The Singer Co.

National Labor Relations Board - Board DecisionsFeb 27, 1979

240 N.L.R.B. 965 (N.L.R.B. 1979)

THE SINGER COMPANY 965 The Singer Company, Education Division, Career Systems, Detroit Job Corps Center and Michigan District Council 77, American Federation of State, County and Municipal Employees, AFL-CIO, Peti- tioner. Case 7-RC 14474 Feburary 27, 1979 DECISION ON REVIEW AND DIRECTION OF ELECTION On September 28, 1977, the Regional Director for Region 7 issued his Decision and Order in the above- entitled proceeding, in which he declined to assert jurisdiction over the Employer because he found that the United States Department of Labor (herein called DOL) exercises such substantial control over the Employer's labor relations policies as to prevent the Employer from effectively bargaining in good faith, and therefore dismissed the petition herein. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the grounds, inter alia. that he made erro- neous findings of fact and departed from officially reported Board precedent. By telegraphic order dated May 30, 1978, the Board granted Petitioner's request for review. There- after, the Employer and Petitioner filed briefs on re- view, and United States Secretary of Labor filed a brief as amicus curiae. The Board has considered the entire record in this case with respect to the issues under review, includ- ing the briefs on review and the amicus brief, and finds that a question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. The Employer, a New Jersey corporation, operates a residential Job Corps center in Detroit, Michigan. under a 2-year contract with DOL.' At the hearing held on September 12, 1977, the Employer and the Petitioner were in agreement as to the appropriate bargaining unit and the unit placement of employees if the Board asserted jurisdiction over the Employer. The parties disagreed, however, on the question of whether the Board should assert jurisdiction over the Employer. The contract In effect at the time of the hearing Vas scheduled to eplire on September 30. 1977. and the Employer had submitted a hd for another contract to continue its operations at the )etroit localion It does not ap- pear from the record that the hid contemplated ans substantial change il the Employer's operations. and the discussion herein of the term, of the Emploer's contract reflects the Emploser's operations at the time of the hearing 240 NLRB No. 130 Under its contract with DOL. the Employer pro- vides job training and other supporting programs ap- proved by DOL for men and women between the ages of 16 and 21. At the time of the hearing the Employer served approximately 210 Job Corps mem- bers enrolled in its program, with a planned capacity to serve 275 corps members. The contract limits the Employer's full-time employee complement to 82, of whom approximately 52 are in the unit sought.2 In general. subject to the overall budgetary limita- tions contained in the contract, the Employer is free to raise wages of employees as long as no employee receives an increase of more than 10 percent over his'/her previous salary and as long as the employees' wages remain within the ranges set for their job clas- sifications (which may allow maximum wages of up to 40 percent over the lowest salary in any particular range). Raises greater than 10 percent for any partic- ular employee, or raises which would bring an em- ployee's wages above the maximum wage for his/her job classification, may be given only if the employee is promoted to a higher classification. The contract further requires that wages shall be comparable to other wages paid in the geographical area where the center is located. The Employer must obtain DOL clearance before hiring any employee whose salary is to exceed $14,000 per year. (No employee in the unit sought is in the group of employees who must have this type of DOL approval.) The Employer is required to offer classes during certain hours of the day and to have counselors and residential advisers available to corps members. Within these limitations, however. DOL does not prescribe hours of operations for the Employer's fa- cility, and the Employer is free to assign employees to shifts within its discretion so long as it meets the manning requirements of the contract. The Employer posts available job openings for bidding by present employees, and employees in the unit sought are sub- ject to a grievance procedure in which the center di- rector makes the final decision on the grievance. The contract requires the Employer to notify DOL of la- bor disputes which could affect the Employer's oper- ations, whether or not they involve the Employer's employees. The control exercised by DOL over the Employer's labor relations is similar to that described in Teledinet Economic Development Company.3 in which a panel of the Board, with Chairman Fanning dissenting. de- clined to assert jurisdiction over two Job Corps cen- ters in Pittsburgh. Pennsylvania, because it found - 'etllloncr sought a unit of all full-tille and regulair part-timc employees. excluding f d service emploees. nurses. confidentiil enmploees. guards and upersiors as defined In the Act 22 1 I RB I t) ( 9I7l THE SINGER COMPANY _ 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that DOL, a Federal agency which was itself exempt from the Act, had substantial control over that em- ployer's labor relations policies, which precluded meaningful bargaining with a union. In the instant case, as in Teledyne, DOL must approve the Employ- er's selection and retention of key staff members (none of whom are in the unit sought), salary ranges and job descriptions for all positions, the kind and number of employee fringe benefits and the amount of money available therefor, changes