Ohio Public Interest Campaign

National Labor Relations Board - Board Decisions

Jun 18, 1987

284 N.L.R.B. 281 (N.L.R.B. 1987)

OHIO PUBLIC INTEREST CAMPAIGN 281
Ohio Public Interest Campaign and Mark Kaiser.
Case 8-CA-17073
18 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 31 May 1985 Administrative Law Judge
Robert G. Romano issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
response to the General Counsel's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order.
We agree with the judge that the Board should
decline to assert jurisdiction in this particular pro-
ceeding. In dismissing the complaint, however, we
do not adopt his decision to the extent that it can
be read to indicate that the nature of the Respond-
ent's activity, i.e„ the fact that it is a nonprofit cor-
poration engaged in consumer lobbying, is a basis
for declining to assert jurisdiction. i The Board has
taken the position that it "will no longer distinguish
between profit and nonprofit organizations for ju-
risdictional purposes," Lighthouse for the Blind of
Houston, 244 NLRB 1144, 1145 (1979), and that
"the only basis for declining jurisdiction over a
charitable organization is a finding that its activities
do not have a sufficient impact on interstate com-
merce to warrant the exercise of the Board's juris-
diction." St. Aloysius Home, 224 NLRB 1344, 1345
(1976). See also Long Stretch Youth Home, 280
NLRB 678 (1986). Although the Respondent is not
a "charitable" organization, it is a nonprofit organi-
zation, and the same standard is applicable to it.
Applying that standard, we are satisfied that on
the record the operations of the Respondent have
not been shown to have such an impact on com-
merce as to warrant our assertion of jurisdiction in
this particular case. In this regard, we emphasize
that the nature of the Respondent's operations and
its impact appear to be almost, if not exclusively,
limited to matters concerning issues of public con-
cern affecting Ohio residents and without a general
impact on interstate commerce. Accordingly, and
1 Chairman Dotson would decline to exercise jurisdiction over non-
profit, charitable institutions except when a particular class of these insti-
tutions has a substantial, demonstrated impact on interstate commerce.
See his dissenting opinions in Salvation Army of Massachusetts, 271 NLRB
195 (1984), and Alan Short Center, 267 NLRB 886 (1983). He finds the
same standard applicable here and agrees that the Board should not assert
jurisdiction See also the dissenting opinion in Imperial House Condomini-
um, 279 NLRB 1225 (1986).
because we have not previously asserted jurisdic-
tion over this class of employers, 2 we decline to
assert jurisdiction herein.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
2 Member Johansen notes that the Board asserted jurisdiction in Ohio
State Legal Services Assn, 239 NLRB 594 (1978), over an entity that, inter
aim, engaged in lobbying
Mary G Balazs, Esq., for the General Counsel.
Frank P. Giaimo, Esq. (Gaines & Stern), of Cleveland,
Ohio, for the Respondent Employer.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. This
matter was heard before me on 16 and 17 August 1984.1
The charge in Case 8-CA-17073 was filed on 4 October
1983 against Ohio Public Interest Campaign (OPIC, or
Respondent Employer) by Mark Kaiser, an individual
charging party (Kaiser). Complaint thereon issued on 30
November 1983. The complaint alleges that by certain of
its supervisors and agents Respondent Employer has un-
lawfully interrogated employees, on three occasions in
September 1983, in violation of Section 8(a)(1) of the
Act; and on two occasions in late September 1983 issued
discriminatory warnings to Kaiser, and on 4 October
1983 discriminatorily discharged Kaiser, all in violation
of Section 8(a)(3) and (1) of the Act. In addition to issues
presented by Employer's denial of commission of any of
the above-alleged unfair labor practices, Employer's con-
test of Board jurisdiction over it as an Employer en-
gaged in, or affecting commerce is a major and threshold
issue in this case.
On the entire record, from my observation of the de-
meanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent
about 9 October, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. Background
1. Complaint and answer
The complaint alleges and Respondent by answer filed
9 December 1983, as amended at hearing, admits that
OPIC is a nonprofit Ohio corporation with an office and
place of business in Cleveland, Ohio; that OPIC is en-
gaged in providing consumer lobby services to Ohio
consumers; that OPIC annually, in the course and con-
duct of its business operations had derived gross reve-
nues in excess of $1 million; and that OPIC has received
1 All dates are in 1984 unless otherwise stated
284 NLRB No. 31
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
goods and services valued in excess of $36,000 directly
from points located outside the State of Ohio. The com-
plaint further alleges, and Employer nonetheless contin-
ues to deny that OPIC is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Facts
a. Origin and development
Ira Arlook is executive director of OPIC, and he has
held that position since Respondent's incorporation in
July 1976. As executive director, Arlook has day-to-day
responsibility for the entire operation. Final authority in
OPIC, however, resides in its board of directors of
which Arlook is a member and chairperson. Arlook has
generally described OPIC, a nonprofit corporation, as a
citizen's political organization, engaging in a range of ac-
tivities that focus on economic, public health, and envi-
ronmental issues, which are important to the organiza-
tion. However an underlying basic purpose of OPIC is
also to make it possible, broadly for everyone, but par-
ticularly for low- and moderate-income individuals to
participate in economic and political decisions.
Arlook has explained the origin of OPIC. In late
spring and early summer 1975, Arlook began a series of
communications with organizational leaders of unions
and with senior citizens, neighborhood, environmental,
and minority groups about a perceived need for a coali-
tion organization on such issues as corporate responsibil-
ities with regard to plant closings; fairness in tax struc-
ture and systems; a range of energy issues (including de-
control of natural gas, utility regulation, and the impact
of energy and utility prices on utilities); and the effect of
toxic substances and hazardous wastes on the lives of in-
dividuals in their jobs and communities. An initial office
was opened in Cleveland, Ohio, in early 1976, with three
to four area offices being opened in the first year. Ac-
cording to Arlook, OPIC presently conducts its oper-
ations in all of the major metropolitan areas, and in some
rural areas, in the State of Ohio. The record reveals
OPIC currently has such offices in Cleveland, and area
offices in Akrdn-Canton, Warren-Youngstown, Dayton,
Cincinnati, Toledo, Columbus; and an Appalachian office
at Athens, Ohio.
OPIC's 1976 charter and its amendments in 1982 and
1984 have been placed in evidence by Respondent. Over
the years OPIC's operations have grown from the point
of being a small organization, able to address but one
issue, to an ability to handle two or three issues in the
State, both well, and at the same time. OPIC's twice
amended charter supports a fmding that OPIC passed
from an informational and educational organization of es-
sentially public education generally, and initially specifi-
cally addressing plant closing and industrial job loss
issues—but with a then disavowal of any intended corpo-
rate participation or intervention in any political cam-
paign on behalf of, or in opposition to, any candidate for
public office—to, in 1982, charter addressment of that
subject and other specific issues of tax reform, energy,
and toxic substance issues, as well as then becoming gen-
erally involved in related electoral work, research, and
policy information, and grass roots lobbying. The most
recent 1984 charter amendments, as summarized by
Arlook, were designed so that OPIC would not be limit-
ed in any way concerning the scope of activities it could
engage in, including more recently, inter alia, a range of
farm foreclosure issues that Arlook described as having
come up as a result of recent tightening of farm credit
systems.
During the initial period of 1976 through 1980-1981,
individuals joined as a member of other organizations
through representatives of those organizations but with
OPIC encouraging individual membership in OPIC. As
the organization developed, and particularly as OPIC's
canvass operation began to grow, at one point in 1981
growing very rapidly, OPIC's expanding canvass staff
came in contact more and more with unaffiliated individ-
uals, to the point where OPIC's own individual member-
ship has now grown very substantial directly through the
canvass operations.
b. OPIC's declared purposes, directorship, and
membership as evidenced by current charter and
bylaws
OPIC's articles of incorporation were originally de-
clared by Ira Arlook (and two other incorporators) on
19 July 1976, and certified by the State of Ohio on 30
July 1976. They were certified amended on 12 October
1982, and as further and last certified amended on 4 May
1984, insofar as pertinent, currently provide:
THIRD: The purposes for which the corporation
is formed are to promote social welfare by the fol-
lowing means:
A. Promoting cooperation and understanding be-
tween and among all citizens of Ohio, with special
emphasis on low and moderate income people, by
addressing issues of common concern in a collec-
tive, democratic, and peaceful manner;
B. Exploring ways and means, voluntary and
governmental, for solving problems and meeting
human needs,
C. Promoting philanthropy through
i. assisting citizens in resisting and overcoming
community deterioration,
ii. increasing community cohesion,
relieving the poor, distressed, and indigent,
iv. educating citizens and communities to indi-
vidual rights and responsibilities,
v. fighting of racial, religious, and sexual dis-
crimination in any form.
FOURTH: The corporation shall have one or more
classes of members, with such voting rights as may
be provided in the regulations, who shall select the
members of the Board of Trustees.
OPIC's bylaws (encompassing aforementioned regula-
tions) as last amended on 19 April 1984 insofar as addi-
tionally pertinent on corporate purposes provides, in arti-
cle I,
OHIO PUBLIC INTEREST CAMPAIGN 283
Section 1.01 . . . .
As such, no part of its net earning shall inure to
the benefit of officers, directors or other private
persons, except that it is authorized and empowered
to pay reasonable compensation for services ren-
dered and otherwise to make payments and distribu-
tions in furtherance of its informational and educa-
tion purposes; and (c) [sic] it shall take only actions
permitted an organization exempt from taxation
under section 501(c)(4) of the Internal Revenue
Code and pertinent Income Tax Regulations, as
amended and as they may be amended.
The bylaws presently make provision for three classes
of members, viz, organizational, regular, and major sup-
porting members. Any organization supporting OPIC's
purposes and goals qualifies organizational membership
on election by board of directors and payment of current
dues. Organizational members elect 20 percent of the
board of directors; vote on such matters as the board of
directors provide; and are to advise the board of direc-
tors on OPIC's programs and policies. Individuals who
support OPIC also qualify for membership on signing a
statement to that effect and paying current dues. They,
as regular members, elect 20 percent of the board of di-
rectors and have similar voting and advice rights. Major
supporting members are regular members and representa-
tives of organizational members who, on a continuing
basis, contribute extraordinary services to OPIC and
who are certified (and decertified) by a vote of two-
thirds of the board of directors. Included are those
giving OPIC extraordinary fmancial assistance, which is
defmed as a contribution of $500 in cash, securities,
goods, or services; or giving OPIC qualifying "Other ex-
traordinary services," the latter essentially meaning con-
tribution of time and talent, in case of nonstaff members
substantially beyond what is normally expected of regu-
lar members. In case of OPIC employees and consultants
the same means essentially contribution of extraordinary
expertise, effort, or at compensation substantially below
market value. Major supporting members elect 60 per-
cent of the board of directors (no more than half of
whom shall be employees of, or otherwise compensated
for services by OPIC); and such members have the same
voting and advice rights. Voting of members on direc-
tors is within their separate classes. Otherwise, estab-
lished clues are normally $100 for organizational mem-
bers and $5 for regular members.
The bylaws provide for a minimum of 10 directors and
a maximum of 30. Presently established is a board of di-
rectors consisting of 15 directors. Directors serve 1-year
terms, or until a successor is elected. Nominations are by
a director, or by a minimum of 20 members. Campaign
or program issues are determined by the board of direc-
tors. OPIC's officers consist of a president, who is also
called the executive director, a secretary, and a treasurer.
The officers are appointed by the board of directors.
Bylaw provision would permit additional officers being
created and designated by the board of directors.
c. OPIC's operational management and employment
structures
In addition to Arlook serving as the executive director
(president) and chairperson, OPIC's management staff is
composed of a financial and administrative director, an
organization director (who also functions as energy pro-
gram director), and a legislative director (who also func-
tions as toxic action project director on the organizing
side). There are two appointed regional staff directors,
neither of whom is on the board of directors. More re-
cently established is a polling research arm that provides
technical services related to electoral activities though it
is unclear if there is an established director of that
program/function. There is a (noncanvass) fundraising
operation, which is essentially handled by Arlook, who
is responsible for raising funds through foundation
grants. There are organizing and canvass staff directors
at the local level. Beneath the latter are canvass field
managers (who are stipulated supervisors), and finally
the canvassers.
The finance director has the day-to-day responsibility
for paying bills and managing cashflow; and he has a
staff of two in addition to himself. Arlook works closely
with the finance director. Arlook thus monitors on a reg-
ular basis all expenditures, and monitors income on a
weekly basis. Arlook also utilizes charts in his office for
ongoing correlation of actual to anticipated budget items.
Program directors perform background research,
produce position papers and fact sheets and they fre-
quently brief staff on the campaign issues. There is an or-
ganizing staff in each of the offices. The local organizing
staff directors are principally responsible for working
with a local steering committee made up of individuals
and affiliated organization members who meet and dis-
cuss matters of (local) direction on campaign issues as
determined by the board of directors, and developed by
given program director. It is the local organizing staff's
job to mform and mobilize others from local neighbor-
hoods, organizations, etc., to build local coalitions in sup-
port of particular issues, and to also generate grass root
lobbying effort around a demand for enforcement of
local, state, and national legislation. It is the canvassers'
job to educate and marshall public support by visitation
at Ohio citizens' homes; and to raise funds to maintain
and expand OPIC's effort by solicitation of contributions
from Ohio citizens being visited.
The organizing staff will speak on determined and re-
searched subject of interest issues to all local groups, in-
cluding labor unions in an area. Organizers will also re-
spond to (toxic dump) site reports, plant explosion, etc.
