Wordsworth Academy

National Labor Relations Board - Board Decisions

Jun 25, 1982

262 N.L.R.B. 438 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wordsworth Academy and American Federation of
Teachers, AFL-CIO, Petitioner. Case 4-RC-
14161
June 25, 1982
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer David M.
Spitko on May 8, 1980. At the hearing, the Hearing
Officer permitted the Pennsylvania Labor Relations
Board, hereinafter PLRB, to intervene and assert
its position that the Employer is subject to its juris-
diction, rather than to that of the Board. Following
the hearing, and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Acting Regional
Director for Region 4 transferred this case to the
National Labor Relations Board for decision.
There-!fter, the Employer, the Petitioner, and the
PLRB filed briefs.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
In February 1978, the Petitioner filed a petition
in Case 4-RC-13053. That petition was dismissed
on April 14, 1978, based on the Regional Director's
determination that the Employer was an adjunct to
the public school system, and therefore exempt
from our jurisdiction. Thereafter, the Petitioner
filed a petition with the PLRB seeking to represent
the Employer's professional employees. The PLRB
conducted an election on June 8, 1979, and, on
June 2, 1980, issued a final tally of ballots which
established that a majority of valid ballots had been
cast for the Petitioner. On September 2, 1980, the
PLRB certified the Petitioner as the representative
of the employees in the following unit:
In a subdivision of the employer unit com-
prised of all full-time and regular part-time
professional employes including but not limit-
ed to teachers, teacher assistants, staff psychol-
ogists, social workers, art therapists, speech
therapists, and career counsellors employed by
Wordsworth Academy at its Main, Linfield
and Wyncote subdivisions; excluding non-
professional employes, substitute teachers,
clerical employes, confidential employes,
CETA employes, maintenance employes,
guards and supervisors as defined in the Act.
During the pendency of the PLRB proceedings,
the Employer resisted the PLRB's assertion of ju-
risdiction contending that the Board's decision in
262 NLRB No. 42
National Transportation Service, Inc., 240 NLRB
565 (1979), indicated that the Employer was now
subject to the Board's jurisdiction rather than to
that of the PLRB.
On March 5, 1980, the Petitioner filed a petition
with the Board in Case 4-RC-14091, seeking an
election in the unit described above. The Acting
Regional Director dismissed the petition on April
3, 1980, stating that a "prior valid election," within
the meaning of Section 9(c)(3) of the Act, had been
held within the preceding 12-month period. The
Petitioner, relying on National Transportation, and
D. T Watson Home For Crippled Children, 242
NLRB 1368 (1979), filed the present petition on
April 11, 1980.
At the hearing on the instant petition, the parties
entered into evidence the various exhibits and tran-
scripts generated during the hearings held by the
Board and by the PLRB.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is a nonprofit corporation orga-
nized under the laws of Pennsylvania with its prin-
cipal office located at 2001 Pennsylvania Avenue,
Fort Washington, Pennsylvania. It is engaged in
providing special educational services to children
who suffer from learning disabilities due to social
or emotional disturbances or brain damage. During
the fiscal year preceding May 1980, the Employer
received gross revenue in excess of $1 million and
purchased goods valued in excess of $50,000 from
firms located in the Commonwealth of Pennsylva-
nia, which in turn themselves purchased goods
valued in excess of $50,000 directly from outside
the Commonwealth of Pennsylvania.
Relying on its involvement with the Common-
wealth of Pennsylvania, the Employer claims that
it is exempt from the Board's jurisdiction. Specifi-
cally, the Employer asserts that it is exempted be-
cause it is a "political subdivision" within Section
2(2) of the Act, because it is an adjunct to the
public school system, or because it does not have
sufficient control over its labor relations to permit
it to bargain with the Petitioner.
