Pennsylvania School for the Deaf

National Labor Relations Board - Board Decisions

Sep 25, 1974

213 N.L.R.B. 513 (N.L.R.B. 1974)

PENNSYLVANIA SCHOOL FOR THE DEAF 513
Pennsylvania School for the Deaf and American Feder-
ation of Teachers , AFL-CIO, Petitioner. Case 4-
RC-10780
September 25, 1974
DECISION ON REVIEW AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On March 29, 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 teachers , counselors , assistant teachers
and academic aides employed by the Employer at its
locations in Philadelphia , Delaware , Chester, York
and Lancaster Counties , Pennsylvania . . . ... There-
after, in accordance with Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations,
Series 8, as amended , the Employer filed a timely
request for review of the Regional Director 's Deci-
sion , on the grounds, inter alia, that the school is an
integral part of the Commonwealth of Pennsylvania's
system for the education of deaf children and there-
fore 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 chartered
by an act of the Pennsylvania legislature in 1820, op-
erates schools for the instruction of Pennsylvania chil-
dren with a hearing loss or speech disorder . It has a
main campus on property in Philadelphia which it
owns, and it operates four "county day centers" on
leased property located in Chester , Delaware, York,
and Lancaster Counties , Pennsylvania . Over the years
the Employer has received substantial financial assis-
tance from the Commonwealth of Pennsylvania. In
addition to an initial endowment , there have been
annual tuition payments and appropriations for capi-
tal improvements and operating losses.
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-aided approved private
schools, such as the Employer, which meet the re-
quirements and standards set forth by the depart-
ment. These standards are concerned with the
physical facilities as well as staffing and instructional
matters. Thus, there are standards requiring conform-
ity to department regulations regarding, inter alia,
class size, curriculum, certification 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 Depart-
ment of Education through its Bureau of Special Edu-
cation 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 evalua-
tions made by the department, a school may either be
approved 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. In addition to the controls and
standards implemented by the department, the Em-
ployer is also required to submit a detailed monthly
statement of income and expenses to the Bureau of
Special Education.
Pennsylvania state law has charged the Department
of Education with the responsibility of providing deaf
children of Pennsylvania with the opportunity to re-
ceive a formal education. Pursuant to this law, the
deaf children are required to be educated at either
their local school district, in an intermediate unit, or
at one of three special schools for the deaf, one of
which is the school of the Employer here involved.
Pennsylvania residents cannot apply directly to the
school but must be referred by the Department of
Education. Once a child is approved for placement in
the school, the child's local school district pays 25
percent of the child's tuition and the remaining 75
percent is paid by the Commonwealth. Parents are
not required to pay any of the tuition, but they do pay
a nominal sum of about $40 for hearing aid repairs
and for student activities. The Employer presently
provides special education at its locations for approxi-
mately 550 students ranging from 2-1/2 to 20 years of
age. All are Pennsylvania residents except three stu-
dents from New Jersey.
The major portion of the school's income is derived
from tuition payments from the Commonwealth and
payments from New Jersey and the Federal Govern-
ment, and the remainder from endowments, gifts, and
contributions. As indicated, there are no private pay-
213 NLRB No. 83
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments of tuition and the school is not engaged in any
commercial enterprises. Under the applicable statute,
the Commonwealth is obliged to pay the costs of tu-
ition and maintenance which is currently $5,500 per
student per year. Of its income, $3,092,174, for the
year ending June 30, 1973, $2,848,186 was received
from the Commonwealth of Pennsylvania and ap-
proximately $145,000 from New Jersey and the Fed-
eral Government.
The Employer's school is managed by a board of
trustees, all of whom are private citizens not elected
or appointed by the Commonwealth or any other gov-
ernmental instrumentality. The board has all powers
necessary for such management, including the power
to borrow money and dispose of any real estate
owned by the Employer, appoint the school's officers
including the headmaster, and deal with all fiscal mat-
ters including expenditures for capital improvements
and for care and maintenance of the properties. The
headmaster is responsible for the hiring and discharg-
ing of school personnel, and all benefits and hours are
determined by the Employer. The school staff has
participated in the Commonwealth's Public School
Employees Retirement System since 1923 and contn-
butions are made to it by the Employer and the em-
ployees.'
Various committees, appointed by the president of
the school and subject to approval of the board of
trustees, have different areas of responsibility includ-
ing curriculum, buildings and grounds, and financial
matters. While the school's administrators have the
authority, with board approval, to grant or deny sal-
ary increases or other fringe benefits to school person-
nel, the Employer annually submits its budget to the
Commonwealth for evaluation and discusses its bud-
getary items, including proposed salary increases with
Commonwealth officials. Although the Common-
wealth does not approve or disapprove the budget of
' While Petitioner admits this , it contends in its brief that the 1959 Retire-
ment Code does not apply to these employees and coverage has been extend-
ed erroneously
the school, the record discloses that the board of trus-
tees' discretion in approving salary increases or other
expenditures is limited by the revenue derived from
the Commonwealth for tuition and other purposes.
In view of the foregoing and the record as a whole,
it is clear that the Employer's school for the education
of deaf children functions as an adjunct to the Penn-
sylvania public school system for providing educa-
tional opportunities to 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 education func-
tions, the school system meets its statutory obligation
to provide educational opportunities to handicapped
children which the public school system may not be
equipped to provide through its own facilities. Thus,
as we found in our recent decision in Overbrook
School for the Blind, 213 NLRB No. 82 (1974), the
Employer's school has a special relationship to the
public school system which, through the Department
of Education, exercises substantial and direct control
over the school's operation. Although in form the Em-
ployer is a nonprofit corporation operating a private
school, the thrust of its educational activities is to
supplement the school facilities and educational pro-
gram of the public school system. We find that the
activities of the Employer's school are essentially local
in nature, and that any labor dispute in conjunction
therewith would not have a substantial impact on in-
terstate commerce. Pursuant to the provisions of Sec-
tion 14(c)(1) of the Act, we exercise our discretion by
refusing to assert jurisdiction over the operations of
the Employer herein.2 We shall therefore dismiss the
petition.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.'
2 Overbrook School for the Blind, 213 NLRB No. 82 (1974); Pennsylvania
Labor Relations Board, 209 NLRB 152 (1974).
' 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