Jefferson County Community Center for Developmental Disabilities, Inc. v. N.L.R.B.

• Decision Date: 16 April 1984
• Docket Number: 82-2052,Nos. 81-2338,s. 81-2338
• Citation: 732 F.2d 122
• Parties: 116 L.R.R.M. (BNA) 2063, 100 Lab.Cas. P 10,991 JEFFERSON COUNTY COMMUNITY CENTER FOR DEVELOPMENTAL DISABILITIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 122

732 F.2d 122

116 L.R.R.M. (BNA) 2063, 100 Lab.Cas. P 10,991

JEFFERSON COUNTY COMMUNITY CENTER FOR DEVELOPMENTAL DISABILITIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 81-2338, 82-2052.

United States Court of Appeals Tenth Circuit.

April 16, 1984.

Lawrence W. Marquess of Bradley, Campbell & Carney, Golden, Colo., for petitioner.

Helen Morgan, Atty., N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen., Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., with her on brief), for respondent.

Before McWILLIAMS, LOGAN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

The Jefferson County Community Center for Developmental Disabilities, Inc. (the Center) petitions this court to review and set aside two orders of the National Labor Relations Board (NLRB or the Board) requiring the Center to bargain with and supply information to the Community Center Professional Employees Association (the Association). The Board has cross-applied for enforcement of both orders. On appeal, the Center raises a number of challenges to the Board's jurisdiction and attacks the conduct of the representation election. Principally, the Center contends that it is a political subdivision of the state of Colorado and therefore is exempt from NLRB jurisdiction under section 2(2) of the National Labor Relations Act, 29 U.S.C. Sec. 152(2) (1982) (the Act). We find the Center's arguments unpersuasive and accordingly grant enforcement of the Board's orders.

I.

The Center is a nonprofit Colorado corporation established in 1964 to provide a variety of educational and vocational services for mentally retarded and seriously handicapped individuals. As an alternative to institutionalization, it offers these services pursuant to a "community-centered program" enacted by the Colorado General Assembly to assist the handicapped and retarded. See Colo.Rev.Stat. Secs. 27-11-101 to -106 (1973). The Center operates two schools, three sheltered workshops, and nine residential facilities in a four-county area in Colorado.

In February 1980, the Association filed a petition with the NLRB, seeking certification as the collective bargaining representative of a unit of professional and technical employees at the Center. Following three days of hearings, the NLRB Regional Director rejected the Center's contention that it was exempt from the Board's jurisdiction and directed a representation election. He found that the Center was not a political subdivision within the meaning of section 2(2) of the Act, and that it retained sufficient control over its labor relations to bargain effectively. Because certain categories of employees included in the bargaining unit were professionals, the Regional Director established two voting groups--one of professional employees and one of nonprofessionals. He directed the professionals to vote first on whether they wished to be included in a single bargaining unit with the nonprofessionals. See 29 U.S.C. Sec. 159(b)(1) (1982). Both groups were then to vote on the representation question.

The election was held in August 1980 with the professional employees voting 37 to 12 in favor of inclusion with the nonprofessionals. This combined unit voted by a slim margin to be represented by the Association, but the Center challenged a number of ballots and objected to the conduct of the election. The Board sustained several of the Center's challenges and objections and directed a second election. The new election was held in May 1981. This time the professional employees voted not to be included in a single unit with the nonprofessionals. The professionals then voted 53 to 19 in favor of representation by the Association. The nonprofessional unit voted against representation by a margin of 55 to 17. The Center again objected to the election, arguing that the inclusion question had already been decided and should not have been redetermined in the second election. The Acting Regional Director overruled the Center's objection and certified the Association as the professional employees' collective bargaining representative. The Center's subsequent request for review by the Board was denied.

In June 1981, acting upon a charge brought by the Association, the Regional Director issued a complaint alleging that the Center had violated sections 8(a)(5) and (1) of the Act by refusing to bargain with the Association. The Center's answer admitted its refusal to bargain and raised as a defense its objection to the Board's jurisdiction. The Board granted the General Counsel's motion for summary judgment and ordered the Center to bargain with the Association. This appeal followed. ¹

II.

