Wisconsin Education Association Council

National Labor Relations Board - Board Decisions

Jan 27, 1989

292 N.L.R.B. 702 (N.L.R.B. 1989)

702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wisconsin Education Association Council and
United Staff Union Petitioner . Cases 30-RC-
4162, 30-RC-4163, 30-UC-198, 30-UC-199,
and 30-UC-209
January 27, 1989
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 13, 1986, the Regional Director for
Region 30 issued a Decision and Order and Direc-
tion of Elections' in which he found that the Wis-
consin Education Association Council (WEAC),
the named Employer, and the Intervenors, various
"local option" Uniservs (an administrative unit of
NEA), are a single employer or, alternatively, joint
employers of the petitioned-for employees in Cases
30-RC-4162 and 30-RC-4163.2 The Regional Di-
rector also determined that there exists a communi-
ty of interest between the petitioned-for local
option Uniserv employees and the employees in the
existing state option Uniserv-WEAC bargaining
units. The Regional Director directed self-determi-
nation elections among two voting groups of local
option Uniserv employees: Unit A includes all Uni-
serv directors employed by local option Uniservs
affiliated with WEAC, the assistant executive sec-
retary of Racine Education Association, the assist-
ant executive director of Madison Teachers, Inc.,
industrial relations clerks, and law clerks employed
by WEAC. Unit B includes all associate staff em-
ployees (essentially clerical support staff) employed
by local option Uniservs affiliated with WEAC.
Those employees would be permitted to vote on
whether they wish to be represented by the USU
within the existing "professional" employee unit
and the "associate staff" employee unit, respective-
ly, of the state option Uniservs and WEAC staffs.3
1 The Regional Director dismissed the three UC petitions. WEAC filed
the petition in Case 30-UC-209, and the Petitioner filed the petitions in
Cases 30-UC-198 and 30-UC-199.
2 In essence , the petitions seek elections to determine whether the un-
represented "professional" and "associate staff" employees of local option
Uniservs wish to be represented by the Petitioner (USU) along with em-
ployees in existing "professional" and "associate staff" units. The USU
presently represents one bargaining unit of "professional" employees
working on the WEAC staff and in "state option" Uniservs, and a second
bargaining unit of "associate " employees on the WEAC staff and in
"state option" Uniservs. "Local option" and "state option" Uniservs are
described in the "Background" section, infra.
3 Based on his finding that neither the state option nor the local option
employees described as "professional " meets the definition of "profession-
al" within the meaning of Sec. 2(12) of the Act, the Regional Director
further directed a separate election among the staff attorneys employed
by WEAC, who are currently included within the existing "professional"
unit and who do meet the statutory definition of professional, to decide
whether they wish to continue to be represented in the same unit with
nonprofessional employees.
WEAC and the local option Uniservs each filed
timely requests for review of the Regional Direc-
tor's decision .4 The USU filed an opposition to the
WEAC request. By telegraphic order dated July 8,
1986, the Board granted review of WEAC's and
the Intervenors ' requests . Thereafter, WEAC and
the USU filed briefs on review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On consideration of the entire record , the Board
makes the following findings.
Background
WEAC is a labor organization representing
school teachers and other school employees in the
State of Wisconsin. It is affiliated with the National
Education Association (NEA) and has approxi-
mately 425 local affiliates.5 Prior to 1970, WEAC
provided direct assistance to its affiliated locals by
sending its own staff people to various locals
throughout the State, as needed, to help with nego-
tiations and contract administration. In 1970, NEA
initiated the Uniserv program, by which locals-
either individually, in the case of large, urban
locals, or in groups of several smaller locals-
formed separate administrative structures, called
Uniservs, to provide these services directly to the
locals and their members. (A local association must
meet a 1200-member minimum to become a sepa-
rate Uniserv unit.) This decentralization afforded
the membership more readily accessible, permanent
business agents and support staff. Both NEA and
WEAC continue to serve as resources to the local
associations by providing information, funds, train-
ing, research, and other support to help them fulfill
their representational functions. However, since
1970, this support has been channeled through the
Uniserv staffs, which, in turn, deliver the services
to the locals and members.
With one exception, each of the Uniservs is an
unincorporated association,s having its own consti-
tution, bylaws, board of directors, and officers.
Each Uniserv has a director (who functions essen-
tially as a business agent) as well as clerical support
staff. In the case of the four large urban locals-
Madison, Green Bay, Racine, and Kenosha-no
structural changes were necessary for them to
° The requests for review are limited to the Regional Director's dispo-
sition of the issues raised by the RC petitions. WEAC did not seek
review of the dismissal of its petition in Case 30-UC-209, and the USU
withdrew its request for review of the dismissals of its UC petitions.
5 NEA, WEAC, and their local affiliates are under a system of unified
membership; that is, by joining one of the organizations, an employee
must also become a member of the other two. This overall union organi-
zation is called the United Teaching Profession (UTP).
6 One Uniserv, Madison Teachers, Inc., is incorporated.
292 NLRB No. 68
WISCONSIN EDUCATION ASSN
become Uniservs The smaller locals, on the other
hand, were required to aggregate into Uniserv
councils to reach the 1200 member threshold to
become a separate Uniserv 7
By 1974 nearly all the locals were organized into
Uniservs and WEAC had disbanded its field staff,
which had previously been responsible for servic-
ing the locals and the membership By the close of
the hearing in this case, only two locals, Monona
Grove and Eau Claire, had not joined a Uniserv
WEAC placed Monona Grove on a year's proba
tion in 1974 because of its failure to join the pro-
gram, but no further action has been taken despite
Monona Grove's continued independence from the
Uniserv system 8 Eau Claire, by agreement with
WEAC, has been exempted from participating in
the Uniserv program WEAC, therefore, provides
services directly to these two locals
As the Uniserv program developed, there was
disagreement as to whether the Uniserv staff
should be employed by WEAC or by the Uniservs
themselves This resulted in the creation of two
types of Uniservs the "state option," an arrange-
ment under which WEAC tacitly employs the Uni-
serv staff, and the "local option," in which the
Uniserv council of the Uniserv unit (or the local
association governing body of the individual urban
units) has effectively acted as the employer Of the
30 total Uniservs, 27 are local option, including all
4 of the urban Uniservs 11 It is the employees at
these 27 local option Uniservs who are at issue in
this proceeding 10
7 Most of the composite Umservs were established by mutual consent
of the locals involved If disputes occurred WEAC set up arbitration
panels composed of disinterested Umserv unit chairpersons who made the
final decision as to which Uniserv each local joined
8 WEAC bylaws permit it to terminate Monona Grove s WEAC mem
bership for failing to join a Uniserv but no action in this regard has been
taken
8 The local option Uniservs are as follows Bayland Teachers United
Capital Area Uniserv North Capital Area Uniserv South Cedar Lake
United Educators Central Wisconsin Uniserv Council North Central
Wisconsin Uniserv Council South Central Wisconsin Uniserv Council
West Chequamegon United Teachers Coulee Region United Educators
Green Bay Education Association Kenosha Education Association
Kettle Moraine Uniserv Council Lakewood Uniserv Council Madison
Teachers Inc North Shore United Educators Northwest United Educa
tors Racine Education Association Rock Valley United Teachers South
Central United Educators Southwest Teachers United Tnwauk Uniserv
Council United Northeast Educators WEAC Uniserv Council No 10
WEAC Uniserv Council No 18 WEAC Uniserv Council No 26/SLUE
West Central Education Association and West Suburban Council
The three state option Uniservs include Council 21 Winnebagoland
Educational Staff Council and Winnebagoland South The profession
