The Windsor School, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 457 (N.L.R.B. 1972)

THE WINDSOR SCHOOL, INC. 457
The Windsor School, Inc.,' Petitioner and United Fed-
eration of Teachers, Local 2, American Federation of
Teachers, AFL-CIO. Case 29-RM-321
September 29, 1972
DECISION AND ORDER
On February 10, 1972, the Regional Director for
Region 29 dismissed Employer's petition herein on
the ground that Employer's operations do not meet
the Board's jurisdictional standards for private educa-
tional institutions 2 On March 7, in accordance with
the National Labor Relations Board's Rules and Reg-
ulations and Statements of Procedure, Series 8, as
amended, the Employer filed a timely appeal to the
Regional Director' s dismissal on the ground that Em-
ployer is a private profit making institution and there-
fore the jurisdictional standard for private nonprofit
colleges or universities is not applicable. On May 1,
the Board reinstated the petition and remanded the
proceeding to the Regional Director for hearing. Pur-
suant thereto, a hearing was held before Hearing Offi-
cer Jerome Katz on May 18 and 26 and June 2, 1972.
Following the hearing, pursuant to Section 102.67 of
the Rules and Regulations and by direction of the
Regional Director for Region 29, this case was trans-
ferred to the Board for decision. Thereafter, the Em-
ployer and United Federation of Teachers,
hereinafter called the Union, filed briefs, which have
been duly considered.
The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, including the
briefs of the parties, the Board finds:
At the May 18, 1972, hearing, Martin Cohen tes-
tified that he is headmaster of The Windsor School;
that it is a proprietary profit organization which has
a gross annual revenue between $500,000 and
$600,000 derived from student tuition, weekend cram
courses, sale of books, and other miscellaneous items
associated with a school; and that it does not provide
living quarters or dining facilities. Cohen further testi-
fied that Employer has five out-of- state students and
has received $10,000 in tuition fees from foreign coun-
tries. At the June 2 hearing, however, Cohen testified
that Employer's annual income is less than $500,000,
and in substantiation produced a letter dated June 2,
1972, from Employer's accountant stating that the
The names of the Employer and Union appear as corrected at the hear-
The Union filed a petition for the employees involved herein with the
New York State Labor Relations Board on January 12, 1972, 2 weeks before
the Employer filed the petition herein . Apparently, no action has been taken
by the New York Board.
gross income of The Windsor School for the fiscal
year ended March 31, 1972, was less than $500,000.
According to Cohen, there are approximately 220 stu-
dents who pay tuition and fees ranging from $1,500 to
$1,900 per student.
At the May 18 hearing, Cohen testified that The
Windsor School also derived annual revenue of ap-
proximately $60,000 from the weekend cram courses
which it conducts for students from other schools.
However, on June 2, Cohen testified that The Wind-
sor School does not receive any income from weekend
cram courses; that a copartnership composed of Co-
hen and Phillip Stewart, which was formed in 1967,
operates the weekend cram courses and that there is
no joint-employer relationship.' Cohen also testified
that the partnership owns a majority of the corporate
stock; that he, Stewart, and his wife Joyce own the
corporation; that the partnership uses the school's
facilities, but keeps separate books and records, ad-
vertises separately, has a different student body, and
has different teachers. Cohen testified that there are
14 regular full-time teachers and 5 regular part-timers
at The Windsor School, and that there are approxi-
mately 25-30 teachers for the weekend cram courses.
Cohen testified that Employer expects to conduct
a course in driver and traffic safety education in Sep-
tember 1972, and that it anticipates an enrollment in
this course of 700 students paying $125 per course.
The only documentation Employer produced as to
this program consisted of copies of application blanks
from the State Department of Education which had
not been filled in with information required for ap-
proval of the program. Cohen testified that Employer
has not yet advertised the program, and has not ob-
tained cars or teachers. He also testified that he did
not know whether there would be a summer shcool
program in 1972, but that there would be one in 1973.