They will investigate the facts, prepare testimony, edu-
cate the public, and attempt to get immediate attention to
a problem. The organizing staff will also act on the
above matters to stimulate grass root support for pres-
sure on Congress to Support an issue in which OPIC is
interested, or to provide evidence of constituency sup-
port to congressional members who have already de-
clared positions in support of OPIC interest issues.
The organizing staff are paid in the salary range of
$12,000 to $17,000, based on number of dependents and
years of service, but salary is not keyed to relative re-
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponsibility. By and large the organizers have substantial
experience in the field of work being done. Arlook has
testified, without contradiction, that with rare exception
the organizing staff have BAs or advanced degrees; they
all could be making two to three times more than what
they are; and they are not doing it for the money Some
canvassers on completion of their college educational
courses will move on to become organizing staff.
Operationally, canvassers are essentially engaged in
dual purposes of furthering OPIC's public outreach and
fundraising. Thus, on the one hand their purpose is to
make the public aware of what OPIC believes to be an
issue; to help the public become aware of the relevance
of certain legislation to that issue; and to encourage col-
lective citizen action on the issue and the legislation. The
canvassers knock on doors, provide a support and educa-
tional oral statement on the OPIC issue(s) (referred to
colloqually as the "Rap"); may, and frequently do, pro-
vide and distribute certain literature on OPIC and
issue(s), and broaden the educational program reach po-
litically beyond television news and newspaper reports.
Canvassers, in the latter regard, thus solicit involvement
of citizens at all levels, from encouraging people as indi-
viduals and in concert with OPIC, to sign a petition, to
write letters and cards, and to make other statements in
support of OPIC's position on an issue; to make phone
calls directly to their representatives or to man a phone
bank; to come to meetings, to organize public activities,
or to attend a meeting of a delegation from organizations
of citizens who will speak to legal representatives and/or
at a related press conference (such as may be called
when amassed petition signatures in support of a particu-
lar position is to be presented to representation with
media attention), with purpose to persuade those repre-
sentatives that may be wavering, to hold to OPIC's
view, by demonstration that substantial numbers share
OPIC's view; or to meet with legislators of previously
expressed different views, to present OPIC's position and
argument in support of OPIC's belief of being right on
the merit of an issue, and again show the position being
espoused reflects the view of a majority of the constitu-
ency of the representative(s). Canvassers may on occa-
sion also serve as catalysts for other organizational ef-
forts, e.g., in obtaining through accidental door conver-
sation with local TV programmer, an opportunity for
OPIC to make TV presentments of its purposes, oper-
ations, and activities.
Canvassers have to know the issues and be articulate.
They are asked to read a great deal of written material,
much of which they are tested in writing; and they
engage regularly in role plays, in order to make their
communication skill the more effective with all types of
citizenry that may be encountered at the door. The can-
vassers also raise funds through specific requests for con-
tributions at the doors of those individuals visited.
Arlook has testified the canvassers' fundraising function
is crucial to OPIC's continued outreach to the public,
and the one is impossible without the other. Canvasser
attrition, the canvassers' part in subscriptions for OPIC
newspapers, and the matter of canvassers crosstraining,
inter alia, in other States, are more conveniently dis-
cussed infra.
d. Assets, income, and expenses
OPIC's fiscal year runs from 1 July of given year to
30 June of following year. OPIC's 1983 fiscal year, thus
ending 30 June 1984, was not available at time of hear-
ing, as not then complete, being in final audit process.
OPIC has introduced in evidence its 1982 fiscal year
report ending 30 June 1983, it notably being OPIC's last
annual report prior to filing of the charge. Arlook has
also testified on certain related subjects in the 1983 fiscal
year report, and on the 1984 projected budget.
(1) Assets
Of the total assets of $102,232 depicted by balance
sheet of 30 June 1983, the major components are cash on
hand ($31,492) and automotive equipment ($40,693).
OPIC's current assets as generally described by Arlook
appear as modest, viz, some business equipment, some
computer systems (for keeping track of membership, ac-
countings, and for financial planning), some copying ma-
chines, about seven to nine suburban vans (essentially
used in daily field canvas trips), some less than first-class
desks, chairs, and tables, and a significant number of
posters. OPIC has also prepared and published a lot of
(researched) reports. Arlook has testified that, although
OPIC's staff prepares content of the publications, OPIC
does not do its own printing, but rather has heretofore
used two outside printing companies in the printing of its
publications, but one considerably more so than the
other. Both printing companies are located in Ohio, and
no other evidence was offered concerning their commer-
cial operations.
(2) The nature of OPIC publications
OPIC has regularly published a Public Interest Report,
a folded single sheet (thus) four-page leaflet, reporting on
varied matters such as gas hikes, survey of candidates on
an issue, plant closings, natural gas decontrol, conserva-
tion of utility rates, OPIC's position on construction
work in progress (viz, that the same should not be part
of ratepayer's electric bill), toxic substances, and tax
reform. OPIC has also published a similar (ordinance and
campaign) Right to Know leaflet, addressed however sin-
gularly to its toxic substances overall program, and spe-
cifically utilized in support of an ordinance for Cincin-
nati, whereby workers and residents in that community
would be told what toxic substances they were being ex-
posed to on the job, and in their community; and with
identification of, and urging public support of a particu-
lar candidate who had earlier supported, and Advanced
OPIC's position by introducing such a toxic substance la-
beling bill. Arlook has testified that the candidate, and
incumbent, had introduced the bill in support of OPIC's
position, and OPIC earlier realized that unless that
person ran on the issue, and was reelected, the chances
of the bill being heard, much less voted on, was slim.
OPIC devoted a substantial effort in support of a toxic
substance labeling law for Cincinnati and the candidate.
Both were ,successful. Thus, the bill passed in Cincinnati;
and at the time of hearing OPIC was supporting' a similar
bill that had been introduced in Akron. Arlook has testi-
OHIO PUBLIC INTEREST CAMPAIGN 285
fled that (to date) it has not been a case of an individual
contacting OPIC for support, but rather of OPIC's deci-
sion to support a candidate, who was supporting OPIC's
positions on issues. However, OPIC's more recent devel-
opment of related charges to be made to individuals for
OPIC's (service) actions are discussed infra in connection
with income and expenses. In above Right to Know leaf-
let OPIC identified itself as "a state-wide non-profit, citi-
zen research and action organization working to protect
the health and economic security of Ohio consumers."
A major program may have its own literature, its own
organizers, and its own canvass. Thus, OPIC has also
published a four-page "TOXIC WATCH" newsletter, or
newspaper informing the public on varied related matters,
such as: informing the public that a second city, one
nearby Cincinnati, had passed a "Right to Know toxic
chemical labeling law on May 8, 1984"; providing a leg-
islative update on a Toxic Waste bill; presentment of a
request for grass-roots support in a related letter writing
campaign to state senators and representatives; informa-
tion on "Environmental Hotlines"; and an update report
on congressional action and the "Superfund."
OPIC has also published a four-page "Citizen Action"
newspaper for general public education in other matters,
e.g., on energy and jobs, covering. National Ohio public
officials' support; natural gas positions and current activi-
ties thereon, including identification of Ohio congression-
al supporters, and nonsupporters; information on voter
registration; a report on oil profits; and prospective ef-
fects on jobs, if without certain job content legislation.
These newspaper issues were initially published bimonth-
ly, but new issues are now being published quarterly.
The above publications are variously used: being
mailed to subscribers, discussed infra; an individual issue
handed out by canvassers to people who give money
when approached at their home door; used by organizing
staff in their local meetings; and used as part of the pro-
gram of broad and ongoing briefing of OPIC's organiz-
ing and canvass staff on the various campaign issues.
(3) Income and expenses
The fiscal 1982 report, in these pertinent respects, pro-
vides:
Revenue and Expenses Schedules Year Ended June 30, 1983
Amount Per-cent
Contributions-General Canvass Schedule 1
Cleveland $359,264 25.88
Cincinnati 239,278 17.25
Columbus 250,793 18.07
Toledo 138,266 9.97
Akron 208,024 15.00
Canvass-staff 2,859 .21
Total Contributions-General Can-
vass $1,198,484 86.38
Contributions-Toxic Action Project Can-
vass Schedule 2
Cleveland 7,134 .51
Cincinnati 17,250 1.25
Revenue and Expenses Schedules Year Ended June 30, 1983-
Continued
Amount cent
Columbus 12,365 .89
Akron 8,378 .60
Total Contributions-Toxic Action
Project Canvass $45,127 3.25
Grants Schedule 3
Industrial States Policy Center 74,518 5.37
Citizen Education Fund 35,000 2.53
Total Grants 109,518 7.90
STATEMENT OF REVENUE AND EXPENSES AND
CHANGES IN FUND BALANCE YEAR ENDED JUNE
30, 1983
It is apparent therefrom that in fiscal year ending 30
June 1983, of the total support and revenue generated,
$1,387,359, OPIC's general canvass produced $1,198,384;
and another $45,127 was produced through a specific
and separate toxic action project canvass, the latter how-
ever, only recently having begun in May 1983. Thus,
both canvasses uncontestedly generated almost 90 per-
Amount Per-cent
Support and Revenue
Contnbutions:
General Canvass (Schedule 1) $1,198,484 86.38
Toxic Action Project Canvass
(Schedule 2) 45,127 3.25
Individuals. 11,533 .83
Organizations 17,284 1.25
Fees 2,111 .15
Grants (Schedule 3) 109,518 7.90
Sales 382 .03
Miscellaneous 2920 .21
Total Support and Revenue 1,387,359 100.00
Expenses
Program Services
Charitable Non-Lobbying
(Schedule 4). 349,668 25.20
Electoral (Schedule 5) 25,401 1.83
Legislative (Schedule 6) _ 609,937 43.96
Total Program Services 985,006 70.99
Supporting Services
Management and general (Schedule 7) 105,033 7.57
Fundraising (Schedule 8) -379,296 27.34
Total Supporting Services 484,323 34.91
Total Expenses 1,469,329 105.90
(Deficit) Excess of Revenue Over Ex-
penses (81,970) (5.90)
Fund (Deficit) at Beginning of Year (139,301)
Prior Period Adjustment (6,623)
Fund (Deficit) at End of Year (227,894)
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cent of OPIC's total support and revenue for the 1982
fiscal year ending 30 June 1983. Arlook has testified cre-
dibly that canvass contributions are exclusively and liter-
ally contributions received by canvassers at the doors of
homes.
Grants amounted to $109,518 or .9 percent, and the
next major revenue source, viz, contributions from orga-
nizations (chiefly unions) was $17,284, amounting to 1.5
percent of overall support and revenue. Arlook has testi-
fied relatedly on background of early operating revenue,
that when the OPIC organization started, it had relied
more heavily on his efforts in obtaining fund grants, and
on the contributions of organizations, as the then main
sources for OPIC operating revenue. Arlook further tes-
tified that fund grants and organization contributions in
amount have remained about the same even to date. Ac-
cording to Arlook, however, the canvass contributions
took off in about 1981, when OPIC realized that if a can-
vasser raised a quota, the people made more money, and
more canvassers could afford to work for the organiza-
tion. In material times canvassers received a salary of
$160, for meeting $400 quota (and 50 percent of that
contributed over $405). Base presently is $180 for meet-
ing $459 quota.
In more recent years the general canvass had focused
essentially on energy issues. However, in May 1983, a
new and separate canvass operation was started, in sever-
al cities in Ohio, on a special toxic action project. It thus
may be secondly noted that Arlook's supplementary tes-
timony is that since the above 1982 fiscal year report, the
toxic action project canvass has itself grown substantial-
ly, to point of Arlook anticipating it would soon balance
out at the general canvass level (of income production).
In calendar year 1983 OPIC received contributions from
300,000 Ohio households; and Arlook anticipated that in
calendar year 1984, contributions would be received
from closer to 400,000 Ohio households. (OPIC more
often receives petition signatures and forms of support
other than contributions at the doors.) The anticipated
(prospective) budget for OPIC's fiscal year 1984 is itself
just over $2 million.
Although there may be some element for confusion in
the record about grants being presently received by
OPIC from certain foundations, the 1982 fiscal report is
clear that all the grant funds were then received from In-
dustrial States Policy Center ($74,518), albeit a part
thereof originated from a Catholic charity, and the Citi-
zens Education Fund ($35,000), as noted (then) 7.9 per-
cent of total support and income. There is no evidence
of OPIC receiving grants from any Federal, state, or
local governmental unit source.
Arlook acknowledged on cross-examination that he is
also a director of a federation of citizen organizations
(like OPIC) called Citizen Action. There are 13 official
(unnamed) member organizations of Citizen Action, with
(apparently) six organizing projects, along with Citizen
Action's informal relationships with a few other state-
wide organizations. The Industrial States Policy Center
(ISPC) at one point in the record is identified by Arlook
as being an organization related to OPIC, but one sepa-
rately incorporated to fall within the Internal Revenue
Service (IRS) code 501(c)(3), nonprofit "public char-
ities," contributions to which are tax deductible by a
contributor. According to Arlook ISPC is a research
publication and public educational organization, which
exclusively does research on public-educational publica-
tions, though it also may make grants to other organiza-
tions advancing its own purposes. However, ISPC re-
stricts use of its grant money to performance of no elec-
toral work, no partisan work, and no substantial amount
of lobbying. OPIC, accordingly in turn, restricts the use
of funds granted to it by ISPC, to ISPC purposes, exclu-
sively; and OPIC makes an appropriate accounting of
those funds uses.
