N.L.R.B. v. Lighthouse for Blind of Houston

• Decision Date: 31 January 1983
• Docket Number: No. 80-1753,80-1753
• Citation: 696 F.2d 399
• Parties: 112 L.R.R.M. (BNA) 2677, 68 A.L.R.Fed. 893, 96 Lab.Cas. P 14,013 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIGHTHOUSE FOR THE BLIND OF HOUSTON, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 399

696 F.2d 399

112 L.R.R.M. (BNA) 2677, 68 A.L.R.Fed. 893,

96 Lab.Cas. P 14,013

NATIONAL LABOR RELATIONS BOARD, Petitioner, v.LIGHTHOUSE FOR THE BLIND OF HOUSTON, Respondent.

No. 80-1753.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1983.

Elliott Moore, DeputyAssoc. Gen. Counsel, Sandra Williams, David Fleischer, N.L.R.B., Washington, D.C., for petitioner.

Donald S. Shire, Associate Sol., Barbara E. Kahl, U.S. Dept. of Labor, Washington, D.C., amicus curiae, Secretary of Labor.

Eric H. Nelson, Houston, Tex., for intervenorTeamsters LocalNo. 968.

Liddell, Sapp, Zivley, Brown & Laboon, W. Robert Brown, Douglas R. Little, Houston, Tex., for respondent.

Bert N. Bisgyer, Washington, D.C., amicus curiae for Nat. Federation of the Blind.

Application for Enforcement of An Order of the National Labor Relations Board.

Before GARZA, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

In this case, before us now on rehearing, the National Labor Relations Board seeks enforcement of its order of April 24, 1980, 248 N.L.R.B. 1366(1980), that the Lighthouse for the Blind of Houston ("Lighthouse") recognize and bargain with the General Drivers, Warehousemen and Helpers Local Union 968, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union"), which had been certified as the exclusive bargaining representative of a production and maintenance unit of employees in the Lighthouse's Workshop A. The Board found that the Lighthouse had violated Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA),29 U.S.C. Sec. 158(a)(1), (5), by refusing to recognize the Union and by refusing to furnish the Union relevant wage and employment information concerning such employees.In an opinion of August 10, 1981, 653 F.2d 206(5th Cir.1981), another panel of this Court denied enforcement of the Board's order, finding that the Board improperly asserted jurisdiction over the Lighthouse "employees" of Workshop A because those workers were "clients" whose relationship with the Lighthouse was rehabilitative rather than typically industrial.This opinion was subsequently vacated, 679 F.2d 379(5th Cir.1982), and the case reargued.On rehearing, we find that the Board's determination that the commercial and business nature of the workers' employment predominated over any rehabilitative goals was supported by substantial evidence in the record as a whole.It follows that the Board correctly concluded that these workers were entitled to organize and bargain collectively within the meaning of the Act, 29 U.S.C. Sec. 152(3).We grant enforcement of the Board's order.

I.

The Lighthouse is a nonprofit, charitable corporation ¹ which provides services to and carries on programs for individuals with visual impairments.Part of its activities include operating the workshop involved in this case.The Lighthouse's activities are divided into five departments: social services, ² volunteer services, ³ library and special services, ⁴ rehabilitation ⁵ and industrial.The first four departments provide services which are available to all blind persons in the Houston community.⁶These departments receive state, federal and private funding to support their operations.⁷They are also supported, in part, by the profits generated by the fifth department, the Industrial Division.⁸

The Industrial Division consists of two diverse "workshops": Workshop A, whose employees are the subject of the immediate dispute, and Workshop B. ⁹ Workshop B includes approximately 30 individuals who are severely handicapped in addition to being blind and who are not engaged in substantial production work for sale.These individuals, who are unable to be fully productive, are paid at least fifty percent of the statutory minimum wage and fall under the sheltered workshop certificate which the Lighthouse has received from the Department of Labor.¹⁰Some individuals in Workshop B, after training and rehabilitation, "graduate" to Workshop A.