als and associates employed by these Uniservs compose along with
WEAC staff employees the respective USU represented units
10 This includes 37 Uniserv directors or assistant directors and 36 asso
ciate staff employees There are four directors/assistants and three associ
ate staff employees at the state option Uniservs
Issues
703
In support of its representation petitions, the
USU contends that WEAC is the sole employer of
all petitioned for employees and that elections
should be held to determine whether they wish to
be represented by the USU within the existing so-
called professional and associate staff units WEAC
and the Intervenors contend, on the other hand,
that each individual local option Uniserv alone em-
ploys these employees and further, even if a joint
employer relationship were found between the Uni-
servs and WEAC, no systemwide bargaining units
would be appropriate in the absence of an employ
ment relationship among the various individual
local option Uniservs
The Regional Director found that WEAC and
the local option Uniservs constitute a single em-
ployer based on what he concluded to be their
"high degree of interrelation of operations, partial
common management, partial common control of
labor relations, common accountability to mem-
bers, and the absence of an arms-length relationship
" In the alternative, he found that even if
there is insufficient common control of labor rela
tions to warrant a finding of single employer status,
WEAC and the local option Uniservs jointly
employ the petitioned-for employees In addition,
he concluded that there is a sufficient community
of interest between the employees at the existing
state option bargaining units and the employees in
the local option Uniservs to make two overall bar
gaining units ("professional" and "associate staff")
appropriate I I
Based on our review of the record, we agree
with the Regional Director's factual findings How
ever, we find that the facts do not support his con
clusions and therefore reverse his determinations
on single-employer and joint employer status and
find the local option Uniservs individually are the
employers of employees at each location 12
Relationship Between WEAC and the
Uniservs
WEAC and the Uniservs-state and local option
alike-encourage a public perception of mutual co-
operation and coordination of efforts in order to
enhance the goal of the United Teaching Profes-
sion of providing superior representation for its
membership In this regard, the parent organiza
1 i Some of the factors the Regional Director cited are the interrelation
of operations the employees frequent contacts with one another the
similarity of job skills and duties the generally similar rates of pay and
working conditions and the practice of sharing employees among various
Uniservs on a cooperative as needed basis
12 Our conclusions on these issues render it unnecessary to reach the
Regional Directors unit findings
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion , NEA, publishes a handbook that includes the
names , addresses , and telephone numbers of every
Uniserv in the United States, along with the name
of its director. Similarly, WEAC's handbook and
directory contain information about every Uniserv
in Wisconsin.13 WEAC cites, through its newslet-
ter and organizing materials , the accomplishments
of various Uniservs as benefits of associating with
the organization. In this way, the upper levels of
the organization lend their greater visibility to the
Uniservs and promote overall growth of the pro-
fessional association.
This relationship is largely the result of the fact
that the Uniserv system grew out of the WEAC
field system, in which the centrally based WEAC
used its own personnel to carry out the same func-
tions the Uniserv staffs now perform. The Uniserv
system eliminated the need for central control and
dispatching of employees throughout the State.
Day-to-day administration is more efficiently han-
dled on a smaller scale by this separate Uniserv
level, created especially for that purpose.
In order to establish some regularity and struc-
ture for their relationships, NEA, WEAC, and the
Uniservs (the latter individually) enter into what
are known as tripartite agreements , which, in all
but 2 of the 22 in evidence, consist of copies of a
standard form with names and dollar figures filled
in. The standard tripartite agreement, in spelling
out the rights and obligations of the parties, speci-
fies the amount of funding the contracting Uniserv
will receive from both NEA and WEAC and, in
turn, requires the Uniserv to submit a budget for
inclusion within the agreement; and funds received
by the Uniserv tinder that agreement must be spent
in conformance with the submitted budget, with
variations exceeding 10 percent of the specified
budgeted amounts being subject to approval by
WEAC and NEA. (In practice, however, the Uni-
servs do not submit budget changes to WEAC and
NEA.) In addition to funding and budget matters,
the standard tripartite agreement requires the Uni-
serv to observe WEAC/Uniserv guidelines,' 4 and
provides that the composition of the Uniserv unit is
subject to negotiations among the three parties;
that Uniserv professional staff cannot be hired
without the approval of WEAC and NEA; that
written employment contracts must be executed be-
tween the Uniserv and its professional staff mem-
bers; and that employment contracts are subject to
the approval of WEAC and NEA. However,
WEAC and NEA have never failed to approve a
13 Uniservs are not identified in any of the listings as being state option
or local option.
14 The WEAC/Uniserv guidelines are a second type of regulation ap-
plying to the relationship between the parties.
Uniserv's hiring selection or its employment con-
tracts. The standard agreement also allows NEA to
borrow each Uniserv professional for up to 20 days
a year for training or other purposes, with NEA
paying the costs and determining the content of the
training. (The Uniservs may, however, consult
with NEA over content.) Finally, this agreement
requires the Uniserv staff to abide by the state and
local leadership's decisions as to membership serv-
ices, and to emphasize to the public the Uniserv's
role in carrying out NEA's overall program.',
The WEAC/Uniserv guidelines set forth the
manner in which the Uniservs will be governed.
Under these guidelines , the four large urban Uni-
servs are headed by an elected executive board or
committee, with the local president acting as liai-
son between the board and the staff. In the com-
posite Uniservs, policy is set by an elected council
consisting of members from each constituent local,
with an elected chairperson serving as liaison with
the staff. These guidelines also provide for the em-
ployment by the Uniserv of at least 1 staff person
for every 3000 members. Job descriptions formulat-
ed by local option Uniservs, WEAC, and NEA
state that the Uniserv staff members must partici-
pate in four NEA/WEAC activities a year, up to
20 days, and that these activities will be paid for by
whichever of the two (NEA or WEAC) is spon-
soring the activity. As to hiring, the guidelines
state that WEAC and NEA are to submit a list of
candidates to the Uniserv council, which will inter-
view and select the person to be hired.', Employ-
ment contracts covering terms and conditions of
employment are then negotiated between the em-
ployee (or the employee's collective-bargaining
representative) and the Uniserv. Nothing in the em-
ployment contract may conflict with the tripartite
agreement. The guidelines permit the Uniserv to
initiate suspensions, discharges, and nonrenewals of
employees' contracts, as well as to conduct annual
evaluations of job performance. Neither NEA nor
WEAC is responsible for guaranteeing the contin-
ued employment of the Uniserv staff. In addition, if
any staff person of a local option Uniserv acts on
behalf of any competitor of WEAC, the Uniserv
15 The two tripartite agreements in evidence that do not conform to
the standard form involve the Green Bay Education Association (Green
Bay) and Madison Teachers, Inc. (MTI) as the contracting Uniservs.
Green Bay's agreement provides that it is not required to offer staff as-
sistance to either WEAC or NEA and that it is not eligible to receive
assistance from other Uniservs. MTIs includes a mediated agreement be-
tween itself and WEAC that grants MTI the autonomy to establish its
own policies, decide staffing needs , and retain its own legal counsel. All
other provisions in these nonstandard agreements are the same as those
described above.
16 The guidelines also encourage the Uniserv council itself to submit
names to NEA and WEAC for their inclusion on the list of potential em-
ployment candidates from which the council will choose.
