Father Flanagan's Boys' Home

National Labor Relations Board - Board Decisions

Jul 30, 1976

225 N.L.R.B. 782 (N.L.R.B. 1976)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Father Flanagan's Boys' Home and Boys Town Edu-
cation Association-affiliated with Nebraska State
Education Association & National Education Asso-
ciation , Petitioner . Case 17-RC-7921
July 30, 1976
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on March 8 and 9, 1976, before
Hearing Officer John P. Hurley. Following the hear-
ing, and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Regional Director for Region 17
transferred this case to the National Labor Relations
Board for decision.
Pursuant to the provision of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that no prejudi-
cial error was committed. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer, a Nebraska nonprofit corpora-
tion, operates a residntial facility for the care and
development of homeless boys between the ages of
10 and 19. Within the Home, there are three commu-
nities, each consisting of approximately 14 individual
homes.' At the beginning of 1976, the Home, which
can accommodate 400 children, had 360 children in
residence.
Although Employer's primary objective is to pro-
vide children with longterm care in a family-style sit-
uation, one of the purposes for which Employer was
organized is educational. In this respect, Employer's
facilities include a middle school which is basically
elementary and junior high, a high school, and the
trade school which is concerned primarily with voca-
tional training. All of the Home's residents are in-
volved in an educational program.' In addition, ap-
proximately 140 nonresidents' from the Greater
Omaha area, with backgrounds similar to the Home's
residents, are enrolled in the Home's school system.4
i Within each home, a husband and wife team acts as surrogate patents to
several boys
2 Elery L Phillips, executive deputy director of home care, testified that
all of the residents are required by Nebraska law to be in an educational
process
3 This figure includes 30 full-time students and 110 part-time
During the calendar year of 1974, Employer's total
income exceeded $22 million. Almost all of this fig-
ure was derived from private gifts or bequests and
from investments. In addition, Employer's annual di-
rect out-of-state purchases exceeded $50,000.
Employer contends that it is a charitable noncom-
mercial institution and that, in the exercise of its dis-
cretion, the Board should decline to assert jurisdic-
tion. We find no merit in this contention.
In The Rhode Island Catholic Orphan Asylum,
a/k/a St. Aloysius Home,5 the Board determined that
"The sole basis for declining or asserting jurisdiction
over charitable organizations will not be identical
with those which are not charitable." The Board fur-
ther indicated that "Now, the only basis for declining
jurisdiction over a charitable organization is a find-
ing that its activities do not have sufficient impact on
interstate commerce to warrant the exercise of the
Board's jurisdiction." Since Employer's 1974 income
exceeded $22 million and its annual direct out-of-
state purchases exceed $50,000, it is apparent that
Employer's impact on interstate commerce is sub-
stantial. In so finding we note, moreover, that Em-
ployer meets every discretionary jurisdictional stan-
dard the Board has applied to date.' We conclude,
therefore, that it would effectuate the purposes of the
Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.'
3. A question affecting commerce exists concern-
ing 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.
4. Petitioner seeks to represent a unit of all profes-
sional, certified staff including teachers, media per-
sonnel, librarians, nonsupervisory coordinators, tu-
toring program personnel, coaches, research and
evaluation program personnel, guidance counselors,
and learning resources department personnel. At the
hearing, however, Petitioner asserted that media spe-
cialists and counselor chairmen, classifications seem-
4 The Home, however, does not receive any money from the city, county,
or State
'224 NLRB No 70 (1976) (Member Fanning concurring, Chairman
Murphy and Member Penello dissenting)
6 See Salt & Pepper Nursery School & Kindergarten No 2, 222 NLRB 1295
(1976), Shattuck School, 189 NLRB 886 (1971), Drexel Home, Inc, 182
NLRB 1045 (1970), University Nursing Home, Inc, 168 NLRB 263 (1967),
Siemons Mailing Service, 122 NLRB 81 (1958)
7 At the hearing, Employer refused to stipulate that Petitioner is a labor
organization within the meaning of the Act The record reflects, however,
that Petitioner exists for the purpose of dealing with employers with respect
to rates of pay, hours, and other terms and conditions of employment and
that employees participate in its affairs While it also is apparent that
Petitioner's membership is open to administrative and supervisory person-
nel as well as to nonsupervisors, there is no evidence of improper employer
influence in union affairs or domination of the Union by Employer in viola-
tion of Sec 8(a)(2) of the Act Accordingly, we find that Petitioner, as
designated herein, is a labor organization within the meaning of the Act.