In contrast, however, OPIC has qualified as a nonprof-
it 501(c)(4) tax exempt "action" organization, contribu-
tions to which are not tax deductible by the contributor,
but which in turn then leaves OPIC free to both lobby
and to engage in electoral activity, such as is consistent
with state and Federal law. Arlook has otherwise testi-
fied that there is no corporate overlap between OPIC
and ISPC, though immediately hedging to extent of testi-
fying more cautiously that there may be in a technical
sense, which he does not understand. ISPC operates with
its own staff in most of the industrial States, though its
primary emphasis to date has been in Ohio.
ISPC has separate offices in Cleveland, but shares a
suite of offices there with OPIC. Arlook has also ac-
knowledged that if a prospective door contributor on an
OPIC canvass wanted a tax deduction for a substantial
contribution (e.g., for a $25 contribution or more), a con-
tribution to ISPC would be suggested. That ISPC contri-
bution would be forwarded to ISPC. However, if the
contributor wanted lobbying, it would not be done. Al-
though Arlook did not know the accounting involved,
he also doubted such ISPC contributions were separated
from general funds by ISPC and directed back to OPIC
as such. The IRS by letter of "June 27, 1977" initially
determined OPIC qualified as an exempt social welfare
organization under § 501(c)(4); and by (last) letter in evi-
dence dated "June 27, 1983," for period ending "6-30-
82," the IRS has continued recognition of OPIC as such
a tax exempt organization.
In that regard OPIC separately accounts in detail for
the expenditure of its own income, as in 1982 fiscal year
in categories of: (a) Charitable—Non-Lobbying
($349,668-25.2 percent); (b) Electoral Activity ($25,401—
1.83 percent); but in the main lobbying, Legislative
($609,937-43.96 percent). The remaining expenses are in
supporting services (essentially management, general, and
fundraising). The money expended on charitable—non-
lobbying includes organizational work (but no lobbying),
and OPIC's research and public educational outreach.
Arlook has otherwise testified that OPIC tries to raise its
money in a manner to have maximum amount available
to OPIC to be spent in legislative (lobbying) as a great
deal of OPIC's work is devoted to working with city
councils, legislatives, Congress, Ohio representatives; and
all pieces of legislature (on OPIC issues) are important.
Lobbying for OPIC purposes, however (at least in the
main), is not in the traditional sense of working through
registered lobbyists, but rather is essentially grass-roots
lobbying. Thus, canvassers and organizing staff most fre-
OHIO PUBLIC INTEREST CAMPAIGN 287
quently are out in the local community, urging action in
support of, or in opposition to, a particular piece of legis-
lation. Issues, however, may take varying amounts of
OPIC's time and resources. Arlook gave as an example
of a statewide issue, that took OPIC a couple of years of
intensive lobbying all over the State on the issue of utili-
ties not charging ratepayers on portion of incompleted
plant prior to the plant being on line delivery. OPIC's
approach on lobbying is having people back home talk
to their legislators on an issue; and both organizing staff
and canvassers employ a number of techniques to do
that, as earlier noted.
Arlook gave as another example OPIC's interest in
aiding those of low and moderate income (and others) to
weatherize their home, with a range of programs raised
for low interest, extended pay loans to those with low
and moderate income, and to effect (after work done)
combined bills (for usage and weatherizing) being on in-
stallment basis lower than prior heating bill. In this in-
stance OPIC was successful in obtaining (only) a pilot
project in Cleveland, though with governor adoption
and support; and OPIC views its task is to now market
that approach elsewhere.
Grass-roots lobbying may be directed at the Ohio dele-
gations and representatives to Congress. OPIC was re-
cently active in a national issue of reauthorization and
expansion of "super fund" cleanup on toxic waste sites.
In the latter regard OPIC is involved in coalition with
organizations of similar purpose on a national level, e.g.,
the National Campaign Against Toxic Hazards, and simi-
larly on other issues, with the First Citizens Labor
Energy Coalition. The only prior energy issue in which
OPIC was heretofore active on the national level was on
gas decontrol some 2-3 years earlier, though Arlook en-
visioned similar support activity in an anticipated floor
fight on a (prospective) national consumer relief act.
According to Arlook, income from fees ($2111 in
fiscal year 1982) are rare and small, and are received for
such matters as economic, or environmental research, or
for technical electoral assistance, targeting or polling; but
the same are performed only if consistent with OPIC's
program and stance on an issue, and for candidates that
OPIC actively supports because of the candidate's stance
on an issue determined important to OPIC.
In regard to the above, Arlook has testified that at first
the charge-back fee did not reflect the real costs, as
OPIC had essentially charged only for direct out-of-
pocket costs (as for printing for publications used), but
did not at first charge for staff time or overhead. OPIC
(eventually) found it had to charge to cover staff time
and overhead. However, OPIC would provide the serv-
ice in the first instance only when it concluded its goals
were being served, and its program advanced. ArIook
testified that OPIC was currently performing an econom-
ic research project test on certain cost claims in the res-
taurant industry for which it was to be paid by the
UAW, which was not typical, but served OPIC's goals,
and was approved. According to Arlook, OPIC has per-
formed work on such projects, from time to time, in
those circumstances. Other individuals/groups seeking its
service in the pasts when that was not determined the
case, have been regularly refused. The General Counsel
has offered no evidence contrary to Arlook's assertions
in this area.
Arlook has testified that on occasion OPIC has put a
lot of people on leave to work in a campaign that the
organization supported. In the toxic substance labeling
law, earlier noted, in which OPIC devoted a substantial
effort, OPIC charged for some of its costs. OPIC has
also heretofore managed some campaigns, and has
charged for staff time; has performed polls, and charged
for the service; but, according to Arlook's uncontested
testimony, "always only for people we support independ-
ently, and not with prior purpose to raise money." How-
ever, Arlook has also testified that more recently where
a certain service (targeting for two Dayton candidates)
was program related, and thus its income would be
exempt, OPIC for the first time did charge an amount
for its service that was less than going rate, but more
than its real costs, and the excess charge over expense
and overhead went to OPIC's general operation funds.
The record does not otherwise reveal the amount of
income generated over expenses, or the frequency with
which it is anticipated this will occur, though there was
reference to a policy thereon.
OPIC, in fiscal year 1982, otherwise reflects sales
income of $382. Arlook explains that OPIC has prepared
and published a lot of reports, containing their research
and findings. When other than a single copy of a report
is requested (e.g., bulk copy) a charge may be made, but
rarely is. If it is done, it is reflected in sales. Generally
speaking when that charge was previously made it was
again made on basis of out-of-pocket costs, e.g., printing
costs. Miscellaneous income ($2920) was at first generat-
ed from rummage sales. More recently, and more effec-
tively, miscellaneous income is generated by celebrity
auctions. Arlook did not believe there was any other
source of revenue. It would appear that annual individ-
ual membership primarily arose associatively with can-
vass contributions.
As may be noted at the end of fiscal year 1982, OPIC
had a total deficit of $227,894 up from prior year deficit
of $139,301, or an increase in deficit of $81,970 for the
1982 fiscal year ending 30 June 1983. Arlook has ac-
knowledged OPIC received criticism over its deficit,
though it has been readily able to convert short-term in-
debtedness to long-term indebtedness, as, according to
Arlook, OPIC pays its bills, and has a very good credit
rating. Arlook, however, acknowledged OPIC has had
to cut its costs and increase revenues. The record does
not reflect OPIC's current deficit status, if any.
3. The subscriptions
Subscriptions to the Citizens Action newspaper (in
general canvass) and to the Toxic Watch newspaper (in
toxic action canvass) are given out by OPIC to those in-
dividuals who give $15 (or more) in contributions at the
door. (Some of the organizations who support OPIC also
take subscriptions, but canvass contributors are the main
subscription source.) Individuals who give less are given
a receipt, though Arlook testified a copY of current issue
is given at the door to anyone contributing any amount;
and he felt likely given to anyone if only otherwise sup-
(B)
Program
services
(A)
Total
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
porting the organization, as he has himself done. No evi-
dence was offered about the number of subscriptions that
were in effect in the fiscal year 1982 periodArlook,
however, has otherwise testified that in the last month or
two he was aware that subscriptions to the two newspa-
per had risen to approximately 75,000. Although there
were presently more energy (general) canvass subscrip-
tions, that was because toxic action was a newer pro-
gram; and Arlook anticipated that (toxic watch) newspa-
per subscriptions would (again) level off with the Citizen
Action newspaper subscriptions, as are their contribu-
tions overall. According to Arlook, the ($15) subscrip-
tion cost is set by the canvassers on basis of what they
feel is reasonable to expect to get at the door. Arlook,
however, has estimated that more than half of the news-
papers that are distributed are unpaid for; and Arlook
testified in other explanation that there is a constant ten-
sion to get OPIC's publications out to be read by the
public, and a necessity for some level of support pay-
ment to continue. It is Arlook's testimony that OPIC's
cost of printing, postage, computer, and staff time in re-
search writing and editing exceeds by far what is
brought in, though no hard figures are directly supplied.
Respondent has also presented in evidence OPIC's
1982 return of organization exempt from income tax,
which is generally supportive of OPIC's other financial
statements hereinabove received. Arlook has testified
generally that publication distributions are not operated
on a profit basis. In the above tax return data for 1982
(fiscal year, on gross revenues shown of $1,387,359 func-
tional expenses are shown (inter alia) of:
(C)
Manage- (D)
ment

Fund
and raising
general
Postage and
Shipping 12,969 8,375 1,168 3,426
Printing and
Publications.— 14,153 11,043 748 2,363
In addition thereto, under (Sec. 43) other expenses
there appear:
(C)
Total
(A) Program ment Fund
services and raising
(B) Manage- (D)
general
Advertising 13,955 8,951 0 5,004
Mailing Service 6,966 4,597 488 1,881
Newsletter 16,874 11,137 1,181 4,556
Publications 1,869 1,869 0 0
Although that "Return" additionally reflects all compen-
sation, pay, benefits, etc., in much more significant total
and as ascribed to program services, management and
general, and fundraising, nonetheless there is seemingly
no yardstick effectively presented for an accurate meas-
urement of the fiscal 1982 subscription publications reve-
nues versus costs, particularly on major factor of related
(proportional) staff cost and overhead.
Thus, to the extent Arlook's testimony is that OPIC's
publication distributions in fiscal year :1982 were not op-
erated on a profit basis in the absence of evidence about
number of subscriptions then distributed, and the limita-
tions of other data supplied, in my view, the same is in-
sufficient to firmly conclude on the matter. Though one
may suspect that with (both) newspaper subscriptions,
most recently (mid-1984) approximately 75,000 subscrip-
tions, seemingly with reasonably inferable relation to
over $1 million in revenues derived from individual con-
tributions of $15 (or more), that nonprofit assertion of
Arlook may no longer be so, save in some other intended
sense, viz, that newspapers are not solely (or even still in
majority) distributed on a subscription basis, and/or even
the more basic argument, that these newsletters and/or
newspapers are not being sold at all in the commercial
sense, as OPIC has urged in brief, discussed infra. Hard
facts for clear costs-profit publication relationships are
simply not presented for accurate determinations in this
record. However, it otherwise appears that the General
Counsel's argument for assertion of jurisdiction on pub-
lishing company basis is itself built on general inference,
contrary to Employer contention, that there is a com-
mercial relationship sufficiently evidenced in contribution
revenue's relation to subscription, which is also to be dis-
cussed more fully infra. With regard to newspaper publi-
cations, on the one hand, no hard evidence clearly evi-
dencing sale of newspaper at the door is presented, e.g.,
subscription order being filled out at door, and copy to
subscriber. On the other hand, in regard to even those
newspapers distributed on nonsubscription basis, Citizen
Action newspaper (Nov.-Dec. 1983) in evidence invites
subscription to that newspaper at $15/yr.; and Toxic
Watch Newspaper (May-June-July 1984) invites sub-
scription to each of the newspapers, respectively at
$15/yr. However, I have no hesistancy in concluding all
the publications in their content are wholly oriented in
service to OPIC's chartered purposes. There is no evi-
dence presented that OPIC itself subscribes to AP, UPI,
or any other national news service. There is no commer-
cial advertisement apparent in the publications. There are
no syndicated features in the general sense. There is an
ongoing count made of how, many pieces of literature are
distributed to the community by canvassers.
4. Canvass operational management; and canvasser
selection, training, attrition, and crosstraining
OPIC employs two regional staff directors who, inter
alia, have responsibility over OPIC's canvass operations.
Don Wolcott is one of the regional staff directors and he
is located in the Cleveland office. Wolcott has had 5
years of canvassing experience. Wolcott had previously
worked for organizations apparently similar to OPIC,
viz, for a Missouri public interest research group in the
State of Missouri; and also for Ohio Public Action Coun-
cil in Champlain, Illinois, as a canvasser for about 1 year
and 2 months. Thereafter, in July 1982, Wolcott was
hired by OPIC as the canvass director for its Cleveland
office. In 1983, Wolcott was given additional canvass re-
OHIO PUBLIC INTEREST CAMPAIGN 289
sponsibilities outside Cleveland; and he was made a re-
gional staff director. Wolcott's present canvass responsi-
bilities cover OPIC's offices in Cleveland, Columbus,
and Akron, and he shares responsibilities in Toledo.
Seemingly the other regional staff director has compara-
ble responsibilities, if not in the Toledo office, in the re-
maining area offices.