WISCONSIN EDUCATION ASSN 705
employing that staff member could lose WEAC
funding for up to a year The guidelines also pre-
scribe certain equal opportunity hiring and employ-
ment standards
Guidelines applicable only to state option Uni-
servs provide that their staffs are WEAC employ-
ees and that hiring, transfers, and terminations are
to be effected through agreement of both WEAC
and the Uniserv s board of directors The Uniserv
board directs day to-day activities, determines spe-
cial needs for staff activity, provides information
on which to base evaluations of staff performance,
and may keep its staff from being assigned projects
outside the Uniserv, except as provided for other-
wise in the tripartite agreement WEAC is respon
sible for all state Uniserv expenses, including staff
salaries and fringe benefits, and WEAC receives an
NEA subsidy to offset these costs in addition to
dues from the Uniserv's locals Each Uniserv estab-
lishes its own budget, exclusive of salaries, fringe
benefits, and expenses WEAC provides services to
all state option Uniservs in the following areas
staff personnel and labor relations, employer tax fil-
ings, unemployment compensation, bookkeeping,
audits, and Uniserv agreement negotiations and ad-
ministration
Finally, four Uniservs are parties to a third type
of special, separate agreement, called a mediated
agreement, which details individualized treatment
of these Uniservs All the mediated agreements re
sulted from WEAC's efforts to prevent these Uni-
servs from disaffiliating from WEAC Three urban
Uniservs, Madison, Green Bay, and Racine, are
permitted under their mediated agreements to
retain their own legal counsel at WEAC's expense,
rather than use WEAC staff attorneys The mediat
ed agreement with the fourth of these Uniservs,
Council 10 permits that Uniserv to choose on a
case by-case basis, whether to use WEAC's attor
neys or private counsel to handle arbitrations and
other matters normally handled by the Uniserv di
rector, allowing the director to devote more time
to other matters
Governance
All Uniservs, state and local option, have their
own constitutions and bylaws These documents
commonly provide for a board of directors, elected
officers, and a representative assembly The board
and/or the assembly sets policy that is then carried
out by the board and officers WEAC has no role
in Uniserv policymaking and takes no part in the
selection of Uniserv boards, assemblies, or officers
WEAC has its own constitution and bylaws Its
representative assembly, composed of individuals
from each local association, meets yearly and sets
policy, votes on a budget, and elects WEAC offi
cers The board has 46 members, 34 of whom are
from Uniservs, and it convenes several times
throughout the year, setting policy when the as
sembly is not in session The board hires an execu-
tive secretary who serves as WEAC s chief execu
tive and highest level staff supervisor Most Uni
serv representatives to the WEAC board are, by
constitutional designation, also members of their
own Uniserv board of directors In this way, one
individual serves a policymaking role on two
levels
Funding and Budget
Uniservs receive funding from dues, WEAC and
NEA subsidies, a UTP fund, and an extra WEAC
subsidy to encourage the hiring of minority and
women directors The chief source of Uniserv
funds is dues, set individually (as are the Uniserv
budgets) by the Uniserv governing body Less than
half of a Uniserv's budget is derived from the NEA
and WEAC subsidies, under the tripartite agree-
ment At the time of the hearing the basic WEAC
subsidy was $7 per member, while the NEA subsi
dy was $12,200 per 1200 Uniserv members The
UTP subsidy, available to Uniservs who choose to
apply for such funds, and who are thereby required
to conform to extensive operational guidelines deal
ing with staffing, program, and expenditures, pro
vides additional revenue for those Uniservs who
are willing to comply with its eligibility restric-
tions 17 And, finally, there is a $2000 per-year
bonus for Uniservs that have a minority or woman
director This bonus extends only for that director's
first few years on the job
WEAC's budget is prepared by its board, pres4
dent, and executive secretary and approved by its
representative assembly During the most recent
complete school year prior to the hearing, WEAC
spent 12 7 percent of its total budget on Uniserv
subsidies
Uniservs' Business Management
State and local option Uniservs alike provide for
their own office space and equipment The Uni
servs individually decide, without WEAC input,
whether to rent or buy office space, however,
WEAC will help Uniservs acquire office space if
requested For example, Uniservs that own their
own buildings generally form a building corpora
tion as the ownership entity, and WEAC offers
17 The criteria for eligibility are established by a WEAC task force
composed of representatives from each Uniserv Once a Uniserv is grant
ed a UTP subsidy it is free to spend it in any way it chooses The record
reveals that only 10 Umservs applied for and received this additional rev
enue
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
them model documents necessary for this purpose
In addition, WEAC has helped arrange financing
for Uniservs to purchase their own facilities
Tax returns and IRS forms are filed by local
option Uniservs themselves, but WEAC handles
these matters for the state option Uniservs Most of
the local option Uniservs use the same accountant
that WEAC uses, but this is not required State
option Umservs use the WEAC-provided book-
keeping system, which local option Uniservs are
also free to use Twenty three of the local option
units took advantage of this service at the time of
the hearing, but none of the large urban locals did
so Under this arrangement, WEAC keeps separate
accounts for each participating Uniserv, and the
WEAC bookkeeper writes checks at the Uniserv's
direction Free computer services and some paper
is included as part of this service Uniservs pay for
their checks, postage, tax form filings, and audits
They are free to manage their own spending as
they see fit, without WEAC interference, including
making decisions regarding investments and other
money management matters
WEAC has a printshop that provides free labor
to Uniservs choosing to use it Paper is available at
a reduced cost and the Uniservs pay for it as well
as for ink and other materials "I Uniservs may also
participate in WEAC's computer network If a
Uniserv purchases a compatible computer, which it
may do at a reduced rate through an arrangement
between WEAC and an electronics distributor,
WEAC will provide them with free software and a
data base for access to the system
WEAC provides other `reduced rates' benefits
as well, including hotels and car leasing
Labor Relations
WEAC's chief operating officer and administra
tor is the executive secretary He reports to the
board and is responsible for the overall supervision
of the staff The staff is divided into five depart
ments legislative, legal, business services, public
relations/publications/printshop, and collective
bargaining Each department is headed by a super
visor The nonsupervisory WEAC staff, as well as
the employees at the state option Uniservs, are in-
cluded in the existing WEAC/USU professional
and associate bargaining units
The WEAC staff provides services to the Uni-
servs and the membership, including gathering and
disseminating information regarding collective bar-
gaining , research, and coordinating political activi-
ty The duties of the 'professional' and associate
employees in the state option Uniservs are the same
18 Paper is available from WEAC at a reduced price regardless of the
purpose the Uniserv has for it
as their counterparts in the local option Uniservs,
described below
WEAC conducts its own labor relations with the
employees in the existing bargaining units, negotiat
ing agreements through a committee with the USU
on behalf of the professional" and associate"
units Although the negotiating committee includes
some members of the WEAC board who are from
local option Uniservs, there is no evidence that in
dividuals from local option units have any other
role in formulating or effectuating labor policy for
the bargaining unit employees How day to day
labor relations are carried out at the WEAC staff
level is not clearly spelled out in the record
Within the state option Uniservs there are only
two types of employees directors, included in the
"professional" unit, and clerical employees, includ
ed in the "associate" unit Handling of labor rela
tions in the state option units is divided between
WEAC and the elected officers of each Uniserv In
accordance with the WEAC-Uniserv guidelines,
the state option Uniserv employees are hired and
fired by agreement of the Uniserv board of direc
tors and WEAC The guidelines further provide
that while WEAC offers staff personnel relations
services, the state Uniserv boards govern the day-
to-day activities of their staffs Also, the
WEAC/USU collective bargaining agreements
govern the terms and conditions of employment of
state option Uniserv employees The grievance pro
cedure under these agreements provides that the
employee's immediate supervisor considers griev
ances at step 1, the WEAC executive secretary
hears step 2 and either the full WEAC board of
directors or a committee of the board hears step 3
grievances Under the agreements, WEAC regional
coordinators participated in the evaluative and su-
pervisory process" over the state Uniserv staffs,
but were not considered full time supervisors
Whether the state coordinators, who have replaced
the regional coordinators, have assumed these