The Employer first claims an exemption from
the jurisdiction of the Act as a "political subdivi-
sion" under Section 2(2). The exemption for politi-
cal subdivisions has traditionally been limited to (1)
entities that are created directly by the State, so as
to constitute departments or administrative arms of
the government, or (2) entities that are adminis-
tered by individuals who are responsible to public
officials or to the general electorate.' The Employ-
L N.LR.B. v. The Natural Gas Utility District of Hawkins County. Ten-
nessee, 402 U.S. 600 (1971).
438
WORDSWORTH ACADEMY
er does not contend that it was created directly by
the State so as to constitute a department or admin-
istrative arm of the government. Instead, the Em-
ployer argues that its administrators are "strictly
responsible" to state officials, and that, according-
ly, it is excluded under the second part of the test.
The facts relied on by Wordsworth to establish
its exemption stem from its participation in a state
educational plan for children who suffer from a
learning disability. Under this plan, individual
school districts are required to identify all excep-
tional children in their jurisdictions, diagnose their
learning disabilities, and arrange for an education
appropriate to those disabilities, either by establish-
ing the courses themselves or by placing the child
in an approved private school at state expense.
In the typical case, once a child is identified as
handicapped, he or she is referred to an institution
for evaluation of his or her skills and deficiencies.
After the diagnosis is made, a personal educational
program, an "individual education prescription"
(IEP), is drawn up by the child's parents, repre-
sentatives of the school district, and representatives
of the diagnosing agency. These representatives are
often teachers from one of the approved private
schools. The IEP becomes the governing instru-
ment for the education of the child, and, if the
school district cannot provide the education it re-
quires, the child is referred to an approved school
offering an appropriate program.
Schools acquire approved status through proce-
dures outlined in state regulations. Under those
regulations, private schools wishing to participate
in the plan submit an application for approved
status to the state Department of Education
(DOE). These applications must include (1) copies
of all licenses, (2) a brief resume and all certifica-
tions for each administrator and faculty member,
(3) the school calendar, (4) a description of trans-
portation arrangements, (5) the school's enrollment
capacity, (6) the admission criteria, (7) the tuition
and fee structure, and (8) an outline of the school's
educational program showing conformity with ap-
plicable special education program standards. If the
application is regular on its face, and shows com-
pliance with the State's minimum standards, such
as the requisite number of school days and appro-
priately certified teachers, an onsite evaluation is
scheduled to verify the initial acceptability of the
applicant's educational services. Continuing accept-
ability is assured through triennial reevaluations.
The evaluators, all of whom are professional spe-
cial educators, spend several days at the school, ex-
amining all aspects of the school which, in their
professional judgment, are relevant to a full assess-
ment of the program. The most critical factors,
however, are the teachers' qualifications and cre-
dentials, and their ability to handle the program for
the children at the school. In addition to checking
teachers' academic records, special certifications,
and experience, the evaluators look at their overall
attitude, approach, and classroom method. Other
factors, such as administrative organization of the
school and the percentage of school income being
spent on salaries, are considered insofar as the eval-
uators find that the factors have a direct impact on
the classroom instruction. The State, however,
plays no role in firing, disciplining, or promoting
staff or faculty, setting fringe benefits or salaries, or
establishing leave or grievance policies. Further,
the evaluation report only identifies problems, and
does not recommend or direct any specific course
of action. According to the testimony of George
Severns, the assistant to the director of special edu-
cation in the state r)OE, any pressure an adminis-
trator may feel to correct problems cited in the
evaluation report "is only the pressure that the ad-
ministrator may feel himself or herself." No direc-
tives issue from the State or its agencies.
In addition to the initial and triennial evaluation
of the instructional program, the State conducts an
annual audit of the school's expenditures to deter-
mine which expenses are related to the state-re-
ferred student's education, and are therefore reimn-
bursable. Expenses which are attributable to the
students' general health or welfare or which exceed
reasonable amounts chargeable to an educational
program are not reimbursed. The reimbursement is
figured by totaling the charges allowed by the
auditors, dividing it by the number of state-referred
students, and subtracting any amounts over the
statutory ceiling on reimbursement. The school
never knows the amount it will receive until the
money has been spent and the expenditure audited.
