Overbrook School for the Blind

National Labor Relations Board - Board Decisions

Sep 25, 1974

213 N.L.R.B. 511 (N.L.R.B. 1974)

OVERBROOK SCHOOL FOR THE BLIND 511
Overbrook School for the Blind and American Federa-
tion of Teachers , AFL-CIO, Petitioner. Case 4-
RC-10781
September 25, 1974
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On March 21, 1974, the Regional Director for Re-
gion 4 issued a Decision and Direction of Election in
the above-entitled proceeding finding, contrary to the
Employer's contention, that it would effectuate the
purposes of the Act to assert jurisdiction over the
Employer herein, and directed an election in a unit of
"all full-time and regular part-time teachers including
guidance counselor, librarian, assistant librarian and
field worker employed by the Employer at its school
.... " in Philadelphia, Pennsylvania. Thereafter, in
accordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for re-
view of the Regional Director's Decision, on the
ground, inter alia, that the Regional Director departed
from Board precedent in asserting jurisdiction herein,
and that the petition should be dismissed because the
school operated by the Employer is essentially local in
nature and so financially dependent upon and subject
to the close scrutiny and supervision of the Common-
wealth of Pennsylvania that it would be contrary to
the purposes of the Act for the Board to assert its
jurisdiction.
On June 17, 1974, the National Labor Relations
Board by telegraphic order granted the Employer's
request for review. Thereafter, the Employer and the
Petitioner filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the briefs of the parties, with respect
to the issue on review and makes the following find-
ings:
The Employer, a nonprofit corporation originally
created by an act of the Pennsylvania legislature in
1834, operates a school for the instruction of blind
and deaf-blind children which is located in Philadel-
phia, Pennsylvania. This enabling act provided funds
for the school's original building and lot and author-
ized payment by the Commonwealth of Pennsylvania
of tuition for every indigent pupil of the Common-
wealth taught in the school.
At the present time, pursuant to the School Laws of
Pennsylvania, 1949, as amended, the Pennsylvania
Department of Education approves and authorizes
tuition payments to State-approved schools, such as
Overbrook, which meet the requirements and stan-
dards set forth by the department. These standards
are concerned with the physical facilities as well as
staffing and instructional matters. Thus, there are
standards requiring conformity to department regula-
tions regarding, inter alia, class size , curriculum, certi-
fication of the professional staff, and even the
materials, equipment, and supplies used in the school.
In addition to the above standards which must be met
to obtain approval, the Department of Education
through its Bureau of Special Education reevaluates
such approved private schools a minimum of once
every 5 years or, upon the request of two or more
school districts, a reevaluation may be made as
deemed necessary. Depending upon evaluations
made by the department, a school may either be ap-
proved or disapproved for payment of tuition.
Schools with programs found to be deficient must
either make improvements or lose their approved sta-
tus and thus the payments of tuition for the Pennsyl-
vania residents. The Employer is currently required to
make improvements by September 1974 relating gen-
erally to curriculum development and psychological
services for students. While the Employer may exer-
cise its own discretion in correcting those areas re-
quired by the department, failure to make such
corrections could cause it to lose its approval. In addi-
tion to the controls and standards implemented by the
department, the Employer is also required by the Act
of 1834 to submit an annual report on its condition to
the Pennsylvania legislature, including a statement of
the total number of its pupils, the number of indigent
pupils and their residences, and a statement of the
school's receipts and expenditures during the preced-
ing year.
The Employer presently provides special education
at its school for approximately 220 blind and deaf-
blind students, 196 of whom are residents of Pennsyl-
vania. All but 12 of the student population reside on
the campus of the school. Pennsylvania residents can-
not apply directly to the school but must be referred
through I of 25 "Intermediate Units" created by the
Pennsylvania legislature to provide special education
and vocational schools. Prior to approval or disap-
proval by the Intermediate Units, the local school
district of the student must decide whether a child
should be placed in the special education school. Fi-
nal approval is authorized by the Department of Edu-
cation. Once a child is approved for placement in the
school, the local school district pays 25 percent of the
child's tuition and the remaining 75 percent is paid by
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Commonwealth. Parents are not required to pay
any of the tuition, but must provide for transportation
and certain other expenses. The Intermediate Unit
and/or local school district receives progress reports
from the school concerning the students placed there.
There is also communication between the school dis-
trict and Overbrook if a family problem arises or
placement is improper.
The school's income is derived from tuition pay-
ments from the Commonwealth and payments from
other States and the Federal Government, and the
remainder from endowments, gifts, and contribu-
tions. There are no private payments of tuition and
the school is not engaged in commercial enterprises.
Under the applicable statute , the Commonwealth is
obligated to pay the costs of tuition and maintenance
which is currently $5,500 per year. Of its anticipated
income for the present fiscal year of $1,833,746, more
than $1 million is expected to be paid by the Com-
monwealth of Pennsylvania and a total of approxi-
mately $250,000 from other States, the Federal
Government, and the District of Columbia to defray
the costs of tuition.
The Employer is governed by a board of managers
who have general powers to conduct, manage, and
direct the affairs of the corporation, including the
employment of supervisors and staff personnel for the
operation of the school. Although by the Act of 1834
the Governor of Pennsylvania is named to be a patron
member of the board of managers , there is no require-
ment that any other board member be a representa-
tive of the Commonwealth or any other governmental
instrumentality.
The employees of the school were afforded the op-
portunity to come under the Commonwealth's Public
School Employees Retirement System and have par-
ticipated in it since 1923. Contributions are made to
it by the Employer and the employees.' All other ben-
' While Petitioner admits this , it contends in its brief that the 1959 Retire-
efits such as wages, fringe benefits, and working hours
are determined by Overbrook.
In view of the foregoing and the record as a whole,
it is clear that the Employer's school for the education
of blind and blind-deaf children functions as an ad-
junct to the Pennsylvania public school system in pro-
viding educational opportunities to the handicapped
children who are residents of the Commonwealth. In
utilizing the Employer's school for this purpose, as
well as other private schools performing special edu-
cation functions, the school system meets its statutory
obligation to provide educational opportunities to
handicapped children which the public schools may
not be equipped to provide through its own facilities.
Thus, the Employer's school has a special relationship
to the public school system which, through the De-
partment of Education, exercises substantial and di-
rect control over the school's operation. Although in
form the Employer is a nonprofit corporation operat-
ing a private school, the thrust of its educational activ-
ities is to supplement the school facilities and
educational program of the public school system. We
find that the activities of the Employer's school are
essentially local in nature, as evidenced by the pre-
dominant number of Pennsylvania resident students
and by substantial local control, and that any labor
dispute in conjunction therewith would not have a
substantial impact on interstate commerce. Pursuant
to the provisions of Section 14(c)(1) of the Act, we
exercise our discretion by refusing to assert jurisdic-
tion over the operations of the Employer herein? We
shall therefore dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.'
ment Code does not apply to these employees and coverage has been extend-
ed erroneously.
2 Pennsylvania Labor Relations Board, 209 NLRB 152 (1974)
3 Inasmuch as the record and the briefs herein adequately present the facts
and issues of the case, the Petitioner 's request for oral argument is denied