employer had projected revenues
for the year in question exceeding $1 million and
substantial out-of-state purchases. The Board, on
these facts, asserted jurisdiction only because the em-
ployer met every discretionary standard applied to
that date. The Board, including our dissenting col-
league, most emphatically stated that "we are not
prepared at this time to establish a jurisdictional
standard for day care centers as a class." Thus, the
Union herein could not have relied on the Board's
decision in that case because no jurisdictional stan-
dard was established, and, the only revenue figure
the Union could have reasonably relied on was $1
million.
Our dissenting colleague also appears to be saying
that since the employer in Young World urged the
1 222 NLRB 1295, Member Fanning dissenting.
423
application of the $100,000 nursing home standard
(which of course was rejected by us and our dissent-
ing colleague in that case) the Board is in some way
bound to provide the. protection of the Act to those
employees who have relied on the employer's repre-
sentation in that case and have engaged elsewhere in
organizational activity. If this is our colleague's posi-
tion, we must say, in all candor, that it borders on the
absurd. We do not agree with his apparent position
that the mere presentation of a position by an em-
ployer is sufficient to establish Board precedent. The
Board is in no way required to provide the protection
of the Act- because of the reliance by others on a
position taken by a party in a representation pro-
ceeding.
In his dissent, our colleague bemoans the fact that
the Board has in this case tentatively set a jurisdic-
tional standard of $250,000, and alludes to some sta-
tistics which show that such a standard will leave
some employees without the protection of the Act.
We note, however, that even if the $100,000 standard
(urged by our colleague) were adopted, the same fig-
ures relied on by him tend to show that 65 to 75
percent of day care centers would not be covered by
the Act. Query whether our colleague is being "cruel-
ly unfair" to those employees of the centers which do
not gross $100,000 anually.
ORDER
Based upon the foregoing, the National Labor Re-
lations Board hereby affirms its order issued in this
proceeding on March 8, 1976.
MEMBER FANNING, dissenting:
For reasons stated in my dissenting opinion, I
would have asserted jurisdiction in this case. Accord-
ingly, I would grant the Motion for Reconsideration.
I note the patently valid argument of the Petitioner
that the Board, having asserted jurisdiction over a
day care center meeting all Board jurisdictional stan-
dards-Young World, Inc., 216 NLRB 392 (1975),
where the employer urged application of the
$100,000 nursing home standard-was bound to en-
courage organization in cases of this sort having an
income in excess of $100,000. If, in fact, employees
have been discharged as a result of this campaign,
they are by the action of my colleagues denied access
to Board processes by the unduly excessive $250,000
standard which my colleagues have even now only
tentatively set. I am inclined to agree with Petitioner
that it is "cruelly unfair" for the Board to assert juris-
diction over an industry, leave the actual standard to
future determination, and then apply it retroactively.
My colleagues astound me with their "could-rea-
sonably-have-relied-upon" argument. In their view
226 NLRB No. 55
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no union could or would reasonably have relied on
the Young World,-Inc., decision to undertake organi-
zation unless the child care facility whose employees
it sought to represent similarly grossed $ 1 million.
This analysis seems quite unreasonable to me. That
Board decision specifically said that "every discre-
tionary jurisdictional standard the Board has applied
to date" was met by Young World, thus including the
lowest standard of all-the existing $100,000 for
nursing homes urged by Young World as appropriate
for the child care field. How then say that $100,000-
the existing standard in an industry more closely
akin to child care than any other-could not reason-
ably have been anticipated, if not "relied upon"? By
this approach they attempt to obscure the obvious
relevance of the nursing home standard they refused
to apply, achieving this obscurity to a considerable
extent by emphasizing that no party's contention can
in any way bind the Board?
But let none of us lose sight of the point truly im-
portant here-that a rational standard promptly set
is a "must" once the Board has asserted jurisdiction
over an industry for the first time based on an em-
ployer meeting every existing jurisdictional standard.
The lowest is then a possibility and the allegations
here made demonstrate the need to avoid raising
false hopes of Section 7 rights "in the offing."
2 MY colleagues also note what seems to them a lack of concern on my
part that $100,000 may not be low enough as a standard, thus "cruel" to
those not covered, as it appears to cover only 25 to 35 percent of the child
care industry I would note that a 28-percent coverage of "professional
metropolitan and major orchestras" did not deter the Board in setting the
standard for symphony orchestras