Because no surplus is available from the reimburse-
ments and because parents cannot be charged for
"educationally related" expenses, deficits are made
up by charging parents for optional services such
as summer school, lunches, and field trips. The
record shows that Wordsworth had always been at
or above the statutory maximum for reimburse-
ment. The 1975-76 audit shows that Wordsworth
spent an average of $4,233 for nonresidential stu-
dents, and $10,200 for residential students, where
the statutory maximum for each was $4,100 and
S8,500, respectively.
The record reveals only two direct restrictions
on approved schools such as Wordsworth. First,
the students accepted into the program cannot be
disenrolled by the school without the approval of
the local school district and the parents. If either
one dissents from the school's decision, a hearing is
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held to assure that the child's right to a state-
funded education is protected.2 Second, the school
cannot suspend a child for more than 3 days with-
out approval from the state DOE and notice to the
local school district.
Wordsworth is a privately founded school whose
president reports to its own board of directors,
none of whom represent public officials or hold
public office. Wordsworth has received no real
estate or equipment pursuant to local, state, or Fed-
eral grants or appropriations, and makes no annual
reports to the state legislature. Its students are not
all state-referred, and its teachers are not eligible to
participate in the state retirement plan. Although
clear restrictions exist concerning expenses which
are reimbursable, the school's spending is entirely
within its discretion.
Although Wordsworth and the State have a
close relationship, it is clear that Wordsworth has
retained complete authority over its own course of
action. Wordsworth decides what will be taught,
when it will be taught, how it will be taught, and
where it will be taught. Wordsworth hires its own
administrators, staff, and faculty, and has the right
to refuse to accept a student referred by the State.
State standards embodied in statutes or regulations
clearly have an effect on Wordsworth and other
private schools; but they are no more than licens-
ing requirements for engaging in the business of
education, and for doing business with the State
under its special education plan. Because Words-
worth has full authority to conduct its affairs, and
is not directly responsible to public officials or the
general electorate, it is not a political subdivision.
As noted earlier, the Employer argues that it is
exempt from the Board's jurisdiction because it is
an adjunct to the public school system, and because
it does not have sufficient control over its labor re-
lations to permit it to bargain with the Petitioner.
We find, first, that the adjunct test is no longer a
viable jurisdictional test, and, second, that the Em-
ployer does have sufficient control over its labor
relations to permit it to bargain with the Petitioner.
In D. T. Watson Home For Crippled Children, 242
NLRB 1368, the employer argued that the Board
should decline to assert jurisdiction over its health
care facility. In support, the employer cited Over-
brook School for the Blind, 213 NLRB 511 (1974),
and Pennsylvania School for the Deaf, 213 NLRB
513 (1974), cases in which the Board refused to
assert jurisdiction because those schools were "ad-
juncts" to the public school system, providing
state-mandated education in satisfaction of the
I If the parents feel the child's disability has not been remedied, the
State will conduct a hearing to assess their contentions and determine
whether state funding for a special education program should continue.
The effect of this decision on Wordsworth is unclear.
State's statutory obligation to provide educational
opportunities to handicapped children. The Board
rejected the employer's argument in D. T: Watson,
and stated:
[I]n National Transportation Service, Inc., 240
NLRB 565 (1979), we indicated that--when
ascertaining whether jurisdiction should be as-
serted over an employer which appears to
maintain close ties to an exempt governmental
entity-we shall no longer decline jurisdiction
solely because of the relationship between the
"purposes" of the exempt entity and the nature
of the services provided to it by such an em-
ployer. Rather, for the reasons expressed
therein, we decided to henceforth resolve such
jurisdictional questions by first determining
whether the subject employer itself meets the
definition of "employer" in Section 2(2) of the
Act and-if it does--then determining whether
that employer has sufficient control over the
employment conditions of its employees to
enable it to bargain with a labor organization
which represents them. Accordingly, to the
extent that they are inconsistent herewith, the
cases cited by the Employer are no longer
controlling. 3
Although D. T. Watson thus appeared to put the
adjunct test to rest, subsequent cases seemed to in-
dicate that it had continuing viability. See The
Krebs School Foundation, Inc., 243 NLRB 514
(1979), and The New York Institute for the Educa-
tion of the Blind, 254 NLRB 664 (1981). New York
Institute added the observation that the adjunct test
may still apply "at least insofar as schools are con-
cerned." (Id. at 665.)