Employer did not produce evidence of actual
purchases made during the past year. The union ac-
cepted Employer's statement that the school's pur-
chases did not exceed $50,000, of which $9,600
consisted of books purchased from out-of-state
source- 4
In its brief, the Employer contends that the
Board should adopt a jurisdictional standard for pri-
vate schools operated for profit which is in line with
the standard adopted for other community service
industries. In support, the Employer cites cases estab-
lishing a gross volume jurisdictional standard of less
than $500,000, and claims that its operations call for
a similar test.' On the other hand, the Union contends
3 The Union took the position that there is a joint-employer relationship.
4 Pursuant to the Union's request for a subpena , the Employer agreed to
produce books and records on June 2, showing the total annual income, as
well as a list of purchases . At the June 2 hearing , however, Employer faded
to produce any books or records.
The Employer cites the $ 100,000 standard established in Butte Medical
Continued
199 NLRB No. 54
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board should apply the standard applicable
to nonprofit educational institutions as set forth in
Shattuck School, 189 NLRB No. 118, and dismiss the
petition for lack of jurisdiction.
Heretofore, the Board has not established a spe-
cific standard applicable to private, for-profit, educa-
tional institutions. However, jurisdiction has been
asserted over employers engaged in educational activ-
ities operating on a profit basis, whose annual reve-
nues are at least $500,000. Thus in National College of
Business, 186 NLRB No. 76, the Board applied the
retail standard in asserting jurisdiction over a private
profitmaking school engaged in secretarial and busi-
ness skill training. It is also significant that the Board ,
has, in establishing the standard governing nursing
homes, refused to draw a distinction between their
profit or nonprofit status. See Drexel Home, Inc., su-
pra at 1047.
With these principles in mind, we are not sat-
isfied, on the present state of the record, that an
adequate showing has been made to warrant present
examination as to the appropriateness of a distinction,
which we declined to make in Drexel Home, Inc.,
supra, between profit and nonprofit institutions. And,
in any event, the Employer's operations are neither
Properties, d/b/a/ Medical Center Hospital, 168 NLRB 266, involving pro-
prietary hospitals, University Nursing Home, 168 NLRB 263, and Drexel
Homes, Inc., 182 NLRB 1045, involving profit and not-for-profit nursing
homes, Visiting Nurses Association, Inc, 188 NLRB No. 21, involving a
nonprofit nursing service , and Mistletoe Operating Company, 122 NLRB
1534, involving office buildings The Employer also relies upon Charleston
Transit Company, 123 NLRB 1296, applicable to local transit systems with
a gross volume of business of at least $250,000 per annum , Belleville Employ-
ing Printers, 122 NLRB 350, involving newspapers subscribing to interstate
news services whose revenues exceed $200 ,000 annually , Raritan Valley
Broadcasting Company, Inc, 122 NLRB 90, involving radio and television
broadcasting stations with a gross volume of $100 ,000 per year.
sufficiently akin to, nor marked by a like degree of
interstate transactions as those activities to which the
Board has applied a jurisdictional standard less than
$500,000 per annum . We are confronted in this case
with an operation essentially local in character. Al-
though the Board may assert jurisdiction over such
enterprises, if they have a substantial impact on the
free flow of commerce, we are not prepared at this
time to find that a private, secondary, for-profit ed-
ucational institution with gross revenues of less than
$500,000 per annum has the requisite potential for a
disruption of commerce across state lines if the busi-
ness immediately involved were disrupted as a result
of a labor dispute.
For these reasons, and as the Employer's gross
annual revenues are less than $500,000,6 we find that
the Employer's volume of business is insufficient to
meet the minimum amounts required for an assertion
of jurisdiction.
Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed in Case
29-RM-321, by The Windsor School , Inc., be, and it
hereby is , dismissed.
6 While the Employer's expected operations may involve increased reve-
nues sufficient to warrant an assertion of jurisdiction in the future, we find
on the record before us that they are too speculative and insubstantial to
support a finding that it would effectuate the policies of the Act to assert
jurisdiction on the basis thereof . Southland Cotton Oil Company, 110 NLRB
433; Aroostock Federation of Farmers, Inc, 114 NLRB 538, in which the
Board held that jurisdiction is determined without regard to speculative
changes in an employer 's business or employer's predictions as to its future
operations