quasi-supervisory functions is not indicated in the
record The bargaining agreements also provide
that seniority begins from an employee's first date
of employment with either WEAC or the state
Uniserv, whichever is earlier However, WEAC
staff may not bump into state Uniserv jobs or vice
versa in the event of layoff, albeit laid-off employ-
ees from either group are given hiring preference
when vacancies occur at WEAC or the state Uni
serv
Local option Uniservs, like state option ones,
also employ directors and clericals Both the state
and local directors' duties are essentially the same
They include being available to their constituent
locals for consultation, assisting and serving as
WISCONSIN EDUCATION ASSN 707
spokesmen in bargaining, handling "final offer"
mediation/arbitrations, investigating and processing
grievances, training local leaders in negotiations
and grievance handling, processing state represen-
tation and unfair labor practice cases, handling un-
employment compensation hearings, and working
with Uniserv members on committees for political
action, public relations, and membership
There are two classifications of associate em
ployees at all Uniservs secretaries and staff assist-
ants Secretaries perform typical clerical duties, i e ,
receiving visitors, answering the telephone, for
warding messages, opening and sorting mail, sched
uling meetings, paying bills, typing, filing, etc Staff
assistants may also perform some of those clerical
duties, but additionally perform research, prepare
exhibits for mediation arbitration hearings, and
other such independent work
When the local option Uniserv program began,
applicants for Uniserv directors applied with
WEAC's Uniserv coordinator, who screened the
applications and passed them along to the Uniserv
hiring committee The hiring committee, composed
of members of that particular Uniserv, reviewed
the applications, decided whom to interview, and
chose the individual to be hired subsequent to their
interview Although the committees were not
bound to select candidates from the pool referred
from the WEAC coordinator, none were hired
from outside that source As a result of this proc
ess, several WEAC field representatives became
Uniserv directors By the time of the hearing, the
hiring process for directors generally involved the
WEAC state coordinator forwarding applications
to the Uniserv hiring committee, assisting in check-
ing references, formulating questions for inter
views, and possibly being present during the inter-
view itself However the coordinator does not rec-
ommend which candidate to hire, that is left to the
elected leadership of the Uniserv This process is
not rigid and followed invariably, however The
record shows that the Lakewood Uniserv hired a
director without any WEAC participation
WEAC also requires that Uniservs advertise di-
rector positions to women and minorities WEAC
once required a local option Uniserv (under threat
of losing its WEAC subsidy), that had hired a
white male as director, to readvertise the position
in order more effectively to reach potential minori
ty applicants Following readvertisement, the Uni-
serv again hired the same white male A few years
later, the same Uniserv hired an additional director
The WEAC coordinator advised the Uniserv that
it must hire a minority or woman or not be funded
for the position The Uniserv did neither, neverthe-
less, WEAC funded the position
WEAC plays no role in Uniservs' hiring of asso-
ciate staff The practice in hiring associate employ-
ees varies from Uniserv to Uniserv, with some
leaving the task to the directors and others forming
a committee for such purpose
All terms and conditions of employment at local
option Uniservs are set by negotiation between the
Uniserv officials and its employees The negotiation
procedures are set by each Uniserv without
WEAC involvement The only WEAC restrictions
are those imposed through the guidelines, described
above, which mandate that the terms and condi
tions of employment be embodied in a written
agreement WEAC is not a party to the written
agreements, nor does it review or approve their
content 19
Each local option Uniserv decides for itself,
without WEAC input, whether to recognize a bar
gaining representative for its staff employees Of
the employment agreements introduced into evi-
dence, nine between Uniservs and directors, and six
between Uniservs and associate employees are indi
vidually negotiated Eleven directors' agreements
and six associate agreements are between the Uni-
serv and the USU on behalf of employees All
these agreements, however, are signed by the em
ployees individually and not by a union official 20
The employment agreements in evidence are
comprehensive and cover subjects such as job de
scription, pay rates, vacation, holidays, grievance
procedure, and insurance Some follow the
WEAC USU contract format, but each is inde-
pendent and is reached separately through the
mutual assent of the local option Uniserv and the
staff member covered by the agreement
Local option Uniserv personnel are not eligible
to participate in the WEAC-USU retirement
system Instead, the Uniserv contributes an amount
agreed on between itself and the individual em-
ployee into the employee's individual retirement
plan However, the WEAC Insurance Trust, which
provides insurance benefits to WEAC-USU bar-
gaining unit members, is available to cover local
option employees if the employment contract so
provides Where this insurance coverage is includ
ed, WEAC is identified as the nominal employer
19 The only exception to WEAC s nonparticipation in local option
Uniserv negotiations concerned the salary level of a newly hired director
for Central Wisconsin Uniserv Council West in which WEAC s execu
tive secretary recommended a particular amount and the Uniserv press
dent agreed In addition the record indicates that Uniservs applying for
UTP funding who are thereby required to submit to extensive review of
budget items including staff salaries and other compensation may be in
fluenced by the UTP requirements when negotiating with employees
20 Because of this these agreements are not collective bargaining
agreements but individual employment contracts even though they may
have been negotiated with the assistance of a labor organization See
e g Austin Powder Co 201 NLRB 566 (1973)
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In practice, however, representatives of the insurer
communicate directly with the Uniserv rather than
WEAC None of the contracts calls for WEAC
participation during any step of the grievance proc-
ess
Approximately half of the agreements in evi
dence require board approval of the local option
Uniserv board before its director may leave the ge-
ographic boundaries of the Uniserv to perform
NEA or WEAC-requested work This would
permit the Uniserv board to deny its director's
services to NEA despite the tripartite agreement's
provision allowing the NEA to call on the services
of Uniserv professional employees for up to 20
days a year
Finally, most of the agreements specify the
duties of the covered employees Although testimo-
ny establishes that job descriptions may be jointly
produced by the Uniservs' teacher leaders and
WEAC's regional coordinator, the frequency of
this type of combined effort is not established
Directors of local option Uniservs are technical-
ly supervised by the Uniserv president In daily
practice, however, supervision is not close because
the presidents most often visit Uniserv offices after
normal business hours, i e , after their regular
teaching responsibilities are completed Uniserv di
rectors, however, commonly provide the boards of
directors with written monthly reports summariz
mg their daily activities, and although their duties
and responsibilities are set forth in the terms of
their employment contracts, Uniserv directors set
their own work agendas and calendars for accom
plishing these duties Nevertheless, directors must
have their vacation schedules approved by either
the president or the executive committee of the
Uniserv
WEAC has no role in the daily supervision or
direction of directors, whether state or local
option The record reveals one instance when
WEAC desired to ensure a local option Uniserv di
rector's participation in a training session, this ne
cessitated WEAC's appealing to the Uniserv presi
dent to make the assignment to the director The
president agreed to communicate WEAC s request
to the director and the director conducted the ses
sion However, the episode illustrates that WEAC
itself is without authority to direct or assign a Uni-
serv director to perform any task, and that it is up
to the Uniserv governing body to oversee the job
performance of its director
NEA guidelines require each Uniserv to evaluate
its staff Locals within each Uniserv evaluate their
director, without WEAC involvement Despite the
NEA guideline and WEAC's requests, however, at
least one local option Uniserv, Rock Valley United
Teachers, has not enacted procedures for staff eval-
uations and no repercussions have resulted On the
other hand, some local option Uniservs have
chosen to follow WEAC's lead more closely and
base their directors' evaluations, at least in part, on
how well they have carried out WEAC's pro
grams
Personnel and labor relations matters for the as
sociate staff of local option Uniservs are handled
mainly by their boards of directors or presidents
Hiring, firing, evaluations, discipline, and grievance
handling in these Uniservs all fall within the
board's or president's authority In many cases,
however, associate employees receive work assign-
ments not only from the Uniservs elected officials,