225 NLRB No. 100
FATHER FLANAGAN'S BOYS ' HOME 783
ingly covered by the petition's unit description,
should be excluded from the unit as supervisors. Em-
ployer contends that media specialists and counselor
chairmen are not supervisors within the meaning of
the Act and therefore should be included in the unit.
In addition, contrary to Petitioner, Employer main-
tains that department chairmen are not supervisors
and should be included in the unit.
In support of its position relative to these supervi-
sory issues, Petitioner relies to a great extent on cer-
tain excerpts taken from Employer's written job
descriptions listing the various duties and
responsibilities of individuals in these disputed classi-
fications. Employer asserts that, to the extent the job
descriptions appear to evidence some supervisory
functions, they do not accurately reflect the actual
authority of individuals holding the jobs in question
and that theoretical "paper" power will not make an
individual a supervisor.'
Department chairmen: Employer's five upper divi-
sion 9 teacher department chairmen are certified
teachers with regular teaching loads. The position de-
scription for these individuals indicates that their ba-
sic function is "[t]o provide leadership, coordination,
and innovation to [the] assigned curricular area, so
that each student may derive maximum benefit from
the continuing pursuit of the subject involved." Item
10 of the description states, moreover, that a depart-
ment chairman "[r]ecommends in the recruitment,
screening, hiring, and assists in the training, and as-
signing of personnel."
The record reflects, however, that, with respect to
their fellow teachers, department chairmen do not
have the authority to hire, fire, promote, discipline,
responsibly direct, or effectively recommend such ac-
tion.10 Nor are department chairmen a part of the
8 The job titles department chairmen , counselor chairmen , and media spe-
cialists, were included on a list of nonsupervisory positions and job descrip-
tions submitted by Employer at the hearing Employer also submitted a
separate list for supervisory positions The parties stipulated and we find
that all individuals with the followingjob titles , as specified in the latter list,
are supervisors within the meaning of Sec 2(11) of the Act
Deputy executive director for education, division directors for special
services , upper division and lower division, staff associate for business man-
agement and personnel, staff associate for external affairs , educational spe-
cialist , assistant to director for education , minischool coordinator , educa-
tional specialist , planning specialist , supervisor, academic programs,
supervisor , vocational programs , administrative assistant , vocational pro-
grams , coordinator of athletics , coordinator of learning resources , coordi-
nator of music , and coordinator of student development and program eval-
uation
9 Employer's department of education is divided into three functions, the
lower division , upper division , and division of special services The lower
division includes grades 2 through 9, the upper division includes grades 10
through 12, and special services operates as a support division to the other
two
10 Dr William Lloyd Hawver , deputy executive director for education,
testified that recommendations of department chairmen relative to person-
nel matters would carry no greater weight than recommendations of other
teachers who are not department chairmen Dr Hawver further indicated
that a department chairman 's recommendation would not have the signifi-
cance of that of an administrator
grievance procedure on behalf of Employer. The pri-
mary function distinguishing department chairmen
from other teachers II is their responsibility to devel-
op curriculum. Recommendations of department
chairmen concerning curriculum and related matters,
however, are subject to the approval of the assistant
principal or principal. Based on the foregoing, we
conclude that, in these circumstances, department
chairmen do not possess supervisory authority within
the meaning of Section 2(11) of the Act and we shall
therefore include them in the unit.12
Media specialists: Individuals in this classification
are essentially librarians whose primary function is to
serve as a resource to teachers and students. The po-
sition description states that, inter alia, a media spe-
cialist "[s]upervises supporting staff . . . [d]esignates
duties and trains subordinate staff members . . .