Arlook has testified in general regarding the require-
ments of canvassers and their training, but essentially left
the details of canvasser selection, training, and particular-
ly of cross-training to Wolcott. Arlook, however, has
also testified broadly about the general purpose of cross-
training as being designed to give promising canvassers
an opportunity to have a different experience doing the
same kind of work in a different State; or in a different
place in the same State; or similarly, doing different
kinds of canvassing, as on a different issue, or on elector-
al work; all as a way of increasing peoples' commitment,
broadening their outlook, and motivating them, which
are deemed essential elements in the training and devel-
opment of good canvassers. Wolcott has additionally
noted that if a canvasser experiences making quota in an-
other State, or even elsewhere in the same State, the
person develops more confidence that he or she can
make quota anywhere, on any of the different OPIC
campaign issues. In the latter regard, Arlook has testified
that the reason for the establishment of a required quota
concerns both °PLC's educational program outreach to
the public, and lobbying, and (as earlier noted) OPIC's
related need to raise money to continue those activities.
In Arlook's view, the ability of a canvasser to raise quota
is a good standard for measuring the canvasser's per-
formance, not only in the necessary fundraising, but also
in the program's outreach to the public, as meeting quota
is deemed the best objective indicator of a quality in
communication of OPIC's purposes and positions by the
canvasser to those of the public contacted in their neigh-
borhoods. It is apparent from this record that OPIC
relies very substantially on canvass-generated income not
only to continue the funding of its outreach programs,
but for substantial contributions to organization.
Arlook (and/or Wolcott) has confirmed that canvass-
ers have been sent out on cross-training, inter alia, to:
The Citizens Action Coalition of Indiana; to "9 to 5," a
combined national labor organization, and women's
movement (of which Arlook's wife is president), which
does related convassing; and to various other organiza-
tions (similar to OPIC) in Nebraska, Virginia, New York,
and Florida, but not thus far to the (organized) Massa-
chusetts Fair Share. According to Arlook, out-of-state
training is arranged informally with the out-of-state orga-
nizations, though, again, he left details of such to later
Wolcott exposition. However, Arlook has testified that
OPIC pays for all the work done in Ohio; but in regard
to work done by OPIC canvassers, etc., outside Ohio,
that is someone else's bill.
Arlook has testified generally that affiliated and coali-
tion organizations have annual canvass retreats, most of
which have heretofore been held in Ohio, but that (at
least) onte canvass conference was held in Pittsburgh,
Pennsylvania, at which some 1000 canvassers and direc-
tors were in attendance. Wolcott essentially confirmed
the above, but further explained there are also meetings
of canvass directors, usually three to four times a year.
Those in attendance plan budgets and talk about cross-
training schedules. Travel weeks are at this time set up in
advance. Travel allowed for out-of-state cross-training is
usually 3 weeks, but may be less for in-state, e.g., a
week. Housing is provided by staff members, usually by
the canvass directors.
According to Wolcott, approximately every third
weekend, individuals are afforded an opportunity to
cross-train, Wolcott otherwise confirming Arlook on the
purposes for the different locations and issues; and
adding also, with purpose to break repetition, or to
enable the canvasser to observe an issue is a hot issue
elsewhere, and to pull that individual further into the or-
ganization, while developing them. According to Wol-
cott, approximately one-third of staff will cross-train,
though usually after the individual has been on staff a
while, and developed some degree of confidence in an
ability to raise quota locally. Specific requests may be
made by canvassers to cross-train out-of-State, usually in
circumstances where the canvasser has a relative living
in the area.
Totals on financial records in evidence reveal that
transportation ($69,910) and travel expenses ($28,615) are
broken down between (programs) Charitable—nonlobby-
ing, electoral and legislative (lobbying); and also between
(supporting services) management and general, and fund-
raising, as follows:
Chari- Manage-table Elec- Legis- Fund-
Nonlob- toral lam ment,

e raisingGeneralbying
Transportation 15,062 899 31,573 113 22,263
Travel 8,748 1,105 11,478 3,122 4,162
Conferences, conventions, and meetings ($18,749) are
seemingly broken down only between program ($12,044),
management/general ($1097), and fundraising ($4162).
However, there is no clear demarcation provided regard-
ing out-of-state transportation or travel expense. If any-
thing, the above records, in light of Arlook's testimony,
would indicate that canvasser transportation out-of-state
is someone else's bill, or cost, as is (alone) definitively
shown to be the case in Wolcott's travel out of state in
providing certain services to other organizations, dis-
cussed infra, if not that of the individual.
There is a canvass director at each of the offices under
Wolcott's authority. Progression locally is normally from
canvasser to field manager trainee, to field manager,
though some experienced canvassers who do not desire
at the time to become a field manager may become a
senior canvasser. Progression from field manager, appar-
ently accomplished usually after about 1 year, is to can-
vass director trainee and then to canvass director. In ad-
dition to training and developing the canvass directors,
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wolcott also works with the field managers and helps to
develop and train staff, by briefings and otherwise, local-
ly in Cleveland, and as well in the other offices during
his regular visits. Wolcott thus travels to each office at
least once every 3-4 weeks, and more often in the
summer. Wolcott works very long hours, usually putting
50-60 hours a week in at the Cleveland office, along
with (currently) spending 25 to 30 percent of his time
traveling in visits to the offices, and on other matters,
certain of which relates to consultant work for organiza-
tion outside the State of Ohio.
The number of canvassers employed will vary at given
locations; but, e.g., at Cleveland, have apparently been as
high as 35, but have averaged in number from 15 to 20.
With regard to the selection and OPIC employment of
canvassers, Wolcott has testified that OPIC runs classi-
fied ads, Sunday through Wednesday, every week under
heading of political activist, environmental activist, or
community outreach, and with some brief statement of
the nature of OPIC work. OPIC's work is somewhat sea-
sonal, as winter is restrictive of effective canvassing.
Attrition in responding applicants, those in initial 2-
week training, and otherwise, is very high. Of those re-
sponding to the ad and initially scheduling for an inter-
view, 30 to 50 percent do not show up for the interview.
Although Wolcott will help with interviews, the canvass
directors perform most of the interviews by far; and the
same takes up an appreciable amount of his or her time.
Individuals who do report for the interview are given a
much more detailed exposition of the work, with de-
scription of the organization, pay, benefits, a preview of
an initial 10-day training program (with its reading and
test review of files, and/or briefings), and advancement
potentials. If the applicant remains interested and has not
revealed energy flaws or fatal discomfiture at asking for
money, the applicant is next scheduled for an observation
day, at which time the applicant goes with a designated
staff member into the field to observe the work being
done firsthand. Anywhere from 30 to 75 percent of those
interviewed in the offices may come in for an observa-
tion day; but only one-half of them will go on to further
training. A review of the personal experience of the ob-
server is made after the latter's observation of the work;
and a decision made at that time to hire, or not. It is
only at this time of hire that the individual goes on
OPIC payroll.
Wolcott has testified in detail as to the nature of the
daily program of read files, tests, discussions, briefings,
canvassings, retraining, alternate style observations,
"rap" development, role playings, and regular weekly
briefings by higher staff and outside experts and con-
fronting interests, the details of which need not be re-
peated, beyond observation and funding that the salient
thrust of the overall program is one clearly designed to
make the canvassers who continue, as informed and
knowledgeable of issues and organizations as possible,
and developed in their skill and technique as a canvasser.
In explanation of the high attrition Wolcott has testi-
fied that the work, which basically involves talking
about political issues at home doors, and asking people
for money there, is very difficult; and all canvassers en-
counter much apathy. The pay is low, and the canvassers
themselves are generally talented people, many with col-
lege backgrounds, who can readily make more money
doing something else; and the rejection at the doors, if
not sooner, eventually discourages many, who then
simply do not come back.
Wolcott has summarized with the Cleveland office as
example, that in the course of a year there were between
200 to 250 who appeared for an observation day; but
only about one-half that number stayed for 1 more day;
and approximately 65 percent of the (first) number clear-
ly did not stay beyond the 2-week training period. In
Wolcott's 3-year experience at Cleveland, some 300 to
350 have gone through the 10-day training program; but
in his last 2-year experience he had observed that only 2
or 3 canvassers out of 100 will continue in employment
over a year. At any one time 25 to 30 percent of canvass
crews are new (1-2 days), another 15 to 20 percent will
still be within their first 2 weeks of employment, and
most of the remainder of the active canvassers will have
been employed somewhere between 2 weeks and 3
months. Overall, there will be several dozen pass 3-
month tenure; but only half that pass 6 months.
Generally speaking, field managers are in charge of
running the canvass crews in the selected neighborhood,
which are rotated, desirably, but not necessarily, on an
annual basis. Data and files on neighborhoods are col-
lected from census and a variety of other sources;, and
these and schedules of canvassers (after view of prior
week) are reviewed at the start of each week by the can-
vass director and/or field managers, in preparation for
that week's work. Logistics of available workers and
transportation are at that time reviewed and settled on.
Canvass directors arrange for any required permits. Out
in the field, the field managers will make an on-site
survey of the neighborhood to be visited; and on return,
will make a final review of the "rap" to be presented,
which is frequently oriented to the neighborhood to be
visited; and the field manager will then inform the can-
vassers how much money is to be asked for in that given
neighborhood ("turn. Dave Williams, canvass director
in Cleveland in material periods, has testified that there
are 2 million people in this area; that they do not go to
extremely low income, or people fixed on welfare, but
otherwise they visit every kind of neighborhood you can
think of. Although OPIC keeps records of neighbor-
hoods visited, canvassers do not rotate (earlier) into a
neighborhood because of its (prior) recorded contribu-
tion (per hour) average.
An individual canvasser will normally be assigned 80
houses to visit each night, though a skilled canvasser will
not need that many to make quota. Visiting hours are
normally of 5-hour duration, between 4 to 9 p.m. Field
managers regularly, and canvass directors occasionally,
though particularly new canvass directors, will canvass
by themselves, if not with observer or retrainee. It is es-
sential that a field manager regularly makes quota. Can-
vassers routinely canvass individually. When initially
starting a new canvasser must make an established quota
of $80 in any 1 day in the first week. Thereafter, the can-
vasser must make the regular quota as earlier described.
If a regular canvasser fails to make quota in 1 week, the
OHIO PUBLIC INTEREST CAMPAIGN 291
canvasser will be put on probation; and the canvasser
must make quota the next week, or the canvasser is re-
leased. Canvassers on probation are noted in each week's
review. There are a significant number of terminations
associated with failure to make quota.
Wolcott has testified generally that neither technique
nor knowledge of issue content will carry a canvasser
over the long run. The canvasser has to feel good about
the work being done, which on other occasions was de-
scribed by Wolcott as having some form of commitment
to the work itself, and in that respect, essentially has cor-
roborated Arlook thereon.
5. Other evidenced organizational relationships
Insofar as the record reveals, the Hudson Bay Compa-
ny (HOC) (apparently) run by one Mark Anderson, in
general, helps design and implement (seemingly canvass)
programs for organizations like OPIC, in various States.
OPIC itself has a contract with HBC under which OPIC
pays HBC for certain canvass consulting services, viz,
for technical consulting services of Anderson on how to
build OPIC's canvass in Ohio. Wolcott does not receive
any payment from HBC for Wolcott's own work for
OPIC. HBC does not pay Arlook for any service. How-
ever, HBC has paid Wolcott for certain consultation
work that Wolcott has performed for other organizations
that are located outside the State of Ohio. Thus Wolcott
has testified that because of his 5-year experience in can-
vassing, Wolcott has been heretofore called on to pro-
vide certain services for other organizations, in Missouri
(e.g., for the Missouri Citizen Labor Coalition, and the
Missouri Coalition for the Environment), and elsewhere
sitnilarly.
According to Wolcott, the various arrangements are as
follows. The services that Wolcott has provided these
out-of-state organizations were: participation in organiz-
ing and in strategy sessions; provision of assistance in the
design of issue "rap" to be delivered at home doors, and
in the development of literature for campaign issue(s);
and he had had direct involvement in the training and
supervision of their canvassers. The out-of-state organiza-
tion pays Wolcott directly for Wolcott's travel, and for
his other out-of-pocket expenses. However, the given or-
ganization has paid HBC for canvass service consulta-
tions (as does OPIC). HBC in turn pays Wolcott, on ap-
parently a per diem basis, for Wolcott's time actually
spent in consulting with these out-of-state organizations,
out of the organization's fee previously paid by them re-
spectively to HBC for that service.
6. Contentions of the parties, analysis, findings, and
conclusions
a. General contentions
With asserted reliance on the holdings of Polish Na-
tional Alliance v. NLRB, 322 U.S. 643 (1944); St. Aloysius
Home, 224 NLRB 1344 (1976); First Church of Christ Sci-
entist, 194 NLRB 1006 (1972); California Medical Assn.,
223 NLRB 201 (1976); and Disabled American Veterans,
112 NLRB 864 (1955), the General Counsel has essential-
ly argued that although OPIC is a nonprofit organiza-
tion, and has engaged in political lobbying activity,
OPIC is shown herein to have engaged in certain com-
mercial publishing activities; and that in light of OPIC's
admissions otherwise to having had an annual gross reve-
nue in excess of $1 million, and its admission to having
had direct inflow of goods and services of $36,000, the
above business activities of OPIC have effectively placed
it within the Board's jurisdiction. In that regard the Gen-
eral Counsel has urged that Respondent OPIC effective-
ly meet any of the Board's discretionary monetary (pre-
sumably gross revenue) standards, but has specifically
argued in brief that OPIC meets the Board's discretion-
ary standard of $250,000 for publishing operations, which
standard it is urged should be applied to OPIC, without,
however, specific case authority being cited in support of
latter contention.