but also from the director Day to-day supervision
varies from one local option Uniserv to another,
but the record shows that close supervision is not
practiced because experienced associate staff per-
sonnel can perform their duties without much
oversight Telephone contact between the associate
staff employees and the Uniserv president occurs
on a regular basis at many Uniservs
WEAC/Uniserv Functional Coordination
WEAC has always had at least one staff member
whose primary responsibility is to work with the
Uniservs When the Uniserv program began,
WEAC's director of field services also assumed the
role of Uniserv coordinator In 1976, both positions
were eliminated Around the same time, WEAC di-
vided the State geographically into four regions
and created the position of regional coordinator to
head each region
Regional coordinators telephoned or visited Uni
servs in order to keep abreast of events throughout
their regions Often regional coordinators acted as
backups for Uniserv directors and assisted them
when workload demands warranted In addition
they convened monthly meetings of Uniserv direc-
tors where information was shared regarding col
lective bargaining issues, legal matters, and political
developments Attendance at these meetings was
encouraged, but not compulsory, and some direc
tors (notably those from the large, urban Uniservs)
elected not to attend WEAC took no steps to re
quire stricter attendance
The regional coordinator positions were abol
ished in 1983 and their duties were consolidated
into that of a single statewide coordinator Under
the state coordinator system, significantly less time
is available for individual dealings with directors
However, the State remains geographically divided
into four regions and the state coordinator periodi
cally holds meetings in each region In addition,
three times a year he holds meetings for all Uniserv
WISCONSIN EDUCATION ASSN
directors and WEAC staff The record indicates
that the state coordinator has some duties different
from those of the regional coordinators, but there
is no evidence that he holds any more authority
over the individual Uniserv directors
In seeking to ensure stability within the organiza
tion as a whole, WEAC has occasionally inter
vened in disputes arising between a Uniserv's elect
ed leadership and its director 21 Because it has no
authority over either the directors or the leader-
ship, however, WEAC's role is limited to that of a
mediator, using persuasion rather than authority in
attempting to resolve disputes Ultimately, the par-
ties themselves decide how to settle their differ
ences
Further evidence of WEAC's efforts at coopera-
tion with the Uniservs is reflected in its budget that
specifies that its various programs require the joint
efforts of WEAC and the Uniservs These joint ef-
forts necessitate interaction between WEAC and
Uniserv personnel through regular meetings, such
as the monthly regional staff meetings, arranged by
WEAC's state coordinator for the region's Uniserv
directors, and the annual statewide staff meeting,
where all Uniserv directors-state and local-meet
with the WEAC staff Expenses incurred by the di-
rectors for attending these meetings are reimbursed
by WEAC, and attendance at these meetings is en
couraged, though not mandatory The record indi
cates that directors from the large, urban Uniservs
seldom attend these meetings, but WEAC has
taken no action against them In addition, WEAC
conducts a leadership conference every summer,
where teachers who are elected to serve as repre
sentatives from their locals receive training for
their union-related duties State and local Uniserv
directors, together with WEAC staff, conduct
workshops and panel discussions at these training
sessions Directors are paid only their regular sala
ries for performance of these training responsibil
ities, which are considered part of their function as
directors Notably, however, directors from the
urban Uniservs rarely attend these conferences or
conduct training and WEAC does not attempt to
force them to do so Other meetings requiring
WEAC staff to work with Uniserv directors occur
sporadically, and such subjects as retirement,
public relations, labor law, and use of the computer
network have served as topics In addition to these
intraorganizational meetings, WEAC has also re-
quested Uniserv directors to take part in outside
21 The record reveals one instance where a conflict within a Umserv
grew so severe that the Uniserv disbanded and its locals had to be placed
within other Uniservs and WEAC was not fully repaid for a loan it had
outstanding with that Uniserv At least one of WEAC s motives in at
tempting to settle internal Uniserv disputes therefore is to avoid similar
cases of disbanding Uniservs and their consequent disruptions
709
training courses (at WEAC expense) so that the
benefits can later be shared with others in the
WEAC and Uniserv system
Because its major responsibility and objective is
to enhance collective bargaining between the
teachers it represents and the school districts that
employ them , WEAC and the Uniservs often work
hand in hand with the locals in the collective-bar-
gaining process Aside from conducting training
sessions for teacher bargainers about methods of
negotiation and being available as a resource for
guidance during the bargaining process, Uniserv di
rectors may also sit directly at the table as part of
the bargaining team In addition , because Wiscon-
sin law requires mediation/arbitration if the parties
cannot independently reach agreement, WEAC
will designate an outside Uniserv director to
review a local 's preparedness for that process when
that stage is reached 22 Once a local is found
ready , WEAC pays its costs in the medi
ation/arbitration proceeding WEAC also has avail-
able data concerning wages and other aspects of
contract settlements from school districts around
the State that locals may use in assessing their own
demands, and the WEAC Insurance Trust will pro
vide the information directors need to assist them
with negotiations of fringe benefits WEAC offers
its Uniserv locals computer software to facilitate
analyzing bargaining information , as well as in
house expertise in budgetary and financial matters,
and specialists in the mediation/arbitration process,
to further assist them in the bargaining process
In general, Uniserv directors personally handle
many quasi -judicial proceedings involving the
membership, such as unemployment hearings and
arbitrations, with WEAC's staff attorneys provid
ing legal advice and guidance , on request Howev-
er, under the terms of Council 10's mediated agree
ment, all grievances and arbitrations are handled by
WEAC lawyers so that the director can devote
more time to collective bargaining matters Though
this arrangement was entered into when Council 10
was a state Uniserv , it continues in effect now that
it has become a local option Uniserv At the other
extreme, mediated agreements with Madison
Teachers , Green Bay, and Racine permit them to
hire outside legal counsel at WEAC expense de
spite the availability of the WEAC legal staff 23 In
the instant proceeding , WEAC sought cooperation
from the local option Uniservs by asking them to
22 Uniserv directors asked by WEAC to serve as reviewers of a local s
readiness for mediation/arbitration are not obligated to perform this duty
and may decline the assignment without penalty from WEAC
23 Although WEAC pays the bill lawyers hired under this arrange
ment represent the Uniserv or the individual member involved in the pro
ceeding not WEAC
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agree to be represented by a single attorney re
tained by WEAC WEAC could not require the
Uniservs to follow this suggestion, however, and
one Uniserv chose to remain outside the case en-
tirely and two others initially retained separate
counsel 24
WEAC's political staff includes a legislative con
sultant and four regional political action specialists
WEAC also has a political action committee
(PAC), which endorses and contributes money to
candidates WEAC encourages the Uniservs to
form their own PACs as well Uniserv PACs are
recognized by the state election commission as sep
arate entities from the WEAC PAC and they make
their own decisions regarding whether and whom
to endorse and the amount and kind of support to
be offered To coordinate lobbying efforts,
WEAC's legislative consultant and political special-
ists communicate frequently with the Uniserv di
rectors and associate staff when legislation affect-
ing the profession is pending 25 Uniservs also occa-
sionally host breakfasts for legislators and hold
other political meetings that bring them in touch
with the WEAC political staff In addition, the leg-
islative consultant and political specialists fill in, as
needed, for Uniserv directors in the performance of
political duties associated with the director's pose
tion
WEAC and the Uniservs also work together on
special projects For example, the women's intern
program, paid for by WEAC and supervised by the
state coordinator, trains women to become Uniserv
directors by placing them within Uniservs to work
on projects selected by the coordinator and the di
rector However, there is no agreement that the
participants will be hired as directors on the com
pletion of their training, nor is there any guarantee
of future employment WEAC has assisted the Uni-
servs in community organizing, in organizing em
ployees into units for bargaining, and in special ne
gotiating projects
The NEA Uniserv Staff Utilization or shared
staff' program, the result of an agreement between
NEA and WEAC, is a system whereby additional
