Workshop, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1977

233 N.L.R.B. 237 (N.L.R.B. 1977)

THE WORKSHOP, INCORPORATED
The Workshop, Incorporated and Local 200, General
Service Employees' Union, S.E.I.U., AFL-CIO
Petitioner. Case 3-RC-6900
November 4, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 6, 1977, the Regional Director for Region
3 issued a Decision and Order in the above-entitled
proceeding in which he dismissed the petition on the
ground that the Employer is not an employer within
the meaning of Section 2(2) of the Act because it
performs services which are intimately connected
with the exempted operations of several governmen-
tal entities. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Petitioner
filed a timely request for review of the Regional
Director's decision on the grounds, inter alia, that he
made erroneous findings of fact and departed from
officially reported Board precedent. By telegraphic
order dated July 5, 1977, the request for review was
granted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and finds
that a question affecting commerce exists concerning
the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act for the following
reasons:
The Employer is a not-for-profit corporation
engaged in the operation of a sheltered workshop
and rehabilitation facility in Menands, New York. At
the hearing held on April 20, 1977, the Employer and
the Petitioner were in agreement as to the unit
placement of employees; ' the only disagreement was
whether the Employer was exempt from Board
jurisdiction.2
The Employer asserted that it was exempt from
Board jurisdiction because it provided services
In its petition, the Petitioner sought a single unit; however, at the
hearing the Petitioner and the Employer agreed that certain employees were
professional employees and were therefore entitled to a separate vote, and
the parties entered into a stipulation concerning the unit placement and
exclusion of all employee categories. Clients of the Employer are not
included in the units stipulated to be appropriate.
2 At the hearing. and again in its request for review, the Petitioner
objected to the introduction of evidence concerning the alleged connection
between the Employer's operations and the functions of various governmen-
tal entities, based on the Petitioner's position that such evidence was
233 NLRB No. 27
authorized, encouraged, and funded by units of state
and local government, including services to children
from local school districts. The Regional Director
agreed that the Employer was exempt, both because
of the performance of functions authorized by state
statute and because of its services to handicapped
junior and senior high school students, and did not
reach the question of whether the State or one of its
subdivisions exercised such substantial control over
the Employer's labor relations as to require that the
Board decline jurisdiction. In its request for review,
the Petitioner contended that the record and Board
precedent did not support the Regional Director's
conclusions. We find merit in the Petitioner's
contention.
The Employer provides counseling, education,
vocational training, employment, and placement
services for its clients, the majority of whom will
always require some sort of sheltered environment.
An average of 300-325 clients are served daily, of
whom approximately 60 percent are mentally retard-
ed, 20 percent have psychiatric disorders as their
primary disability, and the remainder have some type
of physical impairment. An unspecified number of
the Employer's clients are students in junior and
senior high schools in the area who spend half of
their schoolday in the Employer's workshop program
as a supplement to their education. Many clients are
wards of the State or receive some form of public
assistance. The Employer does not provide housing;
clients may live with families, in group homes or
halfway houses, or in other institutions. Some clients
are participants in a work-release program from a
nearby state correctional facility and are bused to
and from the Employer's facility daily. In the past,
the Employer has also served patients in United
States Veterans Administration hospitals, as well as
military dependents.
Approximately 60 percent of the Employer's 1976
budget of around $1.2 million came from payments
from various governmental entities, including, inter
alia, the New York State Education Department's
Office of Vocational Rehabilitation, the Albany and
Rensselaer County Community Mental Health
Boards, and the New York State Department of
Correction. In the past, the Employer has also
received funds from several Federal agencies. Ap-
proximately $500,000 came from the Employer's
irrelevant once it had been established that the Employer met the Board's
commerce standards. We find that the evidence was properly admitted, as
an enterprise which is "engaged in commerce" may nevertheless be exempt
from Board jurisdiction by virtue of its relationship with an exempt
governmental entity; see, e.g.. MTL Inc., 223 NLRB 1071 (1976). As
expressed in fn. 6 of MTL, Inc., Chairman Fanning believes that, in
assessing an enterprise's relationship with an exempt institution, the focus
should be on whether the enterprise has retained sufficient control over the
employment conditions of its employees so that meaningful bargaining can
take place.
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts with various private and governmental
customers for whom clients performed services in the
sheltered workshop program, and some funds are
received from the operation of the cafeteria in the
Employer's building and from voluntary contribu-
tions to the United Fund which are channeled to the
Employer. The Employer is exempt from Federal
income taxes as an organization operating exclusive-
ly for an educational purpose.