OPIC has readily acknowledged that the jurisdiction
of the Board is as broad as the power of the Federal
Government under the commerce clause of the Constitu-
tion, Polish National Alliance, supra, and with other cases
cited; and OPIC has as readily conceded that the Board
with regularity has asserted jurisdiction over nonprofit
charitable organizations providing various services, e.g.,
hospitals, nursing homes, job corps centers, daycare cen-
ters, and legal services. Respondent nonetheless observes
there are clear exceptions to Board jurisdiction assertion,
viz, those imposed by Congress in the Act; those self-im-
posed by the Board; and certain limitations operative on
the Board such as have been determined by the Supreme
Court. Thus, OPIC has referred to the congressional ex-
clusions of certain entities as employers in Section 2(2),
and of certain classes of workers in Section 2(3) of the
Act. OPIC has also noted the Board's discretionary
standards, with particular reference to the Board's Rules
and Regulations (other rules), specifically Section 103.3,
and generally 29 CFR § 103.1 et seq. (1983). However,
OPIC relies principally herein on a claim of application
of lack of Board jurisdiction under first amendment
guideline limitations as heretofore determined by the Su-
preme Court, viz, in NLRB v. Catholic Bishop of Chicago,
440 U.S. 490, 499 (1979) (and with reliance on the
Board's subsequent recognition of the latter, Faith
Center-WHCT Channel 18, 261 NLRB 106 (1982)); with
comparative reliance on Supreme Court similar approach
in a matter involving other than a religious organization's
first amendment guarantees (separation of powers) on
McCullough v. Sociedad National de Marineros de Hondu-
ras, 372 U.S. 10 (1963); and in support of its own specific
claim made to a first amendment guarantee status as a
political action organization comparable to that of the re-
ligious organization in Catholic Bishop of Chicago, supra,
would rely on holdings of Buckley v. Valeo, 424 U.S. 1
(1976); and Village of Schaumberg v. Citizens for a Better
Environment, 444 U.S. 620 (1980).
Thus, while not denying the facts regarding the
amount of its annual gross revenues, nor of its purchases
of goods and services directly in interstate commerce,
OPIC essentially contends that on the facts of this
record, it is shown indisputably that OPIC is a political
advocacy organization; and it thus has argued that under
principles illucidated in connection with first amendment
claims in Catholic Bishop of Chicago, supra, it is similarly
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not affirmatively shown herein that Congress has granted
the Board jurisdiction over political organizations such
as OPIC.
To the contrary, OPIC contends an examination of the
Act and its legislative history makes it clear that Con-
gress simply gave no consideration to Board jurisdiction
over political advocacy organizations; and it advances
further argument that OPIC's own research has failed to
reveal a single case where the Board has asserted juris-
diction over a political advocacy organization such as
OPIC, an organization whose raison d'etre, is the propa-
gation of political opinion. OPIC contends, for example,
the Board has not heretofore asserted jurisdiction over
either the Democratic or Republican National Commit-
tee, or any of their state affiliates; nor over Americans
for Democratic Action, or Americans for Conservative
Action; nor over Common Cause, or the National Right
to Life Committee, or the National Right to Work Com-
mittee. 2 Respondent OPIC thus contends that the Board
is without jurisdiction over it as a political advocacy or-
ganization; and it urges accordingly that the complaint
against it should be dismissed. The General Counsel
counters with specific assertion that the Board has assert-
ed its jurisdiction over an employer in lobbying circum-
stances, with reliance on Disabled American Veterans,
supra; and basically contends the holding of Catholic
Bishop of Chicago is inapplicable.
In anticipation that the General Counsel was to con-
trarily urge on the Board an assertion of jurisdiction on
the basis of OPIC's publications, and though with pass-
ing assertion that the Supreme Court in the Catholic
Bishop of Chicago case, supra, suggested that its decision
in Associated Press v. NLRB, 301 U.S. 103 (1937), turned
on a failure of proof rather than a conclusion of law, 440
U.S. at 507, OPIC, in any event, would distinguish the
holding of Associated Press as involving a purely com-
mercial kind of speech, because there, it is argued, the
nonprofit sale of news gathering and distribution services
of Associated Press was to members engaged in a com-
mercial business for profit, in contrast to the contended
politically inspired and motivated canvassing being car-
ried on by OPIC.
2 It is (only) argued in brief that these organizations have existed far
longer and have much larger total revenues and more numerous inter-
state contacts than OPIC does. Though it would seem that the existence,
and general purpose of many of such organizations are matters of such
common knowledge and experience as to be Judicially noticeable in gen-
eral, it also appears the specific scope of a given total organization well
may not be so. See, e.g., Automobile Workers v. Right To Work Founda-
tion, 590 F.2d 1139 (D.0 Cir. 1978); and see Automobile Workers v. Right
To Work Foundation, 113 LRRM 3468 (D.C.D C. 1983). Beyond observa-
tion that the court also followed a deemed obligatory approach where
the constitutionality of a statute is drawn into question, to "ascertain
whether a construction of the statute is fairly possible by which the ques-
tion may be avoided," it would, in my view, be improvident to draw
broad supporting conclusions as OPIC has urged without specific sup-
porting evidence being offered in adversarial proceedings; or such as
might be effected by the Board through applications of its rule proce-
dure; and particularly so where the same court has earlier observed that
reconciliation of the fundamental but conflicting causes there involved
(albeit under a different statute (LMRDA)), "would have to be made in
the context of the labor relations setting," citing NLRB v. Gissel Packing
Co., 395 U S. 575,617-618 (1969).
b. Preliminary analysis of general contentions
First, to the extent that OPIC would seek to now re-
raise broad contention that a newspaper publishing busi-
ness may not be covered by the Act because of the pro-
tective reach of the first amendment, that argument has
been addressed and the contrary definitely resolved here-
tofore by the Supreme Court in Associated Press v.
NLRB, supra; and see also Okkhoma Press Pub. Co. v.
Walling, 327 U.S. 186, 193 (1946), in which the Court, in
addressing such an argument on a similar issue, and
citing the Associated Press case, supra, earlier observed,
"The Amendment does not forbid this or other regula-
tion which ends in no restraint on expression or in any
other evil outlawed by its terms and purposes."
With regard to OPIC's arguments, such as may be
viewed as resting on the Act's employer and employee
exclusion, Section 2 of the Act, definitions, pertinently
provides in part:
(2) The term "employer" includes any person
acting as an agent of an employer, directly or indi-
rectly, but shall not include the United States or
any wholly owned Government corporation, or any
Federal Reserve Bank, or any State or political sub-
division thereof, or any person subject to the Rail-
way Labor Act, as amended from time to time, or
any labor organization (other than when acting as
an employer), or anyone acting in the capacity of
Officer or agent of such labor organization. [The
health care amendment deletion of July 26, 1974,
Public Law 93-360 etc., is omitted.]
(3) The term "employee" shall include any em-
ployee, and shall not be limited to the employees of
a particular employer, unless the Act explicitly
states otherwise, and shall include any individual
whose work has ceased as a consequence of, or in
connection with, any current labor dispute or be-
cause of any unfair labor practice, and who has not
obtained any other regular and substantially equiva-
lent employment, but shall not include any individ-
ual employed as an agricultural laborer, or in the
domestic service of any family or person at his
home, or any individual employed by his parent or
spouse, or any individual having the status of an in-
dependent contractor, or any individual employed
as a supervisor, or any individual employed by an
employer subject to the Railway Labor Act, as
amended from time to time, or by any other person
who is not an employer as herein defined.
Second it is readily concluded that the Act's employer
and employee exclusions, in clearly not being inclusive
of OPIC as a claimed nonprofit political action organiza-
tion, or OPIC's employees as a class, do not by their
terms of exclusion advance OPIC's position of lack of
Board jurisdiction, any more than does the varying
extent of Board declination of jurisdiction over certain
other businesses by rule, which businesses equally clearly
are of specific nature discernibly other than that of
OPIC, cf. or 103.1 colleges and universities; 103.2 sym-
phony orchestras; and horseracing and dogracing indus-
OHIO PUBLIC INTEREST CAMPAIGN 293
tries. Nor it would seem, are the specific characteristics
of any such industries, as therein considered and evaluat-
ed, particularly 103.3 (e.g., seasonal business, high degree
of state regulation, and high employee turnover in the
horseracing and dogracing industries) to be deemed de-
finitive or controlling on the considerably different
OPIC business issues that are presented herein; and in
my view, particularly so where employee turnover relat-
ed to failing to make quota, was a major element in
origination of the union activity herein. The "employee"
coverage of Section 2(3) is very broad, with specified ex-
clusions not encompassing OPIC's employees. On the
other hand OPIC accurately notes there is no specific
reference in the above to private political action organi-
zations.
Section 14(c)(1) referenced therein moreover provides
generally that:
The Board, in its discretion, may, by rule of deci-
sion or by published rules adopted pursuant to the
Administrative Procedure Act, decline to assert ju-
risdiction over any labor dispute involving any class
or category of employers, where, in the opinion of
the Board, the effect of such labor dispute on com-
merce is not sufficiently substantial to warrant the
exercise of its jurisdiction: Provided, That the
Board shall not decline to assert jurisdiction over
any labor dispute over which it would assert juris-
diction under the standards prevailing on August 1,
1959.
In exercising its discretion by rule, the Board has spoken
of limiting an exercise of its fullest jurisdiction to cover-
age of "enterprises whose operations have, or at which
labor dispute would have, a pronounced impact on the
flow of interstate commerce." In its establishment of
standards by rule the Board has otherwise expressed an
adherence to broad rule principles that it will cover busi-
nesses that, "have a substantial impact on commerce";
and, as well, that, "will not result in an unmanageable in-
crease on the Board's caseload." Id. OR 103.1-3.
It is preliminarily concluded, in light of the Board's
(nonspecific standard) jurisdictional approach in Califor-
nia Medical Assn., supra, and particularly in light of the
parties' full litigation of the nature of OPIC's publica-
tions and subscriptions at hearing, and their essential
joinder on that issue in brief, that it would seem appro-
priate in this case to address the issue of applicability of
the Board's publishing company standards, albeit the
same was not set forth in a specific allegation in the
complaint.
In general, the Board will assert jurisdiction over
newspaper publishing companies that hold membership
in or subscribe to interstate news services, or publish na-
tionally syndicated features, or advertise nationally sold
products, if the gross volume of business of the particular
enterprise involved amounts to $200,000 or more per
annum, Bel!vale Employing Printers, 122 NLRB 350
(1958); and even albeit that a significant amount thereof
may be in revenue received from other source, e.g., job
printing, cf. Berea Publishing Co., 140 NLRB 516 (1963).
The Board will also assert jurisdiction over other type
publishing enterprises, and it has heretofore done so on
showing of the business meeting the Board's established
(general) nonretail standard of $50,000 (direct and/or in-
direct) inflow, cf. Roberts Press, 188 NLRB 454, 457-458
(1971), enfd. 451 F.2d 941 (2d Cir. 1971); and on similar
nonretail outflow considerations, cf. Stor-Ad Printers, 131
NLRB 556, 557 (1961). See generally Siemons Mailing
Service, 122 NLRB 81, 85 (1958). In an appropriate case,
e.g., one with clear showing of such a business meeting
retail standard of $500,000 gross revenues, with an evi-
denced statutory jurisdictional requirement, the same
would be sufficient for assertion of jurisdiction of a pub-
lishing company that also engaged in retail sales. Cf.
Mann Products, 128 NLRB 546, 547 (1960), on the appro-
priateness of an application of either retail on nonretail
standard to a single-integrated business with both retail
and nonretail business aspects. See and compare Square
Binding Co., 146 NLRB 206 (1964).
On the underlying reasoning for the Board's prior gen-
eral expression of reasonable assurance that an employ-
er's retail operation meeting an established $500,000
gross revenue retail standard will cover all retail indus-
tries tending to have a pronounced impact on commerce,
cf. Carolina Supplies & Cement Co., 122 NLRB 88 (1958);
and on the requirement nonetheless of a statutory juris-
dictional showing in gross revenue standard cases, cf.
Catalina Island Sightseeing Lines, 124 NLRB 813, 815
(1959). Indeed, in establishing the above basic nonretail,
retail, and newspaper publishing standards demarcating
the discretionary jurisdictional monetary line below
which it would decline to assert jurisdiction the Board
earlier opined jurisdiction will be asserted thereby over
all unfair labor practices that exert or "which tend to
exert a pronounced impact upon commerce." Cf. Siemens
Mailing Service, supra, 122 NLRB at 84; Carolina Supplies
& Cement Co., supra, 122 NLRB at 90; and Bellville Em-
ploying Printers, 122 NLRB at 352.
OPIC does not itself operate a complete publishing
house. Although OPIC has regularly researched, au-
thored, edited, and laid out its publications in regard to
their content and formats, it has essentially always con-
tracted out the printing of the publications to outside
printing houses. Assuming nonetheless, even in those cir-
cumstances, that OPIC may be concluded to be engaged
in a business publication of, inter alia, the newsletters
and/or newspaper, and that in subscription form and
period of circulation they may arguably be construed to
be a published newspaper, there is still no evidence of-
fered herein that would be sufficient to warrant or sus-
tain a finding that OPIC meets any of the other newspa-
per publishing business criteria that were coterminously
established by the Board as necessary predicate for
Board assertion of jurisdiction over a newspaper publish-
ing business under is established $200,000 gross revenue
standard. Thus, no showing was made of OPIC holding
membership in or subscribing to any interstate news
services; nor of it publishing nationally syndicated fea-
tures; nor of it advertising nationally sold products. It is
accordingly preliminarily concluded and found that the
General Counsel does not prevail to the extent any
urging is to be made for Board assertion of jurisdiction
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on a basis of OPIC's engagement in a newspaper publish-
ing business.