We have examined the question and can find no
reason to apply the adjunct test and thereby treat
schools differently from other employers who may
have close ties with an exempt entity. The adjunct
test, which examines the relationship between the
employer and the exempt entity, is nothing more
than the intimate connection test reborn, and the
same reasons which persuaded us in National
Transportation to reject that test compel a similar
result for the adjunct test. Henceforth, we shall
rely on the standard announced in National Trans-
portation to determine whether to assert jurisdiction
over employers with close ties to an entity exempt-
ed under Section 2(2) of the Act.
Application of that standard convinces us that
the Employer retains sufficient control over the
employment conditions of its employees to enable
it to bargain with a labor organization. While it is
3 242 NLRB at 1370.
440
WORDSWORTH ACADEMY
true that the minimum state standards for teacher
qualifications undoubtedly affect the Employer's
hiring, firing, and promotion decisions, this fact
does not distinguish the Employer from any other
school operating in the State. Further, although the
State, during its evaluation process, considers
teacher qualifications and credentials, as well as the
percentage of the Employer's income spent on sala-
ries,4 none of these considerations results in any
order to the Employer to take any action. Beyond
the indirect effect of these factors, the record is
barren of any evidence that the State plays any
role in the Employer's hiring, firing, discipline, or
promotion of staff or faculty, or in resolving griev-
ances, or setting day-to-day working conditions.
Accordingly, in view of the record as a whole,
we find that the Employer's operations affect com-
merce within the meaning of the Act and that it
will effectuate the purposes of the Act to assert ju-
risdiction herein.
2. The parties stipulated, and we find, that the
Petitioner is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated to the appropriateness of
a unit essentially consisting of all full-time and reg-
ular part-time professional employees, with speci-
fied exclusions, except that the Employer contends
that the recent Supreme Court decision in
N.LR.B. v. Yeshiva University, 444 U.S. 672 (1980),
specifically excludes its teachers, psychologists, and
therapists from the coverage of the Act because
they are managerial employees. In Yeshiva, the Su-
preme Court found that, because of the manner in
which the University operated, members of its fac-
ulty were managerial employees excluded from the
coverage of the Act. In making this determination,
the Court, citing N.LR.B. v. Bell Aerospace Com-
pany, Division of Textron, Inc., 416 U.S. 267 (1974),
observed:
Managerial employees are defined as those
who " 'formulate and effectuate management
policies by expressing and making operative
the decisions of their employer.' ". . . These
employees are "much higher in the managerial
structure" than those explicitly mentioned by
Congress, which "regarded [them] as so clear-
ly outside the Act that no specific exclusionary
provision was thought necessary." . . . Man-
agerial employees must exercise discretion
4 Although state reimbursement funds do constitute a large source of
income for the Employer. Wordsworth's spending and budget allocations
are completely within its own discretion.
within, or even independently of, established
employer policy and must be aligned with
management.