Some of the payments which the Employer receives
from governmental entities come in the form of
grants for specific purposes. For example, the
Employer received construction grants for its present
facility from the United States Department of
Health, Education and Welfare and the New York
State Department of Mental Hygiene, and the
salaries of some staff members are partially reim-
bursed by grants for those positions. Other income
from governmental sources comes in the form of fees
for service, based on the amount and type of services
provided by the Employer to each individual client
for whom a particular agency is responsible.
Based on the above, we find that the Employer's
operations are not so intimately connected with an
exempted governmental function as to warrant
declining jurisdiction. In reaching his conclusion to
the contrary, the Regional Director relied largely on
the exemption which was found in MTL, Inc., 223
NLRB 1071 (1976). However, in our view that case is
distinguishable in that there the employer was found
to be so closely controlled by the city and county of
Honolulu as to be an instrumentality of the city.
Therefore, while in that case as in the instant case the
function performed was authorized by statute, the
extensive control on which the Board relied in MTL,
supra, is simply not present here. Rather, the
Employer, while performing certain functions, deter-
mines for itself what level of services it will provide
(and thereby sets the fees which will be paid to it for
its services). The role of the State is limited to
periodic inspections and audits to insure that the
Employer meets minimum standards for the level of
reimbursement which the Employer receives (there
are four levels of reimbursement provided by the
Office of Vocational Rehabilition for evaluation,
training, and placement, depending on the ratio of
qualified staff members to clients).
In our opinion, the record also does not indicate
such pervasive control over labor relations as to
require a finding that the Employer would be exempt
from Board jurisdiction due to inability on the
Employer's part to engage in meaningful collective
3 See Nichols Sanitation, Inc., 230 NLRB 834 (1977); JA-CE Company,
Inc., 205 NLRB 578 (1973).
4 See, e.g.. Mitchell School. Incorporated and Main Line Da>' School,
Incorporated, 224 NLRB 1017 (1976). Overbrook Schoolfor the Blind. 213
bargaining. Salary reimbursements for specifically
funded positions are subject to a maximum set by the
funding agencies, but the Employer may pay higher
salaries out of its other sources of income, and
salaries of other employees do not appear to be
regulated. Even as to grant employees, agencies are
not involved in supervision, evaluation, assignment,
discipline, or most other conditions of employment.
They are involved in employee transfers only to the
extent that they could veto a transfer into a funded
position if the employee involved did not have the
qualifications for that position. Agencies can suggest
that the Employer institute certain employee benefit
programs, but with the exception of benefits required
of all employers (e.g., workmen's compensation
insurance) no governmental agency can require that
the Employer institute any particular program. The
State has only an indirect influence on the hours of
work of the Employer's staff members; the sheltered
employment program requires that clients work at
least 5 hours per day for at least 40 days over a 3-
month period in order for the Employer to receive
reimbursement, but the specific hours and days
during which this will take place (and therefore
during which staff members must be on the job) are
set by the Employer.
In light of the foregoing, we conclude that the
limited oversight by state and local governmental
agencies, designed to assure a minimum quality of
service for the Employer's clients, does not deprive
the Employer of its effective control over labor
relations. The Employer retains virtually complete
control over matters affecting conditions of employ-
ment and is therefore capable of engaging in
meaningful collective bargaining. 3
In deciding to assert jurisdiction over the Employ-
er, we are not unmindful that it provides services to
local junior and senior high school students, which
the school systems are apparently required to
provide. But, unlike cases involving services to school
children in which the Board has found that it lacks
jurisdiction,4 the Employer here provides services to
such school children only on a part-time basis, and
the children continue to attend their regularly
assigned schools during the portion of the day in
which they are not at the Employer's facility.
Additionally, services to school-age persons consti-
tute only a portion of the services rendered by the
Employer. Finally, unlike the basic education pro-
vided in the cited cases, the services provided by the
Employer are primarily in the vocational training
area.
NLRB 511 (1974); and Pennsylvania Schoolfor the Deaf, 213 NLRB 513
(1974), on which the Regional Director relied. For reasons expressed in fn. 9
of Austin Developmental Center, Inc., 226 NLRB 134 (1976). Chairman
Fanning agrees that these cases are inapposite to this area.
238
THE WORKSHOP, INCORPORATED
We therefore find that the following employees of
the Employer may constitute a unit appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act: 5
All regular full-time and regular part-time em-
ployees of the Employer, including rehabilitation
counselors, social worker, vocational evaluators,
placement counselor, business teacher, registered
nurse, hourly supervisors, teacher's aide, mainte-
nance aide, warehouse aide, truckdriver, book-
keepers, secretaries, and receptionist; but exclud-
ing the sales engineer, general production supervi-
sor, salaried production supervisor, supervisor of
food services, warehouse supervisor, maintenance
supervisor, executive director, assistant executive
director, director of professional services, director
of production and training, office manager,
assistant office manager, assistant production
manager, administrative assistant, administrative
secretary, production control supervisors, and all
managerial employees, confidential employees,
guards, and supervisors as defined in the Act.