staff can be supplied to areas faced with strikes or
other critical situations As part of this program,
Uniserv directors are asked to select 2 months a
year in which they may be called on to serve in
areas outside their own Uniserv They, along with
24 The two Madison Teachers and Racine subsequently joined the
other Uniservs and are represented by the WEAC recommended attor
ney
25 WEAC and the Uniservs are not invariably in accord on political
issues For example Madison Teachers lobbied against the bill requiring
mediation/arbitration of contracts even though WEAC supported it as
well as against a residency law that WEAC had promised not to oppose
Despite these differences WEAC took no action against Madison
WEAC staff members, have worked out of State
under this program, and Uniservs have received
additional staff from out of State pursuant to the
same arrangement in other jurisdictions 26
WEAC maintains communication with the Uni-
servs and locals through a variety of publications
The collective bargaining division sends "Scope"
directly to local bargainers, but most other publica-
tions are distributed through the Uniservs For ex-
ample, research bulletins on bargaining issues, the
WEAC newsletter, leadership handbook, and infor-
mation packets for delegates to the representative
assembly are all sent to the Uniservs, which, in
turn, disseminate the literature to the locals 27 In
addition, WEAC distributes each Uniserv's news-
letter to all other Uniservs in the State and shares
information on job openings among all NEA affili-
ates
Although Uniserv "associate" staff employees
meet formally with WEAC staff only once a
year-during the annual training session for associ
ate employees-there are nevertheless frequent
contacts between these two groups during the
course of their regular job responsibilities For ex-
ample, associate employees of Uniservs using the
WEAC bookkeeping system speak with the
WEAC bookkeepers at least weekly concerning
checks, vouchers, etc, directors needing informa-
tion from WEAC's collective-bargaining or legal
department generally have the associate employee
make the request, WEAC's political events are
commonly set up with the assistance of Uniserv as-
sociate staff, and various types of communications
with locals are funneled through the Uniserv asso-
ciate employees
Despite these many interactions and cooperative
efforts, local option Uniservs additionally engage in
activities entirely separate from, and in some in-
stances contrary to, WEAC programs and policies
For example, Green Bay sponsors its own group
legal services, group insurance coverage, and a fi-
nancial consulting service for its members North
west United Educators, contrary to WEAC's
policy of representing only members of the teach-
ing profession in units of at least 25, represents any
public, employees desiring representation At the
time of the hearing this included 10 nonteaching
bargaining units, 6 of which had fewer than 25
members Madison, too, represents several non-
26 Green Bays mediated agreement provides that it is not required to
lend (nor therefore is it eligible to receive) staff assistance under this
program Its director has however volunteered assistance during strikes
27 Although not every Umserv passes these publications along as
WEAC intends WEAC does not interfere in this process
WISCONSIN EDUCATION ASSN
teacher units 28 Lakewood Uniserv, in an action
completely independent from WEAC, hired two
hourly employees to perform community organiz
mg, under the supervision of its director Most Sig
nificant, perhaps, is the fact that despite WEAC's
adopting statewide bargaining goals, the locals are
free to disregard them
Relations Between Uniservs
Uniserv directors are routinely in touch with
each other on work related matters In fact, some
Uniservs share office space, thereby virtually assur
ing daily interaction Their contacts are completely
voluntary and generally informal, and they run the
gamut from exchanging ideas and information con
cerning bargaining, contract language , arbitration
issues , grievance handling, and planning workshops
to sharing work responsibilities In the latter cate
gory, testimony establishes that directors sometimes
substitute for one another, either by attending a
meeting or filling in at the office if the director is
out, as well as by performing specific tasks for
each other, including brief writing, presenting arbi-
tration cases, serving on grievance panels, and con-
ducting training sessions As the record bears out
in certain other respects, the large urban Uniservs
tend to be more independent, neither asking for nor
acceding to requests for assistance as often as the
composite Uniservs
Contact among the associate employees is less
frequent than among the directors and that which
does take place (except in shared office space situa
tions) is usually by telephone Though occasional
instances of inter Uniserv clerical assistance have
occurred, e g , helping to set up a filing system and
doing printing for a Uniserv that had a broken
press, these examples are exceptions and do not
happen on a regular basis
As above mentioned, a few Uniservs share office
space Bayland Teachers United and United North
east Educators share an office in Green Bay, while
the urban Green Bay Education Association main
tains a separate office in the same city In McFar-
land, Wisconsin, Capital Area Uniservs North and
South share an office Central Wisconsin Uniserv
Councils North, -South, and -West are housed to-
gether in Wausau Lakewood Uniserv Council,
North Shore United Educators, Triwauk Uniserv
Council, West Suburban Council, and Council 10
are in the same building with WEAC in Milwau
kee The state option Uniserv, Winnebagoland
Education Staff Counsel, is in the same office as
WEAC in Neenah, Wisconsin The remaining state
28 Because WEAC does not subscribe to nonteacher representation it
does not reimburse Madison for legal services provided the nonteacher
units despite the provisions of the mediated agreement
711
and local option Uniservs are in individual offices
throughout the State
In addition to sharing office space, Bayland
Teachers United and United Northeast Educators
mutually maintain the services of one Uniserv di
rector, in addition to each having a director of its
own Each Uniserv individually negotiates an em-
ployment agreement with its own director and then
jointly negotiates a separate agreement for the
shared director Central Wisconsin Uniserv Coun-
cils North, -South, and West not only share office
space, but also operate essentially as a single Uni
sere, having only one representative assembly, one
board of directors, one chairperson, and one team
that negotiates with employees of all three Uni
servs The associate staff is shared among the three,
but all are carried on the payroll of Central Wis-
consin Uniserv Council South, with the other two
reimbursing it for their share of the clerical serv-
ices Similarly, Capital Area Uniservs North and
South jointly employed a clerical employee during
the 1970s when North was a state option Uni
serv 29 That individual was carried on North's
payroll and included in the WEAC/USU bargain-
ing unit while, in fact, each Uniserv paid half her
salary and benefits The employee later was redes
ignated an employee of South (to enable her to re-
ceive a promotion not available under the collec
tive bargaining agreement) and the two Uniservs
continued to bear half the costs of her employ
ment Another individual was subsequently hired
and placed on the -North payroll although she
functioned as a joint employee and her salary was
shared by both Uniservs After several years under
this system, however, the Uniservs' boards of di
rectors ended the arrangement and each associate
employee became employed by only one of the
Uniservs Council 10 and Triwauk operated under
a similar arrangement, sharing a single associate
employee, this system endured under Council 10's
state and local option status alike
Discussion
From the foregoing, the Regional Director con
cluded, in agreement with the Petitioner USU's po
sition, that WEAC and the Uniservs, both state and
local option, meet the criteria necessary to warrant
a finding of single-employer status Citing the fac
tors set out in Electrical Workers IBEW Local 1264
v Broadcast Service of Mobile, 380 U S 255 (1965),
i e, interrelation of operations, common manage
ment, centralized control of labor relations, and
common ownership, the Regional Director found
28 Capital Area Uniserv North has since become a local option Uni
serv South has always been local option
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that WEAC and the Uniservs are sufficiently inte-
grated to constitute a single-employing entity
Based on our review of the same factors as applied
to the facts of this case, we find that single employ
er status has not been established
The above-listed single employer criteria are
well established, as are the principles that not all
these factors must be present in order to make a
single employer finding and that each case must be
assessed on its own facts See Blumenfeld Theatres
Circuit, 240 NLRB 206, 215-216 (1979), enfd mem
626 F 2d 865 (9th Cir 1980), and cases it cited In
the instant case , in finding no arm 's-length relation-
ship, the Regional Director relied heavily on the
fact that the Uniservs share the same essential pur
pose with WEAC, i e, the collective representation
of members of the teaching profession, and that
they engage in close mutual assistance to achieve
their goals We find, however, that the Regional
Director gave overriding weight to WEAC Una-
serv cooperative endeavors in concluding that their
