Kinder-Care Learning Centers

National Labor Relations Board - Board DecisionsFeb 29, 1984

268 N.L.R.B. 1350 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mini-Skool, Ltd., a Corporation of Canada, d/b/a Kinder-Care Learning Centers and Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 32-RC-1788 29 February 1984 DECISION AND REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 31 March 1983 the Regional Director for Region 32 issued a Decision and Direction of Elec- tion in this proceeding in which he found appropri- ate the Petitioner's requested unit of all employees at the Employer's Fremont, California center. He rejected the Employer's contentions that the small- est appropriate unit must include all of its employ- ees, excluding cooks, at all five of its centers locat- ed in its Northern California district, and that, if cooks were included, a self-determination election would be required as the unit would include both professional and nonprofessionals. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Employer filed a timely request for review of the Regional Director's decision on the ground that, in finding the petitioned-for unit appropriate, his deci- sion represents a departure from officially reported Board precedent and is clearly erroneous on the record. By telegraphic order dated 2 May 1983, the National Labor Relations Board granted the Em- ployer's request for review. While the request was pending, the election was conducted on 29 April 1983, as scheduled, in the single location unit found appropriate by the Regional Director. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case and makes the following findings: The Employer, a Canadian corporation, operates over 700 day care centers in the United States and Canada,' with corporate headquarters located in I Although the parties stipulated that the Employer is engaged in com- merce within the meaning of the Act and that it is subject to the Board's jurisdiction, the only supporting record evidence is a further stipulation that during the past 12 months the Employer at its Fremont center pur- chased and received goods in excess of $50,000 directly from suppliers located outside the State of California. This clearly satisfies the Board's statutory jurisdiction but does not approach the Board's discretionary standard of $250,000 in gross annual revenues for day care centers. Salt & Pepper Nursery School, 222 NLRB 1295 (1976); Living & Learning Centers, 251 NLRB 284 (1980), enfd. 652 F.2d 209 (Ist. Cir 1981). However, the record clearly establishes that the Employer operates over 700 day care centers throughout the United States and Canada and and that in 1980 it purchased the Living & Learning Centers, which was found by the Board in the above-cited case to have a gross annual income in excess of 268 NLRB No. 204 Montgomery, Alabama. The Employer has geo- graphically divided its operations into various zones, each encompassing a number of States. The Employer's southwest zone, containing approxi- mately 91 centers, covers 6 Southwestern States in- cluding California, which has approximately 33 centers divided into 3 districts. The Northern Cali- fornia district, Distict 3, contains five day care cen- ters: two located in San Jose, Foxworthy, and Albany Drive, and one each in Salinas, Santa Clara, and Fremont. A district manager for District 3 maintains an office at the Foxworthy Center in San Jose, which is approximately 50 miles from Sa- linas, 30-35 miles from Fremont, 10 miles from Santa Clara, and approximately 8 miles from Albany, the other San Jose center. The manage- ment staff at each center consists of a center direc- tor and assistant director. There are also approxi- mately 58 teachers at the 5 centers: 14 at Fremont, 16 at Foxworthy, 15 at Santa Clara, 9 at Salinas, and 3 at Albany. Each center also has one cook. There is no prior collective-bargaining history for any of the Employer's employees. 2 The Employer operates year-round custodial and educational care for children between the ages of 6 months to 12 years. The Employer's goal is to pro- vide the very best in early childhood educational service and to this end its corporate headquarters in Montgomery, Alabama, is responsible for pre- paring a uniform curriculum which must be fol- lowed by teachers at all of the Employer's centers throughout the United States. This corporatewide, standardized curriculum includes various reading readiness and math programs as well as a common classroom theme for each particular week and month of the year. In addition, each center uses the same type of equipment, has the same classroom setup, uses the same lesson plan guides, follows the same menus, uses identical financial and purchase order forms, and all teachers wear identical smocks. There are also uniform personnel policies covering, inter alia, employee benefits, evaluation, $250,000. There is no evidence in the record that such income has since diminished. Based on the above, we find that the Employer's operations affect commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. Based on these facts, Member Hunter finds that the assertion of juris- diction appears warranted here. He also notes that no party has raised this issue. Chairman Dotson expresses no opinion as to the assertion of jurisdiction in this case. I We note, as mentioned above in fn. 1, that in 1980 the Employer pur- chased the day care facilities involved in Living and Learning Centers, above. Although the employer in that case was found to have violated Sec. 8(aX5) of the Act and was ordered to bargain with the certified rep- resentative of its employees at its Waltham, Massachusetts day care center, there is no record evidence that the Employer ever negotiated a contract with the employees' representative and thus there is no previous collective-bargaining history involving the Employer's employees. 