Workshop A employs approximately 70 individuals, 90 percent of whom are legally blind and, in some cases, are also afflicted with other handicaps.Sighted workers, who may or may not be otherwise handicapped, perform maintenance work on the machines and equipment used in Workshop A. Workshop A, which is housed in a separate building at the Lighthouse, performs a variety of manufacturing functions including the production of felt-tipped pens, mops, and brushes, the bottling of disinfectants and detergents, ¹¹ and the performance of subcontract work for private employers.¹²The Industrial Division is also involved in the distribution, for retail sale, of various non-manufactured products purchased in bulk from other workshops both inside and outside Texas.¹³

Workshop A employees are all paid at least the federal minimum wage for their work.Variations above the minimum wage reflect differing levels of productivity.¹⁴All Workshop A employees, however, are required to meet a productivity standard, measured by the norm of sighted individuals performing comparable duties in competitive private industry.Employees who cannot meet these standards may be transferred to Workshop B.If productivity levels above these standards are maintained, individuals may receive merit increases above their hourly rate; if these increased levels are not sustained, the raises may be withdrawn.

Workshop A employees are covered by worker's compensation, unemployment insurance, and hospitalization insurance, and receive pension rights and nine paid holidays per year.They also receive other benefits which vary according to tenure, including vacation and sick leave.

The employees work under production deadlines, and are compensated at time-and-one-half for overtime work.Employees are disciplined for, among other things, low production, improper job performance, excessive tardiness or absenteeism, and insubordination.Progressive discipline is employed, and terminations have been an infrequent result.¹⁵The disciplinary procedure moves from counseling to managerial discussion.¹⁶Failing these successive measures, a workers' committee ¹⁷ considers the matter and can authorize disciplinary measures be taken, including suspension and termination.¹⁸The supervisors in Workshop A are, generally, former workers who have frontline responsibility to ensure that production needs are met, including responsibility to check time cards, to dock workers who are late, and to approve requests to leave work early or to not come in on a particular day.¹⁹

The Lighthouse has no formal program for placement of Workshop A employees, although some individuals are placed in private industry on an ad hoc basis.Over the years, approximately three to four individuals have been placed annually; approximately half of these workers subsequently return to work at the Lighthouse.A large proportion of the employee complement of Workshop A has worked at the Lighthouse for at least ten years and some for as many as twenty years.²⁰

II.

At issue is the propriety of the Board's application of the National Labor Relations Act to Workshop A "employees."²¹The NLRA, apart from providing explicit exclusions, none of which are herein applicable, offers little definition as to who are "employees" covered by the Act.²²The Board, in considering the basic policies behind the Act, has wide discretion in adding flesh to the bare-bones definition of "employee" while determining the status of individuals whose statutory coverage is at issue.NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170(1944).As a result, it is well established that our function on review is quite limited:

[I]n reviewing the Board's ultimate conclusions, it is not the court's function to substitute its own inferences of fact for the Board's...[T]he Board's determination that specified persons are "employees" under the Act is to be accepted if it has "warrant in the record" and a reasonable basis in law.

Id. at 130-31, 64 S.Ct. at 860-61.SeeBayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 304, 97 S.Ct. 576, 581, 50 L.Ed.2d 494(1977).Accord, Cincinnati Association for the Blind v. NLRB, 672 F.2d 567, 572(6th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 78, 74 L.Ed.2d ----(1982);Physicians National House Staff Association v. Fanning, 642 F.2d 492(D.C.Cir.1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342(1981).With this circumscribed standard of review, we turn to examine the Board's determination that Lighthouse A workers fall within the Act's purview as "employees."

Our review of the recent Board decisions reveals that the Board's exertion of jurisdiction over workshops has hinged upon an ad hoc determination of whether the essential nature of the workshop is "rehabilitative" or "typically industrial."CompareGoodwill Industries of Southern California, 231 N.L.R.B. 536(1977)(jurisdiction declined), with Chicago Lighthouse for the Blind, 225 N.L.R.B. 249(1976)(jurisdiction asserted) and Cincinnati Association for the Blind, 235 N.L.R.B. 1448(1978)(jurisdiction asserted).It exempts those which serve a primarily rehabilitative or therapeutic function and asserts jurisdiction over those wherein business or economic characteristics predominate.In the immediate case, the Board concluded that Workshop A exhibited business and commercial over therapeutic traits.

The Lighthouse contends that in reaching this conclusion, the Board erred.It points to various aspects of Lighthouse "employment" in support of its position that Workshop A's focus is upon rehabilitation, that the Workshop is not engaged in a typically industrial endeavor, and, consequently, that NLRA collective bargaining rights are incompatible with rehabilitation.In particular, the Lighthouse stresses: 1) the rehabilitation, counseling and other services offered the blind at its facilities; 2) the hiring...