dealings generally were not arm s length," and by
so doing failed properly to recognize that with re
spect to the four basic objective criteria for estab
lashing single employer, the evidence is insufficient
to show that any of the criteria have been met
In finding that the operations of WEAC and the
Uniservs are closely interrelated, the Regional Di-
rector relied on their existence within the multilay-
ered United Teaching Profession (UTP), their
holding themselves out to the public as a single
entity, the fact that the Uniservs were created to
replace and perform the duties of the WEAC field
staff, and particularly their complementary roles in
collective bargaining, contract administration, polit-
ical activity, training of members and employees,
and organizing new bargaining units He noted that
their cooperative efforts often result in contacts-
by telephone, in writing, and face to face-between
the Uniservs and WEAC as well as among the Una
servs themselves, albeit to varying degrees depend-
ing on the Uniserv involved He found that sub-
stantial Unaserv funding is derived from WEAC
and NEA subsidies, and pointed to requirements
set out in the WEAC Uniserv guidelines, such as
the necessity that each Uniserv has a constitution,
bylaws, a board of directors, and written employ
ment contracts with employees, as evidence of
WEAC's involvement in Uniserv affairs In adds
tion, he deemed WEAC's mediating disputes
within and among Uniservs, including its entering
into mediated agreements with certain Uniservs in
order to prevent disaffiliation, to be indicative of
interdependence He saw WEAC's advisory role in
the hiring process of Uniserv directors, involving
submission of candidate lists, assistance in the inter
view process, its right to approve final selection,
and its promotion of policies and programs de-
signed to enhance the employment of women and
minorities as being illustrative of this interrelation
Finally, the Regional Director relied on instances
of WEAC staff assistance with Uniserv projects,
similar mutual assistance among the Uniservs, and
Uniserv staff participation in WEAC programs (es-
pecially with regard to training and in the NEA's
shared staff program) as establishing the interrelat
ed nature of their operations
Contrary to the Regional Director, we do not
find that the evidence in this case shows substantial
interrelation of operations Although it is true that
common affiliation with UTP brings WEAC and
the Uniservs within an umbrella organization shar
ing the central purpose of representing members of
the teaching profession, it is equally clear that they
each occupy separate and distinct levels of oper-
ation, have different roles and functions, and exhib-
it a marked degree of independence of action Nei
ther WEAC nor any Uniserv identified itself as a
single entity with the other, but rather as individual
organizations that espouse the same goals and
sometimes combine efforts to achieve them 30
Moreover, that the Uniservs were created to re
place the WEAC field system does not, as the Re
gional Director appears to have found, mean that
WEAC continues to direct their activities Indeed,
the evidence is to the contrary, considering the au
tonomy and independence exercised by the local
option Uniservs Thus, it appears that the creation
of the Uniserv to replace the WEAC field system
represents nothing more than an effort to set up
separate independent units to more efficiently and
effectively promote common objectives Nor do
the WEAC/Uniserv guidelines, requiring Uniservs
to enact constitutions and bylaws and to establish
boards of directors, mean that WEAC directs or
controls how Uniservs should operate The pur-
pose of these requirements and their effect is to
create independent entities capable of self govern
ment and decision making, rather than to give
WEAC a say in the operation of the Uniservs In
fact, none of these governing documents or boards
provide WEAC any role in the local option Uni-
servs' policymaking Further, the mere existence of
many WEAC Uniserv cooperative activities does
not support the Regional Director's finding Coop
erative activities are, by definition, voluntarily as
30 The Regional Director apparently relies on the listings of Uniservs
and their directors in NEA s and WEAC s handbooks and directories
and WEAC newsletters publicizing Uniserv accomplishments to reach
the conclusion that their operations were interrelated We find that these
examples connote public relations efforts attuned to their acknowledged
affiliation rather than represent integrated operations
WISCONSIN EDUCATION ASSN
sumed as opposed to required or directed They
usually are engaged in by the parties to promote or
further common purposes By such cooperation,
the parties hope to gain their objectives by jointly
employing resources to their best effect There is
nothing in this record to indicate that WEAC and
the Uniservs participated in their cooperative en
deavors for any other reason
Regarding financial support, the Regional Direc-
tor's own findings establish that less than half of a
Uniserv's budget is derived from WEAC and NEA
subsidies All Uniservs set up their own dues struc-
ture and establish their own budgets without inter-
ference or input from WEAC And WEAC's medi-
ation efforts (described above), designed to avert
breaks from the Uniserv system, involve WEAC's
powers of persuasion rather than the imposition of
authority, WEAC cannot require a Uniserv to
modify its positions, it can only attempt to effect
voluntary settlements Some of these settlements
have resulted in mediated agreements that embody
terms specifically recognizing the Uniserv's free-
dom to establish its own priorities and follow its
own methods Similarly, regarding WEAC's role in
hiring, the Regional Director acknowledged that
its role in reviewing applicants for local option
Uniserv director is merely advisory, and testimony
establishes that WEAC makes no recommendations
as to which candidate to hire and that it has never
withheld approval of the Uniserv's choice 31 More-
over, WEAC has no involvement in the Uniservs'
hiring of associate staff Finally, the Regional Di
rector failed to give weight to the many instances
in which Uniservs have not followed WEAC's sug-
gestions, have declined to participate in WEAC-
sponsored activities, have taken political positions
different from WEAC's, have disregarded guide-
lines with impunity, and have organized bargaining
units not connected with WEAC
Accordingly, we find, based on the same factors
relied on by the Regional Director, that WEAC
and the Uniservs do not function on a truly interre-
lated basis Rather, they function as cooperative,
independent entities sharing a common purpose,
but differing in methods, direction of efforts, and
source of authority
The Regional Director also found that a degree
of common management exists between WEAC
and the Uniservs Although acknowledging that
WEAC's governing structure is composed of an
executive secretary, departmental managers, elect-
ed officers, and a board of directors and that the
31 Even WEAC directed affirmative action efforts have not resulted in
a Uniserv s selection for director being countermanded In addition it is
important to note that the WEAC women s intern program is not linked
to permanent employment with a Uniserv
713
Uniservs have their own boards of directors and
officers, he nevertheless found interlocking man-
agement because many of those serving on the
WEAC board are from Uniservs and are often the
same individuals who serve on their own Uniserv
board On this basis alone he concluded that the
policymaking functions for both WEAC and the
Uniservs he, in part, in the same hands
We find the Regional Director's reliance on that
ground is misplaced because he failed to give
proper weight to other factors that militate against
a finding of common management As the Regional
Director himself acknowledged, "no one member
of the WEAC board or a Uniserv board has
enough voting power to individually determine the
outcome of decisions on either board " Further, a
formal separation of powers exists between WEAC
and the Uniservs WEAC and each Uniserv has its
own governing documents, power structure, and
defined lines of authority Policy is set by a Uni-
serv's own representative assembly, leaving no role
to WEAC Indeed, when WEAC wants Uniserv
staff cooperation, all it can do is make the request
by going to the Uniserv president who will decide
how to respond If a Uniserv declines to comply
with a request, no sanctions are imposed 32 In fact,
certain Uniservs routinely decline to attend meet
ings, perform training, or take part in the shared
staff program-all without repercussions for these
policy breaches
Another example of the Uniservs' separate, inde
pendent management is that they alone decide
whether to function as a state option or local
option Uniserv They can switch from one option
to the other, at will, without interference from
WEAC In addition, Uniservs decide for them-
selves where to set up their offices, including
whether to rent or buy their space Although
WEAC stands ready to assist Uniservs in finding
space and to obtain favorable rates for financing,
this service, like others available from WEAC, is
not contingent on Uniservs' acquiescing to WEAC
control
In light of the weight of evidence establishing
the local option Uniservs' independence of oper-
ations, we find that the fact that certain individuals
may serve both as representives on their own Uni
serv boards as well as on WEAC's board is not an
adequate basis for concluding that the two share
common management
Next, despite his unequivocal finding that local
