N.L.R.B. v. Living and Learning Centers, Inc., 80-1706

• Citation: 652 F.2d 209
• Decision Date: 23 June 1981
• Docket Number: No. 80-1706,80-1706
• Parties: 107 L.R.R.M. (BNA) 3104, 91 Lab.Cas. P 12,840 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIVING AND LEARNING CENTERS, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 209

652 F.2d 209

107 L.R.R.M. (BNA) 3104, 91 Lab.Cas. P 12,840

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIVING AND LEARNING CENTERS, INC., Respondent.

No. 80-1706.

United States Court of Appeals First Circuit.

Argued May 5, 1981.

Decided June 23, 1981.

Ruth Ihne, with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Robert Sewell, Washington, D. C., were on brief, for petitioner.

George H. Foley, Boston, Mass., with whom Hale & Dorr, Boston, Mass., was on brief, for respondent.

Before BOWNES and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. ^*

WYZANSKI, Senior District Judge.

The National Labor Relations Board (NLRB) petitions for enforcement of its order directing Living and Learning Centers, Inc. (the Employer) to bargain with and supply information to Local 925 Service Employees International Union, AFL-CIO-CLC (the Union). § 8(a)(5) and (1) of the National Labor Relations Act (the Act); 29 U.S.C. § 158(a)(5) and (1). The Employer opposes the petition principally because it challenges the NLRB's determination that the Employer's teachers, teacher assistants, cooks and maintenance employees at the Waltham, Massachusetts child's day care center (Waltham Center) constituted an appropriate unit under § 9(b) of the Act, 29 U.S.C. § 159(b).

On June 6, 1979 the Union filed a petition asking that the NLRB, pursuant to § 9(b) of the Act, certify it as the representative of the Company's Waltham center teachers, teacher assistants, cooks and maintenance employees. After a hearing before an officer appointed by him, the NLRB's Regional Director made the following findings.

The Employer is a Massachusetts corporation engaged in the operation of day care centers in Massachusetts, Rhode Island, Connecticut and New Hampshire .....

The Petitioner seeks a unit limited to teachers, teacher assistants, cooks and maintenance employees employed at the Employer's Waltham, Massachusetts day care center. This unit consists of approximately 19 employees. There is no history of collective bargaining in this unit.

The Employer concedes the appropriateness of the job classifications sought by the Petitioner, but contends that the only appropriate unit is one including all 29 of its day care centers in Massachusetts, or, alternatively, all of its day care centers in Massachusetts, Rhode Island (one center), Connecticut (seven centers), and New Hampshire (one center).

The Employers' executive headquarters are located in Waltham, Massachusetts and occupy a separate floor in the building which houses the day care center, which is the subject of the instant petition.

Each day care center has a director, an assistant director, a cook and a maintenance man. The number of teachers and teacher assistants varies with the size of the enrollment at the individual day care center. There are approximately 2,500 children enrolled in the Employer's day care centers in Massachusetts and approximately 400 teachers and teacher assistants.

The children enrolled at the Employer's day care centers range from 6 months to 6 years in age. As well as being custodial, all of the Employer's day care centers have an educational curriculum. "I am! I can!," a 340 page folio-sized handbook sets forth the Employer's philosophy of child care and details methods and techniques of instruction. Once every four to six weeks all the directors of the Massachusetts centers meet with the executive officers at the Waltham, Massachusetts headquarters. At this meeting the executive officers indicate the methods of presentation of the monthly "themes," which are general concepts such as "round and red" and "person" and which are the same for all centers, in terms of the "I am! I can!" viewpoint and techniques. The directors are then responsible, without effective supervision from the Waltham, Massachusetts headquarters, to see that these "themes" are developed by the teachers and teacher assistants in consonance with the "framework" provided by the executive officers at the above meetings. While the record does not reveal with specificity the nature of the instructions which the directors receive at these meetings, they would appear to be general in nature from the fact that it is the teaching staff which initially prepares the weekly plan of instruction and activity for the current theme, subject to subsequent director approval, and it is expected that different centers may present a theme in an entirely different way. While two copies of the "I am! I can!" handbook are available at each center, the teachers and teacher assistants are not required to read it.