The unit set out above includes professional and
nonprofessional employees. However, the Board is
prohibited by Section 9(b)(1) of the Act from
including professional employees in a unit with
nonprofessionals unless a majority of the profession-
al employees votes for inclusion in such a unit.
Accordingly, we must ascertain the desires of the
professional employees as to inclusion in a unit with
nonprofessional employees.
We shall therefore direct separate elections in the
following voting groups:
Voting Group A: All regular full-time and regular
part-time professional employees of the Employ-
er, including rehabilitation counselors, social
worker, vocational evaluators, placement counsel-
or, business teacher, and registered nurse; but
excluding all nonprofessional employees, the sales
engineer, general production supervisor, salaried
production supervisors, supervisor of food ser-
vices, warehouse supervisor, maintenance super-
visor, executive director, assistant executive direc-
tor, director of professional services, director of
production and training, office manager, assistant
office manager, assistant production manager,
administrative assistant, administrative secretary,
production control supervisors, and all manageri-
al employees, confidential employees, guards, and
supervisors as defined in the Act.
I The units as set forth herein are in accord with the stipulations of the
parties as to the status of the persons employed by the Employer.
Voting Group B: All regular full-time and regular
part-time employees of the Employer, including
hourly supervisors, teacher's aide, maintenance
aide, warehouse aide, truckdriver, bookkeepers,
secretaries, and receptionist; but excluding all
professional employees, the sales engineer, gener-
al production supervisor, salaried production
supervisors, supervisor of food services, ware-
house supervisor, maintenance supervisor, execu-
tive director, assistant executive director, director
of professional services, director of production
and training, office manager, assistant office
manager, assistant production manager, adminis-
trative assistant, administrative secretary, produc-
tion control supervisors, and all managerial
employees, confidential employees, guards, and
supervisors as defined in the Act.
The employees in Voting Group A will be asked
two questions on their ballots:
(1) Do you desire the professional employees to be
included in a unit composed of all employees of the
Employer for the purposes of collective bargaining?
(2) Do you desire to be represented for the
purposes of collective bargaining by Local 200,
General Service Employees' Union, S.E.I.U., AFL-
CIO?
If a majority of the professional employees in
Voting Group A vote "yes" to the first question,
indicating their wish to be included in a unit with
nonprofessional employees, they will be so included.
Their votes on the second question will then be
counted together with the votes of the nonprofession-
al Voting Group B to determine whether or not the
employees in the whole unit wish to be represented
by the Petitioner. If, on the other hand, a majority of
professional employees in Voting Group A vote
against inclusion, they will not be included with the
nonprofessional employees. Their votes on the
second question will then be separately counted to
determine whether or not they wish to be represented
by the Petitioner.
The employees in the nonprofessional Voting
Group B will be polled to determine whether or not
they wish to be represented by the Petitioner.
We now make the following findings in regard to
the appropriate unit:
1. If a majority of the professional employees
vote for inclusion in the unit with nonprofessional
employees, we find that the following will constitute
a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All regular full-time and regular part-time profes-
sional and nonprofessional employees of the
Employer in Voting Groups A and B; excluding
managerial employees, confidential employees,
guards, and supervisors as defined in the Act.
2. If a majority of the professional employees do
not vote for inclusion in the unit with nonprofession-
al employees, we find that the following two groups
of employees will constitute separate units appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All regular full-time and regular part-time profes-
sional employees of the Employer in Voting
Group A; excluding managerial employees, confi-
dential employees, guards, and supervisors as
defined in the Act.
All regular full-time and regular part-time non-
professional employees of the Employer in Voting
Group B; excluding managerial employees, confi-
dential employees, guards, and supervisors as
defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
MEMBER MURPHY, dissenting:
In disagreement with my colleagues, I would find
that the assertion of jurisdiction over this Employer
is unwarranted for the reasons stated in my dissent in
Austin Developmental Center, Inc., 226 NLRB 134
(1976). In my opinion, providing state-mandated
education to physically and mentally handicapped
school children renders the Employer essentially an
adjunct to the public school system.
As it appears that the staff which provides the
Employer's school-related services is not separate
from the remainder of the Employer's staff, it is
impossible to separate this portion of the Employer's
services from its other operations as the Board did in
asserting jurisdiction over nonschool-related charter
bus services in Roesch Lines, Inc., 224 NLRB 203
(1976). It is therefore unnecessary to decide whether
other factors relied on by the Regional Director
would be sufficient to prevent the assertion of Board
jurisdiction over the remainder of the Employer's
operation.
Accordingly, I would affirm the Regional Direc-
tor's Decision and Order and dismiss the petition.
240