Assuming also for present purpose, without necessarily
so finding, that OPIC may appropriately be otherwise
viewed as having engaged in a commercial publishing
business activity of some other sort over which the
Board would assert its jurisdiction, it is no less apparent
from the evidence such as is presented above, that there
is, in any event, insufficient evidence presented to sup-
port a finding that OPIC has met the Board's nonretail
inflow or outflow standard, on any basis. Accordingly,
what at best would appear for further review, under any
remaining aspect of an application of an urged estab-
lished Board publishing standard, is a consideration of
OPIC's publishing activity meeting a retail standard of
$500,000 gross revenues in sales, though with basis for a
statutory jurisdictional requirement itself in a requisite
amount appearing present herein.
It is next to be observed, however, that there was
again insufficient defmiteness in the presented evidence
that the amount of OPICs to be argued retail sales, e.g.,
revenues generated by the (unspecified) number of sub-
scriptions in fiscal year 1982 (and from other source), ac-
tually exceeded $500,000. In contrast there was much
general evidence that there were more commonly contri-
butions of lesser amount than that to occasion a newspa-
per subscription, be it by sale or grant. On the other
hand, it would appear, in light of Arlook's general testi-
mony that within the last 2 months (thus in 1984 and
before hearing) he had observed that subscriptions to
both Citizen Action and Toxic Watch newspapers had
reached 75,000, that OPIC's total in revenues as related
to ($15) subscriptions do now likely well exceed
$500,000, thus seemingly within a timely period for asser-
tion of Board jurisdiction, namely, in the year preceding
hearing, cf. Aroostock Federation of Farmers, 114 NLRB
538, 539 (1955). The jurisdictional issue as presented
herein, however, does not in any event end there. This is
so because the parties are in further fundamental dispute
both over whether OPIC is actually engaged in any
commercial publishing, or other commercial activity; and
over the nature of OPIC as a political action organiza-
tion, and a fundamental effect thereof on the matter of
Board asertion of jurisdiction over such an organization.
In regard to contended commercial activity of the
type it is contended that OPIC has engaged in, the Gen-
eral Counsel has advanced reliance on a Board assertion
of jurisdiction over a private nonprofit incorporated as-
sociation in California Medical Assn., supra, in which it
was determined by the Board that that employer had en-
gaged in certain commercial publishing activities in
regard to the publication of its medical journal; and the
General Counsel would also rely on the Board's asser-
tion of jurisdiction similarly over a determined commer-
cial publication of a newspaper by a religious organiza-
tion where it was urged the newspaper was published in
a manner compatible with the views of the religious or-
ganization, in First Church of Christ Scientist, supra.
OPIC's contra-argument is essentially an assertion that
OPIC does not sell subscriptions to its newsletter or
newspapers, in the commercial sense. OPIC has thus
urged in brief to the contrary that fundamentally, "Can-
vassers do not sell newsletters or subscriptions, they pro-
mote the organizations [sic] political agenda and solicit
financial, verbal, written and moral support for that
agenda. Individuals who provide the requested support
are sent one or both of the organization's publications
[sic] to recognize, reinforce, and, at times, renew that
support on another issue." OPIC further contends that it
is not even to be viewed as a nonprofit charitable organi-
zation, but a political action organization, as has been
recognized by the IRS.
As the General Counsel would have it generally
noted, it has been long held by the Supreme Court that
Congress has empowered the Board to assert jurisdiction
over a significant business activity of a nonprofit charita-
ble organization, e.g. one conducting an insurance busi-
ness, just as well as that of the regular commercial enter-
prise, Polish National Alliance, supra, 322 U.S. at 648. In
St. Aloysius Home, supra, 224 NLRB at 1345, a case aris-
ing after Congress' deletion in 1974 of the nonprofit
health care exclusion theretofore contained in Section
2(2) of the Act, the Board then stated, with application
to nonprofit charitable, or other (referenced) "worthy
cause" employers, "Now, the only basis for declining ju-
risdiction over a charitable organization is a finding that
its activities do not have a sufficient impact on interstate
commerce to warrant the exercise of the Board's juris-
diction." 3
In California Medical Assn., 223 NLRB 201, 202
(1976), a membership association case relied on by the
General Counsel, the Board asserted jurisdiction over the
employer, a nonprofit corporation (CMA) that was en-
gaged in scientific and educational activities. Although
observing that it had not theretofore established a juris-
dictional standard for associations such as CMA, the
Board further concluded that it was unnecessary to do so
in that case as CMA's gross income had exceeded any
standard the Board was likely to apply. The facts as
found in that case reveal that of $3 million received in
dues from its members, $2-1/2 million was forwarded to
the American Medical Association (AMA) for which
service CMA received $25,000 in income from AMA,
which added to the $500,000 in CMA dues income re-
tained. In rejecting CMA's claim that it would not effec-
tuate the purposes of the Act for the Board to assert ju-
risdiction the Board stated, "It is well established that
the test used by the Board in determining whether to
assert jurisdiction over a nonprofit organization is wheth-
er it is engaged in activities which are 'commercial in the
generally accepted sense." The Board specifically found
that CMA's publication of its monthly medical journal
was a commercial as well as an educational venture, as
was evidenced by the substantial revenue ($230,000) de-
rived from advertisements of nationally sold products
therein, and from the sale of subscriptions and reprints
3 In that connection, for learned treatise's general observation of
henceforth entity classification being based on detertruned substantive
purpose, and Board Jurisdictional assertion on the basis of the same juris-
dictional standard that applies to the correspondent proprietary organiza-
tion, cf Developing Labor Law, 2d ed., Vol. II, Ch. 30, S. 18. Nonprofit,
Private Educational and Religious Institutions.
OHIO PUBLIC INTEREST CAMPAIGN 295
(seemingly $115,000), 4 thus a total of $345,000 in gross
revenue income was derived from the publication, sale,
and distribution of the medical journal alone, to say
nothing of related revenues of certain specialized tax and
(tape) sale subsidiaries of $159,000 and $14,000 respec-
tively. CMA had also received $44,500 in rental fees
from exhibitors at its annual meeting. The Board also
noted, inter alia, that the Association had also made sub-
stantial expenditures for interstate travel of its members
and staff ($67,900); that it had paid substantial sums of
money to firms outside California for its employees' pen-
sion plan ($87,541); that it had paid commission fees to
out-of-state sales representatives ($31,000) for their solici-
tation of journal-subscription services; and that it had
mailing costs ($30,000).
The Board further observed that it had much earlier
asserted jurisdiction over a similar association in Ameri-
can Medical Assn., 39 NLRB 385, 387 (1942). However,
there the Board had previously asserted jurisdiction over
AMA's medical magazine and pamphlet publishing in-
dustry on showings that of AMA's purchases of raw ma-
terials (principally paper) valued at $371,494, 90 percent
had been purchased outside the State of Illinois, where
AMA's publishing house was located; and that 90 per-
cent of its two paid weekly circulations (viz, Journal cir-
culation of 98,002, and Hygeia circulation of 110,000) in
turn was shipped out of State.
The Board had otherwise also earlier described its ap-
proach to an assertion of jurisdiction in connection with
commercial activities of religious organizations, in First
Church of Christ case, supra, 194 NLRB at 1008, as, "Al-
though it is the Board's general practice to decline juris-
diction over nonprofit religious organizations, the Board
does assert jurisdiction over those operations of such or-
ganizations that are, in the generally accepted sence,
commercial in nature," There, the (employer) First
Church's contention was that its publishing activities, in-
clusive of its publishing a newspaper of daily circulation
throughout the world of 230,000 (with an annual gross
income that exceeded $1 million, and with purchases
across state lines which exceeded one million), and in
manner compatible with its religious point of view (but
one also otherwise with usual newspaper features, includ-
ing subscription to interstate news services, syndicated
features, and national advertisements), and its publication
of other religious publications, with worldwide (inclusive
seemingly of nonretail) sales and distribution, and its op-
eration of a significant number of apartment buildings
under a related trust (with gross revenues in excess of
$500,000, and with out-of-state purchases approximately
$50,000 annually), were not commercial enterprises es-
sentially on the basis of its religious motive in engaging
in such activities. The Board, however, noted with a
stated reliance on Board earlier holding in Sunday School
Board of the Southern Baptist Convention, 92 NLRB 801
(1950), that it had long held, "that it was immaterial that
4 The $115,000 figure is derived as follows There were 26,000 (seem-
ingly) dues-paying members, $4 of each of whose dues was determined
by the Association as in support of the publication (thus $104,000), which
sum, together with specific out-of-state journal purchases ($7000) and re-
prints ($4000) amounted to the $115,000 additional revenues herein
viewed generated from journal publication and/or arguable sales.
an employer's activities may be motivated by consider-
ations other than those applicable to enterprises which
are in the accepted sense commercial." The First Church
of Christ, supra, 194 NLRB at 1088.5
The recitement of the above, inter alia, salient facts
present in California Medical Assn., supra, depict such
clear and varied aspects of commercial operations of
CMA and their effect on interstate commerce, in their
individual and combining amounts, and in their nature,
such that, whether with eye to aspect of journal publica-
tion (with nationally advertised products) generating rev-
enues in excess of $200,000; or with eye to total retail
sales by CMA (with its subsidiaries) exceeding $500,000;
or, with view to one or more varying arguable aspects of
nonretail, direct and/or indirect, inflow, or outflow, of
goods, services, etc. exceeding $50,000, the same, in my
view, makes it appear clear enough that the California
Medical Assn., case, supra (and for that matter, the case
of First Church of Christ, supra, on its own clear com-
mercial facts, as well), are so dissimilar in scope and
breadth of commercial factual reach as to be not helpful,
if not, more appropriately to be viewed as simply inap-
posite on their facts. Particularly would this appear to be
so when it is additionally observed presently in contrast
on subjects (only) considered, that OPIC, as noted earli-
er, has not been shown, to have met any direct and/or
indirect, nonretail inflow, or outflow standard; its publi-
cations contain no advertisements of nationally sold
products, independently generating any commercial
income; the extent of any interstate travel of manage-
ment, staff, and canvassers clearly did not exceed
$50,000, was otherwise left indefinite, and on this record,
was most likely, considerably less. OPIC was also not
shown to have rental properties with significant income;
and it has not been shown that OPIC has purchased
from interstate source and benefit/plan. Despite gross
revenue and statutory showing, an addressment of discre-
tionary jurisdictional standard is required. Cf. Greater
Boston YMCA, 243 NLRB 447 (1979).
The General Counsel's arguments essentially rest on
the distribution of OPIC's publications being commercial
activity. There remains otherwise to consider Respond-
ent's specific arguments that Catholic Bishop of Chicago,
supra, applies to it as a political action organization, pre-
cluding a Board assertion of jurisdiction; and, in that
connection, the General Counsel's remaining contention
that Catholic Bishop of Chicago, supra, is inapposite, and
related argument, contrary to OPIC, that the Board has
asserted its jurisdiction heretofore over an employer in
lobbying circumstances, Disabled American Veterans,
supra.
5 The employer in the Sunday School Board case, supra, itself was a
separate Tennessee corporation, operating a religious publishing house.
That employer was controlled and managed by the Southern Baptist
Convention, an official agency of the Southern Baptist religious denomi-
nation. The publishing house edited, published, and by gift or sale, dis-
tributed religious literature to churches' Sunday schools, and Bible
schools affiliated with the Convention in several States. The employer
also operated a local retail book store. However, the Board asserted its
junsdiction over the publishing house as an employer affecting com-
merce, on the basis of the publishing house's out-of-state sales exceeding
Board existing standard for assertion of jurisdiction.
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c. The spec* "political action" contentions
OPIC's principal argument that the Board does not
have jurisdiction over it essentially proceeds from argued
analogy that a construction of the Act by the Board by
which the Board would assert jurisdiction over OPIC, a
political advocacy organization, would be contrary to
the holding of the U.S. Supreme Court in NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490 (1970). There a
majority of the Supreme Court, in a five to four decision,
specifically held:
[fin the absence of a clear expression of Congress'
intent to bring teachers in church-operated schools
within the jurisdiction of the Board, we decline to
construe the Act in a manner that could in turn call
upon the Court to resolve difficult and sensitive
questions arising out of the guarantees of the of the
First Amendment Religious Clauses. [Id. at 507.]
In describing the approach followed in reaching that
conclusion the Court had earlier observed:
The values enshrined in the First Amendment plain-
ly rank high "in the scale of our national values." In
keeping with ihe Court's prudent policy it is incum-
bent on us to determine whether the Board's exer-
cise of its jurisdiction here would give rise to seri-
ous constitutional questions. If so, we must first
identify "the affirmative intention of the Congress
clearly expressed" before concluding the Act grants
jurisdiction. [Id. at 501.]
