The Salvation Army

National Labor Relations Board - Board Decisions

Jan 18, 1980

247 N.L.R.B. 413 (N.L.R.B. 1980)

THE SALVATION ARMY
The Salvation Army of Massachusetts Dorchester
Day Care Center and District 65, Distributive
Workers of America, Petitioner. Case I-RC-
16209
January 18, 1980
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to an election
held on April 20, 1979,' and the Acting Regional
Director's report recommending disposition of same.
The Board has reviewed the record in light of the
exceptions and briefs and hereby adopts the Acting
Regional Director's findings, as modified herein, and
recommendations.
The Employer's Objection 22 alleges that the Board
lacks jurisdiction over it in view of the Supreme
Court's decision in N.L.R.B. v. The Catholic Bishop of
Chicago, 440 U.S. 490 (1979), wherein the Court held
that the Act did not authorize the Board to assert
jurisdiction over "teachers in church-operated
schools."'
The Acting Regional Director, noting that the
Employer had entered into a Stipulation for Certifica-
tion Upon Consent Election which specified that it
was engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Employer
met the monetary standards established by the Board
for exercise of its discretionary jurisdiction over day
care centers, found that jurisdiction was properly
asserted. The Acting Regional Director further found
that to void the stipulation the Employer had to
proffer newly discovered or previously unavailable
evidence, and that it had not done so.4 Accordingly,
the Acting Regional Director found the Employer's
stipulation that it is an employer engaged in commerce
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: nine for, and three against, the
Petitioner; there were no challenged ballots.
The Acting Regional Director found, and we agree for the reasons stated
by him, that the Employer's Objection 1, alleging that the Petitioner
distributed a campaign leaflet which made substantial and material misrepre-
sentations, is without merit.
within the meaning of the Act binding on it and
recommended that the objection be overruled.
However, the Employer has raised the question of
statutory rather than discretionary jurisdiction and,
were we to find that this case involved "teachers in
church-operated schools" within the meaning of The
Catholic Bishop of Chicago. the stipulation would be
contrary to the Act, and the Board could not honor it.
See F. M. Reeves & Sons, Inc., 114 NLRB 1243, fn. 2
(1955); Central Cigar & Tobacco Co., 112 NLRB
1094, 1096 (1955). See also East Newark Realty
Corporation, 115 NLRB 483 (1956), where the Board
ruled that a stipulation "cannot foreclose inquiry by
the Board to determine whether the assertion of
jurisdiction in a given case would be contrary to the
Board's jurisdictional policy."
The Board has held that day care centers are
primarily concerned with custodial care of young
children, and only secondarily concerned with educa-
tion.' We, therefore, find that the principles operative
in The Catholic Bishop of Chicago do not preclude our
assertion of jurisdiction here. Accordingly, we adopt
the Acting Regional Director's recommendation that
the objection to the Board's jurisdiction be overruled,
and we shall therefore certify the Petitioner.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for District 65, Distributive
Workers of America, and that, pursuant to Section
9(a) of the National Labor Relations Act, as amended,
said labor organization is the exclusive representative
of all the employees in the following appropriate unit
for the purpose of collective bargaining in respect to
rates of pay, wages, hours of employment, or other
terms and conditions of employment:
All teachers, the janitor, cook, and social worker
employed by the Employer at its 26 Wales Street,
Dorchester, Massachusetts location, but exclud-
ing all other employees, guards, the assistant
director, the educational coordinator, managerial
employees and supervisors as defined in the Act.
'440 U.S. at 500.
' Citing Charles T Joyce d/b/a International Kitchens. 189 NLRB 79
(1971).
' Salt d Pepper Nursery School d Kindergarten Na 2. 222 NLRB 1295
(1976); Young World. Inc.. 216 NLRB 520, 521 (1975); Methodist Children's
Home of Missouri, 209 NLRB 211 (1974); cf. Luthern Welfare Services of
Illinois. 216 NLRB 518, 519(1975).
247 NLRB No. 62
413