in the number of employees in each job classification, and changes in employee wages when such changes exceed 10 per- cent. The Employer argued, and the Regional Director found, that Teledyne was controlling in this case and that therefore the Board should not assert jurisdic- tion over the Employer. In its request for review and brief on review, Petitioner contends that the Region- al Director erred in dismissing the petition, on the ground that the record does not support his findings that the Employer has little effective control over la- bor relations. Petitioner further asserts that the Re- gional Director erred in relying on Teledylne, in that the facts in this case show that the Employer has more autonomy in labor relations than did the em- ployer in Teledyne. Finally, Petitioner contends that Teledyne was incorrectly decided and should be over- ruled. DOL in its amicus brief asserts that Teledyne is distinguishable on its facts and that, to the extent that it is not distinguishable, Teledyne is of doubtful validity in light of subsequent Board precedent. 4 We find that the facts in this case are not significantly different from those in Teledyne. However, for the reasons which follow we shall overrule Teledyne and therefore assert jurisdiction over the Employer. We note initially that day-to-day labor relations at Job Corps centers are not directly controlled by DOL. The DOL regulations concerning labor rela- tions at Job Corps centers, published at 29 CFR Â§9 7a. 10-1 13, require that centers operated by con- tractors (such as the instant center and that involved in Teledyne) " [e]stablish labor management relations .in accordance with the provisions of the Na- tional Labor Relations Act .... " The regulations further prohibit DOL from intervening in labor dis- putes involving Job Corps employees. The Employer, as well as our dissenting colleagues, asserts that the Employer's labor relations policies are controlled indirectly by the terms of its contract with DOL. including the specifications contained in its bid. We find that the control exercised by DOL is not so pervasive as to preclude meaningful good- 4(atholi Bhrhop of (hiigrS,, 235 NLRB 776 (1978): Ill l/,otse 41, o a- iin. 235 NLRB 797 (1978). faith bargaining by the Employer. While the Em- ployer must negotiate with DOL over the final terms of its contract, the Employer may negotiate with a union representing its employees concerning the pro- posals which will be included in the Employer's ini- tial bid to DOL. However, even if there were no ne- gotiations concerning the contents of its bid to DOL, the remaining discretion left to the Employer under the contract is broad enough to permit good-faith bargaining over substantial terms and conditions of employment. The Employer alone is responsible for hiring, firing, promotions, demotions, and transfers of employees in the unit sought; and, subject to the broad outlines of its contract with DOL, the Em- ployer is also primarily responsible for establishing the terms and conditions of employment within the unit sought. While there are certain limitations as to wages and certain operational policies, those limita- tions act as outer boundaries, within which the Em- ployer is free to agree to whatever substantive terms and conditions of employment are consistent with its overall operations. Nothing in the Employer's con- tract with DOL, the initial bid submitted to DOL which is incorporated into the contract, or the vari- ous manuals promulgated by DOL prohibits the Em- ployer from agreeing to such items as seniority sys- tems to govern wage increases, promotions, shift assignments, or overtime: job bidding procedures; a system of progressive discipline: or grievance proce- dures, including one leading to final, binding arbitra- tion. Indeed, as noted above, the Employer has insti- tuted both job posting and a form of grievance procedure-both without prior DOL approval. Moreover, pursuant to a Board certification follow- ing an election in which the Employer did not con- test the assertion of jurisdiction by the Board, the Employer has bargained with a union representing its food service employees for approximately 3 years, and shortly before the hearing in the instant case it negotiated a 7-percent increase in wages for food ser- vice employees.5 It was not necessary for the Em- ployer to submit the collective-bargainign agreement concerning its food service employees for DOL ap- proval, and the negotiated wage increase was consis- tent with the limitations in the Employer's budget. Based on the above facts we conclude that the Feder- al Government and DOL do not exercise such con- trol over the labor relations at the Employer's facility as to make the latter incapable of bargaining collec- tively with a representative of its employees. In these circumstances, we conclude that the Employer does not share the Federal Government's exemption from \we note that there is no basis in the record for the Regional Director's speculation that I)OL man exercise less control over food service employees than oerl the educational and counseling staff. THE SINGER COMPANY 967 the Act with respect to this facility 6 The Employer further contends that its operations at the Job Corps center are intimately connected with the Federal Government's operations and that therefore the Board should not assert jurisdiction in this case. Inasmuch as the Board no longer applies the intimate-connection test,7 we conclude that the Employer's reliance thereon provides no basis for de- clining to assert jurisdiction. Accordingly. we find that it will effectuate the pur- poses of the Act to assert jurisdiction over the Em- ployer herein. In accordance with the stipulations of the parties and the record as a