See also id. at 500, and cases cited thereat, for expres-
sion of the essence of the Court's "prudent policy" that
an Act of Congress ought not to be construed to violate
the Constitution if any other possible construction re-
mains available; and see the Court's similar earlier ap-
proach in McCullough v. Sociedad Nationale de Marineros
de Honduras, supra, 372 U.S. at 17, 21-22, in which the
Court stated, "An Act of Congress ought never to be
construed to violate the law of nations if any other possi-
ble construction remains . . ." and that, "there must be
present the affirmative intention of the Congress clearly
expressed." Although the Board itself may and will pre-
sume the constitutionality of the Act, the Ninth Circuit
Court of Appeals has recently had occasion to observe
that does not mean that the Board should ignore consti-
tutional concerns in its choices, cf. Service Employees
Local 399 (Delta Air Lines) v. NLRB, 743 F.2d 1417,
1429 (9th Cir. 1984).
The General Counsel seemingly has first urged that
the Catholic Bishop of Chicago case holding has been
thereafter limitedly applied by the Board to religious ele-
mentary schools. In any event, the General Counsel has
accurately observed that the Board has thereafter contin-
ued to assert jurisdiction over college institutions, with
church relationships, where it is apparent the colleges
are, "primarily concerned with providing a secular edu-
cation rather than inculcating particular religious
values." Thiel College, 261 NLRB 580 (1982); Harbor-
creek School For Boys, 249 NLRB 1226 (1980); and
Barber-Scotia College, 245 NLRB 406, 407 (1979). How-
ever, OPIC has also accurately observed that in a differ-
ent type case the Board has itself recognized the limita-
tion placed on it by the Supreme Court's admonition of a
declination to construe the Act in a manner which
would raise such "difficult and sensitive questions arising
out of the guarantees of the First Amendment Religion
Clauses," cf. Faith Center- WHCT Channel 18, 261 NLRB
106, 107 fn. 2 (1982). In Faith Center, the Board went on
to decline to assert jurisdiction over a religious orgamza-
tion's essentially religious instruction and fellowship TV-
broadcast effort, despite its governmentally required non-
religious programming; and even though Faith Center
had also received donations from like religious institu-
tions for airing the latters' programs, where those pro-
grams were concluded to be, "in furtherance of the same
religious objectives embodied in Channel 18's own pro-
gramming." Id. at fn. 4.
The Board itself thus subsequently declined to assert
jurisdiction over the church-operated TV station in Faith
Center on the basis that the broadcasting there was essen-
tially a "purely religious" activity carried on by a reli-
gious institution or, at the very least, an activity so ancil-
lary to its religious objectives as to warrant the Board to
decline jurisdiction, as it had done in the past, with other
determined "purely" religious, noncommercial activities
of nonprofit religious organizations. See and compare the
other cases cited id. at 107 with those in footnote 3. See
also particularly, Motherhouse of the Sisters of Charity,
232 NLRB 318 (1977), in which a normally viewed com-
mercial endeavor of an employer's (The Order) provid-
ing food, power, and laundry services to a nursing home
The Order had leased to a hospital caring for retired
nuns of the Order and close relatives of nuns of the
Order was concluded by the Board to be unique services
being provided on actually a noncommercial basis, in
that the services were provided essentially, "for the pur-
pose of enabling infirm members of the Order to partici-
pate in the religious community" which services were
thus concluded to be essentially ancillary to, and in fur-
therance of, the religious objectives of the religious
Order, id. 319. But see also and compare id., fn. 3, and
cases cited thereat in which the Board also noted it con-
tinues to draw distinction between activities of a reli-
gious organization "purely religious," and those not.
Indeed, the Board has more recently observed that it
will identify such an organization's activity by the nature
of that activity's primary concern, e.g., whether it be of
child custodial care nature or (religious) education as
claimed, cf. Salvation Army Day Care Center, 271 NLRB
195 (1984); 6 and see particularly the cited representation
case of same at 247 NLRB 413 (1980).
OPIC's basis argument for the contended analogy to
the religious institution in Catholic Bishop of Chicago is
essentially that OPIC's nonprofit engagement in a variety
of political advocacy activities, including lobbying, publi-
cation, and communication on behalf of its members, and
6 Chairman Dotson expressed the view in that case that he would
follow prior Board policy as set forth in Meng Quong Children's Center,
210 NLRB 899 (1974), and decline to exercise Jurisdiction over nonprofit
charitable institutions except when a particular class of these institutions
has a massive impact on interstate commerce
OHIO PUBLIC INTEREST CAMPAIGN 297
like-minded citizens of the State of Ohio, are clearly
themselves within the scope of, and (essentially) "broad-
est protection" of, the first amendment, Buckley v. Valeo,
424 U.S. 1, 14-15 (1976). The Supreme Court there
stated:
Discussion of public issues and debate on the
qualifications of candidates are integral to the oper-
ation of the system of government established by
our Constitution. The First Amendment offers the
broadest protection to such political expression in
order "to assure [the] unfettered interchange of
ideas for bringing about of political and social
changes desired by the people.
The First Amendment protects political associa-
tion as well as political expression. The constitution
right of association explicated in NAACP v. Ala-
bama, 357 U.S. 449, 460 (1958), stemmed from the
Court's recognition that "[e]ffective advocacy of
both public and private points of view, particularly
controversial ones, is undeniably enhanced by group
association."
OPIC then argues that the employment relationship be-
tween OPIC and its canvassers who are its spokespeople
in communicating its positions on issues to members of
the public, and soliciting their support, and who are its
principal fundraisers have equally clear first amendment
implications, Village of Schaumberg v. Citizens for a Better
Environment, 444 U.S. 620 (1980).
As urged in brief, OPIC would have the Board consid-
er the Court's conclusions therein following its review of
a series of cases dating back to the 1930s, in which the
Court then noted:
Prior authorities . . . clearly establish that charita-
ble appeals for funds, on the street or door to door,
involve a variety of speech interests—communica-
tion of information, and dissemination and propaga-
tion of views and ideas, and the advocacy of
causes—that are within the protection of the First
Amendment. Soliciting financial support is undoubt-
edly subject to reasonable regulation but the latter
must be undertaken with due regard for the reality
that solicitation is characteristically intertwined
with informative and perhaps persuasive speech
seeking support for particular causes or for particu-
lar views on economic, political, or social issues and
for the reality that without solicitation the flow of
such information and advocacy would likely cease.
Canvassers in such contexts are necessarily more
than solicitors for money. Furthermore, because
charitable solicitation does more than inform private
economic decisions and is not primarily concerned
with providing information about the characteristics
and costs of goods and services, it has not been
dealt with in our cases as a variety of purely com-
mercial speech.
III
The issue before us, then, is not whether charita-
ble solicitations in residential neighborhoods are
within the protectiohs of the First Amendment. It is
clear that they are. "[O]ur cases long have protect-
ed speech even though it is in the form of. . a
solicitation to pay or contribute money [citations
omitted]." [Id. at 632-633.]
Although acknowledging the Supreme Court has there
characterized door-to-door solicitation as intertwined
with protected speech, the General Counsel nonetheless
argues the Village of Schaumberg case is also inapposite
as it involved a municipal ordinance prohibiting door-to-
door solicitation by any group that spent less than 75
percent of those funds on charitable purposes; and the
General Counsel contends an application of the Act
herein would not prohibit such solicitation, but at most af-
fects only the manner in which it is to be conducted.
However, OPIC cross-contends that, "the Board's as-
sertion of jurisdiction over the employment relationship
between OPIC and its canvassers would present 'a signif-
icant risk" that its interests protected by the First
Amendment would be infringed.
At the outset, OPIC would have it observed that in
the determination of whether "an affirmative intention
clearly expressed" (test) is necessary, it is not a matter of
resolving the ultimate constitutional issue of whether the
Board's assertion of jurisdiction would entail "excessive
entanglement" of government in the exercise of first
amendment rights (which is the issue only when it has
been determined the Act empowers Board assertion of
jurisdiction) but rather, it is an initial matter of making
"a narrow inquiry whether the exercise of the Board's
jurisdiction presents a significant risk that the First
Amendment will be infringed." NLRB v, Catholic Bishop
of Chicago, supra, 440 U.S. at 502.
OPIC has thus cited as examples demonstrating just
such risk, that an unfair labor practice charge might arise
out of a dispute between OPIC and a canvasser such as
the Charging Party over the prganization's right to
assign certain canvass territory to an individual canvass-
er; arguing it might be charged that such an assignment
was a pretext meant to cover illegal retaliation for pro-
tected, concerted activity. In contrast, the selection of
canvass territory can frequently be a function of OPIC's
political objectives. It might choose to canvass in the dis-
trict of a legislator whose vote is key to opposing legisla-
tion in conflict with OPIC's goals. It is also argued that
the General Counsel would characterize canvass (work)
territory as "a term or conditioh of employment" and
therefore a proper subject of protected, concerted activi-
ty or a mandatory subject for bargaining. As a second
example, OPIC argues, another unfair labor practice
charge might involve the Board in a determination of
whether OPIC discharged an employee for an unlawful
reason, prohibited by the Act; or (otherwise), for failing
to learn, understand and articulate the organization's po-
sition on a particular issue. Or, such a charge might re-
quire the Bord to decide whether the format and content
of the canvasser's "rap," the frequency of publication of
298 - DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the organization's newsletter, the topics and sites of
OPIC news conferences, or the rate of cases in which
the organization intervenes were mandatory subjects of
bargaining, because each arguably has an impact on the
amount of money raisable by, and thus bearing directly
on, the wages to be paid to canvassers. OPIC argues it
was precisely issues analogous to these that led the Court
in Catholic Bishop of Chicago, supra, to conclude that
"We see no escape from conflicts flowing from the
Board's exercise of jurisdiction over teachers in church-
operated schools and the consequent serious First
Amendment questions that would follow." 440 U.S. at
504.
The General Counsel has in that connection in con-
trast urged as the underlying reasoning explicated in
Catholic Bishop of Chicago, supra, that because terms and
conditions of employment of lay teachers employed at
parochial secondary schools arguably could include ev-
erything that goes on in the school, including education-
al content, collective bargaining could infringe on the
substance of the school's religious teachings. The Gener-
al Counsel has contended that, unlike in Catholic Bishop,
bargaining about terms and conditions of employment of
the canvass employees would not affect the substantive
lobbying efforts of the OPIC organization as a whole,
but only the mechanics of its fundraising effort. (But see,
id. at 502-504, for concurrence of the Court with stated
view of occasions for Board impingement on rights guar-
anteed by the religion clauses in the very process of in-
quiry, as well as Board conclusions and resolution there-
of; and an encroachment on management deemed neces-
sarily occasioned by considerations of mandatory collec-
tive bargaining; all of which seemingly in prelude recit-
ment by the Supreme Court lead that Court to conclude,
of the (different) church-teacher relationship in a church-
operated school, "We see no escape from conflicts flowing
from the Board's exercise of jurisdiction over teachers in
church-operated schools and the consequent serious First
Amendment questions that would follow.") The General
Counsel has also urged a determination of Respondent's
motivation in firing the Charging Party herein involved
little or no consideration of Respondent's substantive po-
litical message, but rather a determination of whether the
Charging Party reported sick and/or performed his
work, in accord with the Respondent's procedure (or as
alleged, was discriminatorily terminated under the provi-
sions of the Act). But such an argument on motivation
seemingly was essentially presented and addressed by the
Supreme Court and observed to go to an issue of exces-
sive entanglement relating to the Constitutional issue that
it was not compelled to reach. Id. at 502.
OPIC thus argues in these latter respects seemingly
only the more persuasively herein that the Catholic
Bishop of Chicago, case's analytical "significant risk" ap-
proach has clear application to OPIC's first amendment
guarantees. Resultingly, so argues OPIC, there can be no
question that an "affirmative intent clearly expressed" by
Congress should be viewed a necessary predicate for
present assertion of Board jurisdiction over political ad-
vocacy organizations such as OPIC. In that respect,
OPIC contends examination of the Act, and its legisla-
tive history, has made it clear that Congress simply gave
no consideration to political advocacy organizations;
mid, as noted, it has contended no case has been found of
Board assertion of jurisdiction over a political action or-
ganization.
The General Counsel makes no show of the contrary
in legislative history, but the General Counsel has specif-
ically contended that in Disabled American Veterans, 112
NLRB 864 (1955), the Board has heretofore (and notably
before 1959) asserted jurisdiction over a fundraising arm
of a membership corporation that then used the funds,
inter alia, to lobby Congress for legislation beneficial to
the interest of disabled veterans. This fundraising arm
had raised these funds by mailing unsolicited miniature li-
cense tag key chains to automobile owners nationwide
with a pamphlet, advising the recipient that if the keys
were lost and forwarded to that organization they would
be returned to the owner; requesting a contribution be
made to the membership corporation; and stating that in
any event the recipients could keep the key chains. The
fundraising organization there argued that as a nonprofit
organization it was not engaged in commerce within the
meaning of the Act. However, the Board rejected this
argument and found that the operations of the fundrais-
ing organization were "characteristic of a highly devel-
oped commercial enterprise." Id. at 866. The General
Counsel has relatedly argued that a similar fundraising
technique exists herein, indeed one urged as even more
demonstrably commercial in nature, inasmuch as unlike
in the Disabled American Veterans case, supra, in which
individuals to whom an unsolicited keytag chain was sent
were told they could keep the keytag chain regardless of
whether the recipient donated money, Respondent's pnb-
lished newsletter here is (regularly) received only after a
donation of $15 or more has been first received by
OPIC. Thus, the General Counsel essentially has argued
that OPIC is shown to be engaged in commercial activi-
ties as part of its overall nonprofit work. OPIC argues
this publishing activity "does not transform evangelism
into a commercial enterprise," with reliance on Murdock
v. Pennsylvania, 319 U.S. 105, 111 (1942), in which the
Supreme Court related:
The right to use the press for expressing one's
views is not to be measured by the protection af-
forded commercial handbills. It should be remem-
bered that the pamphlets of Thomas Paine were not
distributed free of charge . . . Freedom of speech,
freedom of the press, freedom of religion are avail-
able to all, not merely to those who can pay their
own way.