Section 2(2) of the Act provides that "[t]he term 'employer' ... shall not include ... any State or political subdivision thereof ...." 29 U.S.C. Sec. 152(2). Although the term "political subdivision" is not defined in the Act or its legislative history, the Board has long limited the exemption to entities "that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate." NLRB v. Natural Gas Utility District, 402 U.S. 600, 604-05, 91 S.Ct. 1746, 1749-1750, 29 L.Ed.2d 206 (1971); Board of Trustees of Memorial Hospital v. NLRB, 624 F.2d 177, 184 (10th Cir.1980). In the instant case, the Board accepted the Regional Director's finding that the Center did not qualify as a political subdivision under either alternative of this test. We agree.

The Board has initial responsibility for determining who is an employer for purposes of the Act, NLRB v. E.C. Atkins & Co., 331 U.S. 398, 403, 67 S.Ct. 1265, 1268, 91 L.Ed. 1563 (1947); Museum Associates v. NLRB, 688 F.2d 1278, 1280 (9th Cir.1982); NLRB v. Pope Maintenance Corp., 573 F.2d 898, 902 (5th Cir.1978), and its construction of its own statutory jurisdiction is entitled to great respect, Natural Gas Utility District, 402 U.S. at 605, 91 S.Ct. at 1749; NLRB v. Austin Developmental Center, Inc., 606 F.2d 785, 789 (7th Cir.1979). We must accept the Board's determination "if it has a reasonable basis in the evidence and is not inconsistent with the law." Atkins, 331 U.S. at 403, 67 S.Ct. at 1268; Museum Associates, 688 F.2d at 1280.

Turning to the first part of the test, it is evident that the Center was not created directly by the state of Colorado as a department or administrative arm of government. The record shows that the Center was organized by a group of individuals as a nonprofit corporation under applicable Colorado laws. No special legislative act brought it into existence. Compare Natural Gas Utility District, 402 U.S. at 605-06, 91 S.Ct. at 1749-50 (utility district organized under special law requiring finding of public necessity for creation of district); Crilly v. Southeastern Pennsylvania Transportation Authority, 529 F.2d 1355, 1358 (3d Cir.1976) (transportation authority created by act of legislature as agency and instrumentality of commonwealth), with Truman Medical Center, Inc. v. NLRB 641 F.2d 570, 572 (8th Cir.1981) (medical center organized under Missouri not-for-profit corporation law); NLRB v. Highview, Inc., 590 F.2d 174, 176 (5th Cir.) (nursing home incorporated by private individuals as nonprofit corporation under Georgia law), modified on other grounds, 595 F.2d 339 (1979); NLRB v. Natchez Trace Electric Power Association, 476 F.2d 1042, 1044-45 (5th Cir.1973) (electric power association organized by private citizens as nonprofit corporation under Mississippi law).

The record contains no indication that the Center is or was intended to be a department or administrative arm of the state government. It is instead one of some twenty-two community center corporations with which the state department of institutions and other governmental units contract for the purchase of services for the mentally retarded and seriously handicapped. Although the Center may function as an integrated part of a legislative scheme to provide such services, see Colo.Rev.Stat. Secs. 27-11-101 to -106 (1973), ² it does so not as a state-created department or administrative arm of government, but essentially as a private contractor. Cf. Truman Medical Center, 641 F.2d at 572 (medical center assumed responsibility of city and county for medical care of indigents pursuant to series of contracts, not statutory duty).

The Center fares no better under the second branch of the Board's test, as the record contains no evidence that it is "administered by individuals who are responsible to public officials or to the general electorate." Natural Gas Utility District, 402 U.S. at 604-05, 91 S.Ct. at 1749. Management of the Center is vested in a fifteen-member Board of Directors. The corporation's by-laws require that eight members be appointed annually by certain designated organizations, seven of which are public agencies. ³ The remaining members are elected by the membership of the corporation. ⁴ 4] Appointed directors may be removed at any time by a majority vote of the Board; elected directors may be removed by a majority of the corporation membership.

The record thus demonstrates that although seven directors are appointed by public agencies under the Center's by-laws, a majority of the Board is neither appointed by nor subject to removal by public officials or the general electroate and has no official connection to any governmental body. Under these circumstances, the Center is not administered by individuals who are accountable to public officials or the general electorate. Cf. Truman Medical Center, Inc., 641 F.2d at 573 (medical center held not political subdivision where 31 of 49 directors neither appointed by nor subject to removal by public officials or general public).

The Center also lacks a number of other...