The controlling consideration in this case is
that the faculty of Yeshiva University exercise
authority which in any other context unques-
tionably would be managerial. Their authority
in academic matters is absolute. They decide
what courses will be offered, when they will
be scheduled, and to whom they will be
taught. They debate and determine teaching
methods, grading policies, and matriculation
standards. They effectively decide which stu-
dents will be admitted, retained, and gradu-
ated. On occasion their views have determined
the size of the student body, the tuition to be
charged, and the location of a school, When
one considers the function of a university, it is
difficult to imagine decisions more managerial
than these. To the extent the industrial analogy
applies, the faculty determines within each
school the product to be produced, the terms
upon which it will be offered, and the custom-
ers who will be served.-
Recognizing the tension between the Act's exclu-
sion of managerial employees and its inclusion of
professional employees, the Court stated that it in-
tended no suggestion that the managerial exclusion
be applied to
. . . sweep all professionals outside the Act in
derogation of Congress' expressed intent to
protect them. The Board has recognized that
employees whose decisionmaking is limited to
the routine discharge of professional duties in
projects to which they have been assigned
cannot be excluded from coverage even if
union membership arguably may involve some
divided loyalty. Only if an employee's activi-
ties fall outside the scope of the duties routine-
ly performed by similarly situated professionals
will he be found aligned with management.
We think these decisions accurately capture
the intent of Congress, and that they provide
an appropriate startingg point for analysis in
cases involving professionals alleged to be
managerial."
The record shows that, while the teachers play a
significant role in the design and implementation of
the Employer's special education services, this role
is limited by guidelines set forth in individual stu-
444 U.S. at 682-683, 686.
Id. at 690.
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dents' IEPs. As noted earlier, the child's parents,
representatives of the school district, and repre-
sentatives of the diagnosing agency, often faculty
or staff members from the approved school to
which the student is likely to be referred, meet to
draw up the IEP, a plan to remedy the child's
learning disability. At the outset of the school year
the entire faculty meets to assign students to an ap-
propriate unit within the school.7 These assign-
ments are based on each student's learning needs,
his or her age, and "socialization ability."8 Each
unit's supervisors and teachers then meet to consid-
er the students' needs and plan the courses for the
next semester. In the example given by Words-
worth's president, Gerald Shatz, the group would
consider one subject, such as reading, first deciding
how many classes this particular group of students
should have. "They may decide that this group of
children needs two [of] what we call redirected
reading activities. One [activity] focuses on com-
prehension, and another on word recognition." The
group then decides who will handle the activities,
looking at both individual teachers' skills and desire
to teach the course. Scheduling and course length
are next considered so that other desired courses
such as math and spelling can be arranged for the
students. The process begins again for all the other
courses to be taught that semester. Teaching meth-
ods to be employed are worked out during these
meetings so that what is being taught in one class is
not being contradicted in another, and so that mat-
ters important to the educational experience are not
needlessly repeated or inadvertently omitted from
the program.
Shatz testified that the supervisors attend each
planning session, relay the program determinations
to the administration, and play an active role in
formulating the program. If a supervisor has reser-
vations about a proposal, those reservations are dis-
closed and resolved at the meeting. Shatz indicated
that supervisors and teachers usually arrive at a
consensus and rarely disagree on matters concern-
ing the program because the supervisors are well
advised and will approve the teachers' decisions if
the decisions fit within health and safety require-
ments and can reasonably be done. If unresolvable
differences arose, Shatz testified that he "[didn't]
think the teachers would prevail in it."
The teachers also collectively and individually
select the materials to be used in the courses. They
examine what the school has and decide whether
to use those materials or order additional ones. Ap-
' The school has five units, two in the upper school and two in the
lower school. The other unit is apparently located at the Wyncote facili-
ty.
a The record does not contain a definition for the term "socialization
ability."
parently any reasonable request for materials will
be honored to the extent that there are funds avail-
able in the budget. Requests for materials or equip-
ment must be given by the teachers to the supervi-
sors who must approve the request and pass it
along to the administration. Shatz testified that
teachers may requisition desks, for example, saying
"I've got bigger children." Teachers fill out a req-
uisition form, which is signed by an administrator
and sent to a purchasing agent who processes the
request. Shatz stated that, if the administrator had
not signed off, the request would not go anywhere.