[and] [d]iagnoses the strengths and weaknesses of the
staff . . . ." The record indicates, however, that me-
dia specialists exercise no supervisory authority with
regard to the professional teaching staff. Although it
appears that they are responsible for directing the
work of the nonprofessional staff assigned to the me-
dia services, media specialists spend only a minimal
part of their workday directing nonprofessional per-
sonnel in routine matters such as cataloging and de-
livering messages. 13 Personnel decisions regarding the
nonprofessional employees, however, are made by
the director or supervisor of the division concerned,
based upon an evaluation by the supervisor of per-
sonnel. Where, as here, media specialists exercise su-
pervisory authority over only nonprofessional non-
unit employees, the Board will not exclude them
from a professional unit unless they spend more than
50 percent of their time performing supervisory du-
ties.14 Absent such showing in the record, we con-
clude therefore that media specialists are not supervi-
sors as defined in the Act and we shall include them
in the unit."
11 It also appears that one or more teaching aides work in each depart-
ment The record, however , reflects neither the nature of their duties nor the
extent to which department chairmen direct their work These nonprofes-
sional employees are not part of the unit sought here
12 See Yeshiva University, 221 NLRB 1053 (1975), The Catholic Bishop of
Chicago, a Corporation Sole, 220 NLRB 359 (1975), Florida Southern Col-
lege, 196 NLRB 888 (1972), Fordham University, 193 NLRB 134 (1971)
13 In this vein, it is noteworthy that there are only two nonprofessional
employees involved with the library in the lower division and one nonpro-
fessional employee in the upper division It appears, moreover, that one of
the two media specialists in the upper division does not direct the two
nonprofessional employees at all
14 See New York University, 205 NLRB 4, 8 (1973), Adelphi University, 195
NLRB 639, 645 (1972) (director of motion picture studies)
15 Member Walther agrees with his colleagues that the media specialists
are eligible to vote. He does so , however, not upon an application of the
Adelpht 50-percent rule , but rather upon the basis that the individuals in
question do not exercise supervisory authority within the meaning of the
Act In his judgment , the routine direction of three employees noted by his
colleagues is an insufficient basis upon which to predicate a supervisory
finding
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counselor chairmen: There are three lower division
counselors and four upper division counselors, in-
cluding a chairman in each division. Counselor
chairmen are certificated teachers who spend 75 to
80 percent of their time counseling students on mat-
ters relating to class schedules, career opportunities,
and further education. Unlike other counselors, they
have a duty to explain the role of the counselors to
students and teachers and are responsible for orga-
nizing the counseling program.
The position description suggests that counselor
chairmen "Develop and monitor the scope of the
school counselor's role . . . [s]upervise all services
and functions provided by school counselors .. .
[and] [s]upervise assigned staff and perform staff
evaluations ... ." Dr. Hawver, deputy executive di-
rector of education, testified that the position de-
scription does not accurately describe the actual role
of the counselor chairmen. In this vein, the record
reflects that, with respect to other teachers, counselor
chairmen do not have any authority to hire, fire, pro-
mote, discipline, or effectively recommend such ac-
tion. Nor do counselor chairmen supervise other
counselors. This authority reposes in the director of
special services, Dr. McGinnis. Accordingly, we find
that counselor chairmen are not supervisors within
the meaning of the Act and we shall include them in
the unit.
Based upon the foregoing and the entire record, we
find that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(c) of the Act:
All professional certified staff including depart-
ment chairmen, teachers, media specialists, me-
dia personnel, librarians, nonsupervisory coordi-
nators, tutoring program personnel, coaches,
research and evaluation program personnel,
counselor chairmen, guidance counselors, and
learning resources department personnel, but
excluding the deputy director of education, di-
rectors, administrative assistants, staff associ-
ates, all other employees, guards, and supervi-
sors as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.[