OPIC has further argued that in light of the distinct
identity of political advocacy organizations and the ab-
sence of Board assertion of jurisdiction over them specif-
ically, Congress' failure to amend the Act specifically to
exempt such organizations in the face of the Board's
practice of asserting jurisdiction over social service agen-
cies and other "public charities" may not be used to infer
congrssional (tacit) intent to confer jurisdiction. Catholic
Bishop of Chicago, supra, 440 U.S. at 505-506. Indeed, the
failure of Congress to consider such "action organiza-
tions" explicitly, and the failure of the Board to assert ju.
OHIO PUBLIC INTEREST CAMPAIGN 299
risdiction over them previously, both point to the obvi-
ous and correct conclusion: such organizations were
never even contemplated to be "employers in com-
merce" within the meaning of the National Labor Rela-
tions Act. Finally, OPIC argues that neither the General
Counsel's evidence on OPIC's own emphasis on fundrais-
ing techniques, nor connections with sister political ad-
vocacy organizations in other states changes the activity
engaged in by OPIC from being that of a nonprofit
"action organization," which is to be distinguished from
a "public charity" as is presently done under applicable
provisions of the Internal Revenue Code.
Analysis and Final Conclusions
OPIC has presented financial and other records, and
credited related testimony, which warrants conclusion
that OPIC has in origin, and has continued beyond char-
ter amendment, to engage in a significant amount of
charitable, nonprofit, or "worthy cause" research and
public educational outreach work, that is conceded to be
nonpolitical activity, and to which not only certain char-
itable grants are wholly, but also other (canvass) contri-
butions, in part, significantly supportive (albeit the latter
in unspecified amount). However, the same records, and
the overwhelming weight of credited testimony has es-
thblished also convincingly that OPIC was in all material
times, and is now predominantly engaged in various
forms of political activities, inclusive of legislative, but
primarily lobbying activity. It is to this lobbying function
that the charitable research and public educational work,
though the same exist separately and compatibly, has
become now minorily[7] adjunct. It is concluded and
found that OPIC is now fundamentally pursuing its
amended chartered purposes in various social welfare
programs as an IRS tax exempt political action organiza-
tion. It would seem to follow therefrom that for purpose
of addressment of issue of jurisdictional assertion over
OPIC herein, OPIC itself is rightly to be classified, and
considered as a political action organization, with organi-
zational and individual members in association, as is es-
sentially contended by OPIC. However, under the Polish
National Alliance case, sUpra, and other court and Board
cases considered supra (even assuming without so con-
cluding, that OPIC as a nonprofit political action organi-
zation is analogous to a nonprofit religious institution in-
sofar as First Amendment and related Court and BoardIcase considerations) the further analytical question would
appear to lie, as in the case of religious institutions, when
questioned as embarked in commercial ventures with sig-
nificant impact on commerce, as to the nature of ques-
tioned conduct or enterprise activity, of the given organi-
zation, viz, whether the same is established to be of sepa-
rably commercial nature in generally accepted sense,
with significant impact on commerce such as to affect
commerce, or be one otherwise, as "purely religious," or
in some manner equivocally noncommercial, e.g., as in
being revealed to be in actuality, an extension of, or an-
cillary to institutional, organizational, or enterprise oper-
ations over which the Board would itself decline to, or
under the Act or Supreme Court holdings may not,
assert jurisdiction.
It is, however, concluded, question of statutory juris-
dictional consideration being placeable aside as this case
clearly does not present instance of an uncooperating
employer, that I need not reach OPIC's seemingly
weighty otherwise arguments based on coequal claim of
protected first amendment guarantees such as to place its
own operations as here questioned, within application of
the guiding principals of the holding in Catholic Bishop of
Chicago, supra. This is so because on the facts of OPIC's
operations such as have been presented in this case, I am
otherwise fundamentally not persuaded by the offered
evidence of record, nor by the General Counsel's case
urgings thereon, that the Board would assert its jurisdic-
tion over OPIC under any of the Board's presently estab-
lished business standards; nor that it should be recom-
mended to the Board that the Board opt to exercise juris-
diction over OPIC publication and/or its other oper-
ations as they are evidenced to be herein.
To begin with, Disabled American Veterans, 112 NLRB
864 (1955), the case solely relied on by the General
Counsel to support contention that the Board has hereto-
fore (and notably before 1959) asserted jurisdiction over
a membership employer that engaged in lobbying, on
close analysis, in my view, simply does not do so. Rather
that case; is an instance of Board assertion of jurisdiction
over a related, but separately incorporated, and Board-
determined clear commercial operation. Thus Disabled
American Veterans (DAV), itself a membership corpora-
tion chartered by Congress in 1932, and headquartered in
Ohio, is shown clearly therein to have been the organiza-
tion that, inter alia, was charged to seek the advance-
ment of the interests of its charges through presentation
and advocacy to Congress of new or corrective legisla-
tion beneficial to disabled veterans and their dependents.
In short DAV was clearly the lobbying membership as-
sociation therein.
In 1941, to raise funds (beyond its membership dues)
for its various purposes, the DAV had initially entered a
joint venture with a private business firm, which firm the
DAV subsequently bought out some 5 years later. How-
ever, that fundraising business operation was thereafter
carried on (for DAY) by a separately incorporated Dis-
abled American Veterans, Inc. (Idento Tag Operation).
Idento Tag, itself located 6 miles from DAV National
Headquarters, conducted a separate operation, which is
revealed therein to have been substantial, and covered:
purchases of almost $2 million from strictly commercial
enterprises, about $514,000 of which goods and supplies
were shipped to it directly from points without the State
of Ohio; on receipt of the components, the fabrication of
the tags, and their assembly with other materials for a
substantial mailing (over 41 million sets throughout the
United States); and the handling of returns, and tabula-
tion of receipts (about $4,762,000, of which approximate-
ly $4,449,000 was contributed by car owners from out-
side the State of Ohio). It was the totality of these Indeto
Tag processes that was determined by the Board to be,
"characteristic of a highly developed commercial enter-
prise." As to one conceivably noncommercial feature as
there viewed by the Board, viz, that a recipient was told
that there was no obligation to return the tags, the Board
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concluded, "[Wle deem that factor to be the end product
of a carefully planned selling program. We consider
Idento Tag's method of distributing the license identifica-
tion tags a highly specialized, and successful, sales tech-
nique intelligently grounded on the nature of the product
offered and the characteristics of the seller." Notably it
was not necessary for the Board to determine whether
Idento Tag's business activity was there to be deemed a
wholesale, or retail distribution. The Board did, howev-
er, and significantly so, note that it was not relying on
the DAV's own out-of-state sales from its National
Headquarters of $94,000 to assert its jurisdiction there.
In addition to the Disabled American Veterans case, in
my view, thus not being instance of a prior Board asser-
tion of jurisdiction over the lobbying membership asso-
ciation, not only are the commercial features of Idento
Tag operation in that case otherwise distinguishable in
their clear and significant impact on commerce, as com-
pared with the absence of same in OPIC's operations as
shown herein, it seems to me that there is also a discerni-
ble difference in product and purpose offering that bears
on construction of a commercial sale operation in the
former, but not the latter. The license tag key, along
with offered service that if keys were lost they would be
returned more clearly portrays a product use and serv-
ice. In contrast OPIC's subscription publication distribu-
tion, particularly with the other uses of the publications
evidenced, seems with more ready appearance, and thus
distinguishable, as being if not a tool used in direct exten-
sion of its chartered purposes, albeit with consumer fi-
nancial assistance, then at least, an operation so centrally
relating to OPIC's basic functions in both educational
and political action purposes, as to be properly deemed
in any event, but ancillary to OPIC's political advance-
ment of its chartered social welfare programs, in both
areas, for the Ohio public consumers. In that regard,
OPIC's heavy reliance on its publications throughout its
entire operations would confirm and support the same
broadly.
The nature of OPIC's operations to date as have in
detail been presented herein, and viewed overall from
origin to date, could not in more markedly convincing
manner reveal that OPIC has been engaged at all materi-
al times in all its various aspects of identification and re-
search of public concern issues, and its pursuit of meth-
ods of involvement of citizens in public education and
lobbying efforts, and (apart from the questioned subscrip-
tions) that OPIC is not engaged in commercial endeav-
ors, but involved with issues of public concern; and sig-
nificantly so, primarily with and for Ohio public consumers
and citizens. In short, the thrust of OPIC's operations to
date are shown rather clearly herein to have been other-
wise overwhelmingly local and not commercial. It is no-
table that even OPIC's lobbying of Ohio national repre-
sentatives, and/or, when acting in affiliation with other
like organizations, lobbying at a national level, if success-
ful on OPIC's issues of concern, will have a pronounced
effect locally.
It is also notable that the OPIC contributor receives
the same subscription, whether the contribution is $15, or
more. The fact is that OPIC has made heavier use of its
publications, in manners other than in their relation to
subscriptions. The fact is also inescapable that in terms of
the scope of present operation the gross revenues of
OPIC supporting the same are overwhelmingly from
canvass contributions; that the number of contributions
that are not of subscriptions amount far exceed those that
are; and in the canvassing operation single publication
distribution, and subscription, are both integral parts. I
am convinced from all the above that even singling out
OPIC's publication subscriptions do not in the end por-
tray a commercial endeavor in retail sales in a generally
accepted commercial sense, but the same are rather but
integral and direct part in the achievement of OPIC's
own educational and political objectives, as OPIC has
urged; and finally that they have their most immediate
and sustaining, and thus most material effect on con-
sumer interests of local citizens of Ohio. To be sure, the
gross revenues of OPIC in material times are substantial,
over $1 million and apparently to date, growing; and the
admitted $36,000 in direct out-of-state purchases would
be certainly sufficient to satisfy any statutory jurisdiction,
if applicable. But neither similar such gross (commission)
revenues, nor mere evidence of statutory jurisdiction
have occasioned the Board to assert its jurisdiction, if it
has concluded an industry is primarily one local in
nature and effect, e.g., cf. Seattle Real Estate Board, 130
NLRB 608, 610-611 (1961).
Finally, with regard to the evidence presented of fees
charged by OPIC for services rendered to others on this
record the related activities have been shown for the
most part to appear ancillary to, or directly related again
to, OPIC's own objectives. Even if, for the sake of argu-
ment, it is to be concluded that certain of the same are
arguably now trending to becoming commercial in
nature in passing from incomplete actual cost (mere
printing cost) and actual cost (printing, staff and over-
head), to most recently actual costs—plus (generating
some amount of income), the same, in any event, on this
record, was not shown to have been appreciable, if exist-
ent at all in fiscal year 1982, nor definitive enough in
recent development so as to be viewed as having any
generally significant bearing on the disposition of the
present jurisdictional issue.
Apart from the above urged case of Disabled American
Veterans, the parties have cited no other Board precedent
of an assertion of jurisdiction over a primarily lobbying
membership association, or a political action organiza-
tion, such as OPIC. Nor has my own research illumined
any, though it has brought to light that the Board may
have presently before it a case involving some similar
issues as considered here.7
It is in the end concluded and found that OPIC is pri-
marily a nonprofit political action organization, with or-
ganizational and individual members in association, and
an organization of a type over which the Board appears
7 The case is Citizens Action Coalition of Indiana, JD-53-85, which
issued 28 February 1985. There Administrative Law Judge Claude R.
Wolfe, on the facts presented before him in that case, reached many of
the same ultimate conclusions that I have reached above on the facts as
presented herein. It would notably appear that the employer therein, Citi-
zen Action Coalition of Indiana, seemingly is the same organization at
which certain canvassers of OPIC have cross-tramed as earlier noted
herein.
OHIO PUBLIC INTEREST CAMPAIGN

301
not to have heretofore directly asserted jurisdiction. It is
concluded that the General Counsel has failed to
produce convincing evidence that OPIC, in regard to its
newsletters/newspapers publication and distribution ac-
tivities, meets the Board's newspaper publishing stand-
ard, or any other standard heretofore applicable to pub-
lishing industry, as OPIC's engagement in publication
and distributions, and particularly through its use of sub-
scription award on receipt of contribution of $15 or
more, is not convincingly on this record shown to be a
commercial endeavor, in a generally accepted sense. For
that matter, it would appear, that the Board in previous-
ly establishing its jurisdictional standards may not have
had in mind their application to a primarily political
action organization such as OPIC. In any event, and
apart from any statutory jurisdictional consideration, it
does not appear that OPIC has engaged in any other
commercial endeavor resulting in its being in commerce,
or affecting commerce, in any significant impacting way.
Rather, it would appear that OPIC herein is engaged in
operations that are primarily local, and where otherwise,
producing, inter alia, local effect. Finally, it does not
appear from evidence presented herein that labor strife at
OPIC would affect interstate commerce in any substan-
tial manner.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed/.
ORDER
Accordingly, for all of the above reasons, it is recom-
mended the complaint be dismissed in it entirety because
the General Counsel has not established Board jurisdic-
tion over OPIC under any of the Board's established
standards; and because on the basis of the facts and con-
clusions reached, it does not appear otherwise that it
would effectuate the purposes of the Act for the Board
to assert any jurisdiction it may have over any of OPIC's
operations as shown.
8 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.