Teachers carefully monitor each student's prog-
ress and development. Individual teachers decide
whether a student is capable of moving on to the
next lesson in day-to-day work, while all the stu-
dent's teachers determine whether the student is
able to move into the next instructional level. The
benchmark for this decision, as is true of all the
faculty's decisions concerning the student's educa-
tional program, is the student's IEP, and in particu-
lar the goals it sets forth. If a student has met or
exceeded those goals, the student is placed in the
next instructional level. If the goals have not been
met, the teachers may decide the goals were some-
how inappropriate for the student, and that they
should be modified. When questioned whether the
decision to move a student into the next instruc-
tional level is analogous to the decision to promote
a student in a conventional school into the next
grade, Shatz testfied that it is not, and stated, with-
out providing detail, that there may be no applica-
ble analogy.
In addition to deciding who is to be promoted,
the student's teachers also decide when it is time
for a student to graduate or to move out of the
more isolated program offered by Wordsworth into
a regular school program. In making these deci-
sions, they are again guided by the goals and objec-
tives stated in the student's IEP, and consider the
student's age, number of years at Wordsworth, and
level of reading skill attainment. As increasing
numbers of students with more severe learning dis-
abilities have entered the school, the teachers have
reviewed the general criteria considered in decid-
ing whether a student should be graduated or
mainstreamed, and have modified them to reflect
the needs of the changing student population. The
record does not indicate when or how such modifi-
cations occur.
Regarding matriculation, Shatz testified that "the
teachers have some . . . say as to when the child
should disenroll, not necessarily when the child
should enroll." He added that after diagnosing the
child's educational needs and drawing up the IEP,
the "teacher could [say] . ..'But we don't think
442
WORDSWORTH ACADEMY
we can be of any help to this child"' if in their
view Wordsworth would not be of any assistance,
but "most often" the usual state-referral system op-
erates.
The record reveals that nonsupervisory faculty
at Wordsworth have no part in decisions concern-
ing hiring, firing, promotion, or discharge of facul-
ty members or any other employees at the institu-
tion.9 All such matters are decided by the adminis-
tration unaided by the nonsupervisory staff or fac-
ulty. In addition to deciding these crucial ques-
tions, the administration also sets the school calen-
dar; determines the teachers' hours, requiring them
to arrive at 8:30 a.m. and remain until 4 p.m.; and
decides how many periods a day they will be re-
quired to teach.
While it is true that the faculty' ° at Wordsworth
exercise considerable discretion in some matters,
this discretion does not extend beyond the routine
performance of the tasks to which they have been
assigned. The teachers, working with the supervi-
sors and guided by the goals set forth in the IEP,
estimate the students' needs, design a suitable edu-
cational program, and coordinate the details associ-
ated with completing those tasks. They examine
the students' qualifications and disabilities and place
them in an appropriate unit of the school; design
courses suited to the needs of the students in the
units; select appropriate teachers, times, and educa-
tional materials; assess student performance; and
determine the proper direction for the students'
future educational experience. The total package is
geared toward one narrow goal-remedying partic-
ular learning disabilities. The teachers act solely as
professional special educators in creating and im-
plementing this educational package.
Thus, unlike Yeshiva, the teachers at Words-
worth do not make recommendations to the admin-
istration in cases of faculty hiring, tenure, sabatti-
cals, termination, and promotion. Nor is it true that
the teachers make final decisions regarding the ad-
mission and expulsion of individual students. The
teachers offer their professional opinion as to
whether the school can "help the child," but this is
not in any way binding on the administration.
While the faculty at Yeshiva University "decided
questions involving teaching loads, student absence
9 While the physical education department does select employees to
act as coaches and officials at games, this action is closer to making
teaching assignments than it is to "hiring" as contended by the Employer.