Each center director has authority to hire and discharge the teachers, teacher assistants, cooks and maintenance employees; to schedule their hours and to approve their sick days, personal days and leaves of absences. However, in practice the directors first consult with the Waltham, Massachusetts headquarters in the great majority of discharge cases. The director is also empowered to resolve disputes among center employees, although he may, but is not required to, ask the area supervisor to intervene if the dispute involves the teaching staff and the director or assistant director. While each director reports to one of four area supervisors at the Waltham, Massachusetts headquarters, the presence of these are (sic) supervisors at the center locations and their contact with the employees in the unit job classifications is minimal.

The Employer holds "workshops" which teachers and teacher assistants from all the centers may attend at their own discretion. The record does not disclose the frequency of such workshops, nor the degree of participation in them by teachers and teacher assistants.

Of teachers presently employed at the Waltham, Massachusetts center, none has been transferred from other day care centers. Three teachers presently employed at other centers have been transferred from the Waltham, Massachusetts center. The total of presently employed transferred teachers from all centers in Massachusetts is 25.

The Employer has a centrally established single wage and benefit policy for all its Massachusetts centers. Wages range from the legal minimum to $3.25 per hour. The only benefit is three days of sick leave per year. No wage increase for any employee may be granted to any employee without approval from the Employer's headquarters. However, the directors are authorized to recommend wage increases for individual employees working under their direction.

Under a single contract, the Massachusetts Department of Public Welfare pays, on a uniform basis, some percentage (undisclosed on the record) of approximately one-third of the children enrolled in the Massachusetts center. Pursuant to the licensing of day care centers, the Massachusetts Office for Children sets minimum standards as to teacher qualifications, the teacher/student ratio, and health requirements.

Payroll information is assembled at the individual centers and forwarded to the Waltham, Massachusetts headquarters, from which the employees' paychecks are then sent out.

All major purchases and financial transactions are decided at the Waltham, Massachusetts headquarters.

The Board has held that a single-plant, or single-store, unit is presumptively appropriate absent ... "a functional integration so severe as to negate the identity of a single-plant, or a single-store unit." Gray Drug Stores, Inc., 197 NLRB 924, 925 (1972). Based upon the above, it is found that the degree of the Employer's control of personnel policies and the extent of integration of the operations of the Massachusetts centers is insufficient to overcome this presumption in the present case. This conclusion is based on the infrequent inter-change and communication among the employees of the various centers and the separate immediate supervision by the director, who hires and may fire the center employees and is alone responsible on a day-to-day basis for the direction of their work and the resolution of their disputes. Accordingly, a unit limited to the Waltham, Massachusetts location is found to be appropriate. Haag Drug Company, Incorporated, 169 NLRB 877, 879 (1968); Purity Food Stores, Inc. (Sav-More Food Stores), 150 NLRB 1523, 1527 (1965).

Upon the basis of his findings, the Regional Director ordered an election. The Board denied the Employer's request for review. The union won the election and the NLRB certified it as the representative of the teachers, teacher assistants, cooks and maintenance employees at the Waltham Center.

On February 26, 1980 the Union asked the Employer for specified information for the purpose of preparing contract proposals. The Employer refused on the ground that the unit certified by the NLRB was not an appropriate one. On April 7, 1980 the Union filed an unfair labor practice charge alleging that the Employer had violated § 8(a)(5) and (1) of the Act by refusing to bargain with the Union and by refusing to furnish relevant information. The Employer's answer, in addition to challenging the unit determination, denied that its activities so affected interstate commerce as to subject it to the Act, and alleged that it was without knowledge that the Union was a labor organization within the meaning of the Act.

In response to a motion of the NLRB's General Counsel, the NLRB entered a summary judgment and found that the Employer had violated § 8(a)(5) and (1) of the Act. Thereafter, the NLRB filed this petition. We rule against the Employer on all the issues raised in the Employer's answers referred to in the previous paragraph.

1. The NLRB's jurisdiction to determine an appropriate unit for collective bargaining see 29 U.S.C. § 159(c) and its jurisdiction to prevent any person from engaging in an unfair labor practice see 29 U.S.C. § 160(a) alike depend on whether the matter is...