whole we find the following unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time emploNees. employed b the Employer at its facilitN located at 10401 East Jefferson. Detroit, Michigan. but excluding food service employees, nurses, confi- dential employees, guards and supervisors as de- fined in the Act. [Direction of Election and Excl.tior footnote omit- ted from publication.] MSIMBI RS P N I. k() AN) Ml RPlm. dissenting: In Teledn Economic Dce/lopfmenr ('omlpantr! the Board declined to assert jurisdiction over the em- ployer, a private corporation which operated two Job Corps centers under contract with the United States Department of Labor (DOL). The facts in this case are virtually identical to those in Teledle. Accord- ingly, and contrary to our colleagues, e would de- cline to assert jurisdiction herein and would affirm the Regional Director's dismissal of the instant peti- tion. As noted in the majority opinion, the Employer operates the Detroit Job Corps center pursuant to a contract with DOE. Petitioner seeks to represent the educational and counseling employees at the Job Corps Center. The Employer contends, and the Re- gional Director concluded, that the contractual con- trol exercised by DOL over the labor relations poli- cies of the Employer is so extensive that the Employer is precluded from exercising the necessary independent judgment to bargain effectively in good faith with regard to wages, hours, and working condi- tions, and, therefore, the Employer shares DOL's ex- emption from the Board's jurisdiction. We agree. Under the DOL contract, the Employer must gain the Federal Government's prior approval of the fol- ' (,'athhc Bishop I( hi, a ,. pllra. h10 tulsi s .. .stto. /f.r. ,awsenal lransporat l, rSel,' , 1, lIi, 240 Ni RB N o 99 1979i 223 NLRB 1040 ( 1976) lowing labor relations matters: selection and contin- ued retention of the Employer's center director and key staff members: job descriptions and selection criteria for all personnel: changes in the number of employees for each job classification: salary range for all positions: the type and amount of employee fringe benefits: vacation and holiday benefits: and training programs for the itmplover's staff of em- ployees. In addition, the Employer is obligated to hire at a minimum wage rate in a given wage range; cannot hire at a starting rate of more than 10 percent above the amount received by the applicant during his or her last employment may not pay employees in excess of wages received bh other persons provid- ing similar services in the same labor market: must emplo? 10 percent of the early number of Job Corps enrollees: is required to have residential advisors on dutN 24 hours per day. 7 dass per week: must con- duct Job Corps classes between certain prescribed hours: is required to obtain DOL clearance before hiring anv emplo ee whose salarv would exceed $140(00 per ear: must maintain an affirmative ac- tion program for the handicapped: aind is obligated to notify DOI of any labor disputes which could affect the Employer's operations. regardless of whether such disputes inLolve the Employer's em- ployees. As a practical matter. DOL's project manager con- tacts the Job Corps center on a dail basis by tele- phone or mail and personally visits the center three to four times a month to review the implementation of the program and to suggest and order changes. The tmployer is also required bh contract to comply with all the terms of the various Job Corps manuals promulgated bv DOL.. and the Government monitors the Fmploer's operations not onlN by personal visits and telephone calls but also through required reports and audits. Moreover, as the Job Corps program di- rector testified, if he exceeded the prescribed dollar amounts in any specific budgetary category. the pro- graml "could lose the contract." The majority opinion correctly notes that the '"da-lo--da , labor relations at the Job Corps centers are not dircctli controlled by DOL." (Emphasis sup- plied.) However, it is clear that DOL indirectly con- trols virtually every important aspect of the center's labor relations. In that regard, as noted above. l)Ol.'s project manager oversees the program's oper- ations on a daily basis. Thus, unlike our colleagues in the majority, we prefer to base our decision herein on substance rather than mere form. The majority opinion also purports to find support for its position in the fact that the Emploser has bar- gained with a union representing its food service em- ployees pursuant to a Board certification based on a THE SINGER COMPANY 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition in which the Employer did not contest the Board's jurisdiction. However, as the Regional Di- rector correctly pointed out: "The fact that the Em- ployer may have voluntarily agreed to a Board-con- ducted election and has bargained with another labor organization concerning the food service employees does not mean that it can be required to do so under the law." Finally, as we noted in Teledyne, the Employer may make no binding commitments without prior DOL approval or, on some minor matters, DOL ac- quiescence. Thus, if the Employer bargains with a labor organization over labor relations matters, any such bargaining would in practical effect constitute an attempt by the bargaining repre- sentative to bargain with the DOL, an exempt instrumentality, through the Employer as an in- termediary.9 On the basis of the foregoing, and consistent with the Board's position in Teledyne, we conclude that the Employer shares the DOL exemption from the Act and, accordingly, the petition should be dis- missed. 1 lc/(dnle . upra at 1041. fn. 4. ' Member Murphy also relies on her dissent in (Catholic Bishop of Chica- go. 235 NlRB 776 (1978)