1350 KINDER-CARE LEARNING CENTERS job descriptions, and policies and procedures which are set forth in the employee handbook. Within the Employer's District 3, employee pay scales are identical and seniority and benefits can be transferred from one center to another. Layoffs, however, are based on center, not district seniority; but a laid-off teacher is entitled to the first avail- able opening at another center. There are no bump- ing rights. Although each center arranges for its own janitorial service, the district manager pro- vides for all maintenance and repair at the five cen- ters. All center directors attend a meeting with the district managers once a month. The Employer is budgeted on a districtwide basis with the district manager maintaining a consolidated profit and loss statement. The district manager also audits all five centers' financial books and petty cash, reviews weekly financial reports submitted by each center, approves all invoices, and submits financial and en- rollment reports to the corporate headquarters. The district manager hires all directors and as- sistant directors. The center directors interview prospective teacher applicants and have the power to hire and fire teachers in conjunction with the district manager. The district manager routinely conducts a second interview for new hires, al- though not in every case. Assistant directors may also conduct a second interview; occasionally, these second interviews are done by directors at other centers, especially if the director at the un- derstaffed center is new. Two interviews are re- quired and sometimes applicants have more than two. In all cases, no teacher may be hired without the approval of the district manager who has the final say. Moreover, the beginning salary for a teacher depends on experience and the exact amount is within the discretion of the district man- ager. Directors, however, hire and fire cooks with- out district approval. The Employer's standard evaluation system de- termines teacher wage increases. The center direc- tors, with the aid of the assistant directors and head teachers, evaluate each teacher by assigning from 1 to 5 points to approximately 85 questions. Center directors make no recommendations with respect to whether a wage increase should be given. Instead, the district manager analyzes the evaluation submitted and totals the number of points, which determines the amount of the raise. The district manager usually accepts the point cal- culation submitted, but on occasion has requested the center director to recalculate the points. The center director and district manager train newly hired teachers with respect to job functions and instruct them regarding the employee hand- book; the center director conducts workshops for teachers and holds monthly staff meetings. The center director also schedules work and approves time off. Employee grievances are resolved initially by the center director or the assistant director. However, a teacher may appeal any decision to the district manager and, if still dissatisfied, to the zone manager. At least once a week there is interchange be- tween the five centers, either by a teacher, a substi- tute, or by a center director or assistant director. Transfers of teachers are on an "as needed" basis. Thus, if enrollment drops at one center, a teacher is assigned to another center, either temporaily or permanently. Teachers are also temporarily trans- ferred between centers when illness occurs. For ex- ample, on one occasion when five teachers were out ill, five teachers from another center and sub- stitutes from two other centers were transferred to the center that was understaffed. Also, each center maintains a substitute list composed of former em- ployees and persons wishing to work as substitutes, which includes the names of persons who have in- dicated a willingness to work at more than one lo- cation. If the substitute list at any given center be- comes exhausted, the center director will call the other centers and draw from their lists. Thus, tem- porary teacher vacancies are normally filled from a center's substitute list, or the substitute list of an- other center, or the staff at another center. The Employer also utilizes a "mini task force," a team composed of personnel from various centers who goes with the district manager to a particular center to help teachers set up classrooms and make out lesson plans. Usually, the task force is made up of the center directors and at least one or two teachers. In addition, the centers often take field trips, particularly in the summer. The Fremont center and other centers have combined to make these field trips. In particular, the Fremont and Foxworthy centers usually take a summer field trip together to Elizabeth for a picnic and watermelon- eating contest. This evidence clearly shows that the Employer is administratively highly centralized and that its center directors have only limited autonomy over labor relations at their respective centers. Thus, the district manager is directly involved in the hiring process and no teacher may be hired without the district manager's approval; a teacher's beginning salary is within the discretion of the district manag- er; while center directors may initially resolve em- ployee grievances, all decisions are appealable; and although the evaluations filled out by the center di- rectors give a numerical rating, they carry no rec- ommendations, and the rating, while usually ac- cepted by the district manager, is sometimes re- 1351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turned for recalculation. In addition, contact and interchange involving staff members among the Employer's five centers occurs regularly, and tem- porary teacher vacancies are normally filled, in part, with teachers or substitutes from other cen- ters. Accordingly, based on these factors, we find that the single location unit sought by the Petition- er is inappropriate. 3 Instead, as the Employer's a Living & Learning Centers, above, wherein the court approved the Board's finding that a bargaining unit composed of employees at one of the employer's day care centers was appropriate is distinguishable. In Living & Learning, unlike here, the local director had independent author- ity to hire and fire teachers, to recommend wage increases, and to impose discipline. Moreover, in that case there was a complete absence of tempo- rary interchange; permanent transfers involved only 6 percent of all Mas- sachusetts employees; and there was only minimal contact between teach- ing staffs as statewide workshops were not regularly scheduled and there was no requirement to attend. Also, the unit claimed appropriate by the Employer in Living & Learning consisted of 29 day care centers with 400 employees and thus was considerably larger than the unit proposed by the Employer here-5 centers with 58 employees. centers are administratively grouped into districts under the supervision of a district manager with considerable contact and interchange among the centers, we find that a districtwide unit would con- stitute the smallest appropriate unit for the pur- poses of collective bargaining. As such unit is con- siderably larger than the unit sought, involves mul- tilocations, and the Petitioner has not indicated that it would go to an election in any unit other than the one petitioned for, we shall dismiss the peti- tion. 4 ORDER The election conducted on 29 April 1983 is va- cated, and the petition is dismissed. I As we are dismissing the instant petition, we need not reach the issues raised by the Employer with respect to the inclusion of cooks in the unit found appropriate. 1352