option Uniservs each control their own day to day
32 Among the most extreme examples of the lack of WEAC manager
al control over other operating levels are the refusals of Eau Claire and
Monona Grove to join a Uniserv despite the ostensible rule requiring all
local associations to become part of the Uniserv system
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor relations, the Regional Director concluded
that WEAC and the Uniservs to "a degree share
control of labor relations because a committee
composed of local option Uniserv representatives
participates in negotiating the WEAC/USU collec-
tive bargaining agreement for WEAC Contrary to
the Regional Director, we do not assign decisive
weight to this fact
Throughout his recitation of the facts, the Re
gional Director invariably described the Uniservs
as autonomous in their conduct of labor relations
A significant element establishing this autonomy is
that local option Uniservs were designed specifical-
ly to act as employers of their own staff-in con
trast to state option Uniservs whose staffs are treat-
ed as WEAC employees (and who are part of the
existing bargaining unit the Petitioner seeks here to
expand) Local option Uniservs hire,33 fire, disci
plane , negotiate employment agreements, grant time
off, direct, evaluate, and adjust grievances of their
own staffs without any interference from WEAC
Because each Uniserv negotiates separately with its
employees and each has different financial re
sources and budget considerations, the employees'
wages, fringe benefits, and other terms and condi
tions of employment vary from Uniserv to Uniserv
and from the WEAC/USU contract No contract
of employment between a local option Uniserv and
a staff member is subject to review or approval by
WEAC The local option Uniservs are also free to
recognize or not recognize a collective-bargaining
representative for their employees, again without
influence or direction from WEAC
Testimony clearly establishes that Uniserv direc-
tors and associate staff take direction from and are
answerable to their Uniserv president, not WEAC,
and that the style of management at each Uniserv
is reflective of the individuals elected to lead the
Uniserv, not WEAC In this regard, notwithstand-
ing tripartite language to the contrary, if a Uniserv
president does not wish to permit the director to
leave the Uniserv to perform work for WEAC or
NEA, the director will not leave the Uniserv
As for local option Uniserv involvement in
WEAC's labor relations, the Regional Director's
own language best refutes the conclusion that there
is a notable degree of common control of labor re
lations
WEAC conducts its own labor relations
with the employees in the existing bargaining
units It negotiates separate collective-bargain
ing agreements with USU on behalf of the
professional and associate units The WEAC
sa As earlier described WEAC does not participate in the hiring of as
sociate staff and has only a limited role in the hiring process of directors
a role that the Uniservs are free to ignore
negotiating committee is composed of some of
the representatives of local option Uniservs on
the WEAC board of directors The record is
sketchy as to the manner in which the commit-
tee negotiates with USU, and as to the manner
in which overall labor relations policies and
day to day labor relations are handled for the
WEAC staff However, there is no evidence
that the representatives of local option Uni-
servs play any role in formulating noncontrac-
tual labor relations policies or in the day to
day labor relations of the WEAC staff
We find, therefore, that the evidence relating to
the control of labor relations is insufficient to sup
port a finding of single-employer status
Finally, the Regional Director determined that
WEAC and the Uniservs also meet the fourth cri-
terion of single employer status, that of common
ownership Recognizing that these entities are non
profit organizations, having no real owners or
stockholders, he nevertheless reasoned that because
employees of both WEAC and the Uniservs are ul
timately responsible to the elected leadership and,
through them, to the membership of the WEAC af-
filiated locals, this common accountability is suffi-
ciently akin to common ownership to satisfy this
criterion We disagree
First, in the circumstances of this case, the factor
of common ownership is not really applicable be
cause, as the Regional Director recognized,
WEAC and the Uniservs have no owners Second
we are not persuaded by the Regional Director's
accountability rationale With respect to the second
point, we note that each Uniserv has it own mem
bership, separate from all other Uniservs, and al
though Uniserv members are, by virtue of the
UTP's unified membership structure (see fn 5,
supra), members of WEAC as well, their WEAC
membership is more associational than participa
tory Further, WEAC's membership base includes
not only every Uniserv member, but also those not
participating in that system, e g , the Eau Claire
and Monona Grove local association members In
any event, the absence of common managerial con-
trol of the different entities involved outweighs any
attribute of common membership in WEAC that
the members of the Uniservs and the two non Uni
serv associations share The local option Uniservs,
for example, beside having individual structures
and operations, often take different stands on issues
and pursue different, sometimes conflicting, inter
ests than that of WEAC and other Uniservs Thus,
common control is missing from the relationship
between the local option Uniservs and WEAC and,
with it, the so-called accountability to the member
WISCONSIN EDUCATION ASSN
ship that the Regional Director deemed equivalent
to ownership Accordingly, common ownership as
a criterion for determining single employer status
has not been established under the Regional Direc-
tor's "accountability" rationale , nor is there any of
the usual ownership indicia
Based on the foregoing , we conclude , contrary
to the Regional Director , that WEAC and the Uni
servs do not meet the standard for single employer
status Although there are clearly strong instances
of cooperation and mutual assistance , derived from
their common goals , these factors do not together
establish the absence of an arm 's-length relationship
necessary for a finding of single employer
Joint Employer
The Regional Director concluded, in the alterna
tive, that should there be insufficient common con-
trol over labor relations to establish single employ
er status , WEAC and the Uniservs are nonetheless
joint employers He reached this conclusion, how-
ever , without analyzing the facts under the stand
and for joint employer
The test for determining whether multiple enti
ties are a joint employer is whether they together
share or codetermine "those matters governing the
essential terms and conditions of employment" as
shown by the purported joint employers ' meaning
fully affecting "matters relating to the employment
relationship such as hiring , firing , discipline , super-
vision , and direction " TLI Inc, 271 NLRB 798 at
798 (1984), enfd mem 772 F 2d 896 (3d Cir 1985),
NLRB v Browning-Ferris Industries, 691 F 2d 1117
(3d Cir 1982) The four factors indicative of single
employer are not determinative of joint employer
status and the absence of an arm 's length relation-
ship is not descriptive of joint employers Instead,
joint employers are separate entities who share in
the control of the employees ' worklife
Based on the evidence , we find that no joint em-
ployer relationship exists Although there is no
need to recount in detail those matters over which
Uniservs, individually and without WEAC partici-
715
pation, exercise exclusive control, it is important to
note again that local option Uniservs alone decide
whom to hire and fire, when and how to discipline,
the manner in which supervision will operate, how
to evaluate employees and resolve their grievances,
the manner in which their work will be directed
and, together with the employee, negotiate an
agreement covering the terms and conditions of his
or her employment Consequently, there is simply
no room for codetermination with WEAC because
the Uniservs control all these areas of the employ
ment relationship
In addition, it is important to recognize that the
27 individual local option Uniservs are completely
separate from one another as well as from WEAC
They are geographically disparate, individually
managed and governed, have separate work forces
(except in those cases, described above, in which
Uniservs sharing office space engage in employee
sharing arrangements), and operate autonomously
on all matters relating to the direction of employ-
ees Accordingly, we conclude that the Uniservs
are not joint employers of Uniserv employees
In conclusion, we find that the evidence con-
cerning the relationship between WEAC and the
Uniservs is neither that of single employer nor joint
employer Accordingly, there is no basis for con-
ducting elections among two separate groupings of
employees working at the local option Uniservs to
decide whether they wish to be represented in
units currently consisting of employees of WEAC
and the state option Uniservs, and we shall there-
fore dismiss the petitions in Cases 30-RC-4162 and
30-RC-4163 34
ORDER
The petitions in Cases 30-RC-4162 and 30-RC-
4163 are dismissed and the Regional Directors Di-
rection of Election in Voting Group C is vacated
34 Because of the dismissal of these petitions we shall vacate the Re
gional Directors Direction of Election with respect to the attorneys in
cluded in the existing professional unit of WEAC and state option Um
servs (Voting Group C)