Further, the physical education faculty's recommendation of a wage scale
for the faculty members undertaking these extra duties is not enough by
itself to warrant excluding them as managerial employees.
io The record contains no evidence that the psychologists and thera-
pists act beyond the scope of their routine professional duties. Testimony
reveals only that they treat the students and advise the teachers regarding
convenient times to schedule classes, so that they can arrange their ap-
pointments to meet particular students. Accordingly, we find no basis on
which to conclude that these employees are managerial.
policies, tuition and enrollment levels . . ."" the
record reveals no role in these matters for the
teachers at Wordsworth. Also, unlike the faculty in
Yeshiva, the teachers at Wordsworth work jointly
with supervisory personnel to decide on the aca-
demic content of the school's educational program,
and make the decisions under the guidelines estab-
lished by the IEP. Thus, the Employer's teachers
play a diminished role in "determin[ing] . . . the
product to be produced," and play no role in deter-
mining the "terms upon which [the product] will
be offered, and the customers who will be
served."' 2 They are clearly no more than profes-
sional employees whose decisionmaking is limited
to the routine discharge of professional duties in
projects to which they have been assigned.
In light of the foregoing, we find that the teach-
ers, psychologists, and therapists are statutory em-
ployees, and that the following unit is appropriate:
All full-time and regular part-time professional
employees including, but not limiting [sic] to,
teachers, teaching assistants, staff psycholo-
gists, social workers, art therapists, speech
therapists and career counselors employed by
the Employer at its main Linfield and Wyn-
cote subdivisions, excluding all other employ-
ees, including non-professional employees, sub-
stitute teachers, clerical employees, CETA em-
ployees, Title One employees, nurses, mainte-
nance employees, teaching aides, guards and
supervisors as defined in the Act.
Accordingly, we shall direct an election in the
above-described unit. 13
[Direction of Election and Excelsior footnote
omitted from publication.]
CHAIRMAN VAN DE WATER and MEMBER
HUNTER, dissenting:
Contrary to our colleagues in the majority, we
would decline to assert jurisdiction over the Em-
ployer in this case, and would dismiss the petition.
" 444 U.S. at 677.
i2 Id. at 686.
'1 As noted earlier, the PLRB certified a unit similar to the one here
sought. The Board's estabhlshed policy is to accord comity to the elec-
tions and certifications of responsible state government agencies, pro-
vided that the state proceedings reflect the true desires of the affected
employees, election irregularities are not involved, and there has been no
substantial deviation from due process requirements. Further, while the
state agency's unit determination need not conform to Board precedent.
the unit must not be repugnant to the Act. Allegheny General Hospital,
230 NLRB 945 (1977). We decline to grant comitv i. this case because
the unit certified by the PLRB differs from the unit here sought by the
parties. The PLRB certified unit includes all professional employees, and
does not expressly exclude nurses, Title I employees, or teaching aides.
However, the stipulated unit expressly excludes nurses, Title I employees.
and teaching aides. Further. the parties stipulated to exclude certain
named employees who may or may not be covered by the PLRB certifi-
cation.
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In our view, the appropriate test for asserting juris-
diction over an employer such as this is the "inti-
mate connection" test abandoned by the Board in
National Transportation Service, Inc., 240 NLRB
565 (1979). It is clear that the Employer, who par-
ticipates in the State's educational program for ex-
ceptional children, is acting as an arm of the State
in fulfilling the State's statutory duty to provide all
its citizens with the opportunity for an education.
In that capacity, the Employer is so interrelated
with the State that it shares the State's exempt
status. The Employer is subject to extensive and
exacting regulations regarding, among other things,
its faculty, curriculum, and physical facilities. Fail-
ure to meet these standards would result in the loss
of approved status and a concommitant loss of
State funds which constitute the major portion of
the Employer's income.
We agree with the dissenters in National Trans-
portation, supra at 566:
In determining that certain types of enterprises
are not "employers" within the meaning of the
Act, Congress necessarily concluded that sub-
jecting such entities to the strictures of the
statute would not effectuate national labor
policy. It follows that it would also not be in
the best national interest for this Board to
assert jurisdiction over employers who, al-
though not by definition excluded from the
Act's coverage, are nonetheless so closely re-
lated to exempt entities that the policy consid-
erations underlying the latters' exemption also
apply to them.
Accordingly, because application of the "inti-
mate connection" test convinces us that the major-
ity's assertion of jurisdiction in this case is incor-
rect, we respectfully dissent.
444