Braille Monitor December 1986
On October 10, 1986, a Regional Director of the National Labor Relations Board (NLRB) ordered the opening and counting of the ballots in a union representation case involving blind and sighted production workers at the Raleigh Lions Clinic for the Blind, Inc., in North Carolina. Three years ago the ballots in question had been placed in a safe at the NLRB regional offices, where they had remained pending the outcome of an appeal.
It all started in 1983 when a "Decision and Direction of Election" was issued by the same Regional Director of the NLRB, finding that the Raleigh Lions Clinic is an "employer" as defined in the National Labor Relations Act, and that the blind people who work in the sheltered workshop of the Clinic are "employees" under the Act. Therefore, the Regional Director decided that the employees were entitled to vote on having a union to represent them. The ballots were actually cast, but the results are still an official secret because the Clinic filed an appeal to have the Regional Director's Decision reviewed by the full five-member National Labor Relations Board in Washington. The appeal would cause a delay if not a reversal, a typical employer strategy in such cases.
In like manner, the October 10, 1986, Decision has also been appealed by the employer. The Regional Director's Decision came in response to a specific directive from the Board ordering a further regional review. The Board wanted the Regional Director to reconsider his 1983 Decision in light of two NLRB Decisions issued on June 27, 1986. Both cases (discussed in this article) provide precedents for deciding on appeals such as Raleigh.
All of this legal mumbo-jumbo and the passing of decisions back and forth from Raleigh to Washington and back to Raleigh comes down to the fact that the Raleigh case is now very much alive and well. The Board's recent decisions in the two similar (but at first glance apparently unrelated) cases seem to have broken the log jam. The decisions involve nonprofit groups with close ties to governmental agencies that are exempt from the National Labor Relations Act.
This is actually right on point with Raleigh. In the Raleigh case the Lions Clinic management has been arguing that the agency is fully under the control of the State of North Carolina. This is a new twist by which a workshop tries to secure an exemption from collective bargaining. Apparently the theory is that if the workshop (private and nongovernment) claims that it is controlled by a governmental entity (such as a state agency for the blind, which is legally exempt), the workshop (which is not legally exempt) can ride along on the state agency's coattails. At least that is what the Raleigh shop managers are obviously hoping. The control, they allege, comes from an agreement between the Raleigh Lions Clinic and the state Division of Services for the Blind, providing that vocational rehabilitation clients of the state agency can receive rehabilitation and work adjustment training at the Raleigh Lions Clinic. The state pays the clinic for these services.
But the arrangement is much like a regular business deal between two firms, one of which purchases goods or services from the other or subcontracts work to it. That does not mean that one company is necessarily controlled by the other. They are simply making a normal business arrangement.
And so it is with the Raleigh Lions Clinic and the state of North Carolina. The managers at the Raleigh Lions Clinic, not the officials of North Carolina government, decide who will be hired in the workshop and, for that matter, who will be fired. The managers at the Clinic (not the state) determine what wages will be paid to blind and sighted production employees. The managers (not the state) decide about vacation time, sick leave policy, insurance plans, employee discipline procedures, appeal rights, and all other personnel policies. If the plant is to have a layoff, workshop management (not the state) decides who will go and who will stay. Product lines, marketing strategies, and all other aspects of the plant's production and sales operation are determined by the managers of the Clinic, not by the state.
These are the factors which the regional director took into account in deciding the original case. These will doubtless also be the factors which the full National Labor Relations Board will be taking into account when they decide on the merits of the workshop's appeal from the October 10, 1986, decision by the regional director. At a hearing on September 16, 1986, the chief of rehabilitation for the North Carolina Division of Services for the Blind testified under oath before an NLRB hearing officer in Raleigh that the Raleigh Lions Clinic (not the state of North Carolina) controls all of the hiring, compensation, and personnel practices which might be the subject of collective bargaining at the Clinic. Even on the matter of an employee grievance procedure (which the state agency had found deficient in two respects) the rehabilitation chief testified that his division was powerless to order specific changes of policy and compel the Clinic's acceptance of them. In theory the state could cease buying any services from the Raleigh Lions Clinic, but even that would not necessarily control the Clinic's policies. It would only mean that the state would no longer have a business relationship with the Clinic.
In the two NLRB cases that are now being compared to Raleigh the nonprofit agencies involved were operating under much greater controls by exempt governmental entities. Even so, the NLRB took jurisdiction in one case and declined to do so in the other. The case in which jursidiction was declined involved a federally sponsored Job Corps center operating under contract with the United States Department of Labor. In this case the Department of Labor maintained budget control over the contracting agency and reserved the right to approve or disapprove the agency's hiring decisions and policies. Virtually all of the decisions which could be made by the Job Corps Center were subject to Department of Labor veto. That would also be true of a collective bargaining agreement. Under the circumstances the NLRB declined to apply the National Labor Relations Act to the Job Corps Center because of the federal government's overriding control.
But following a similar analysis of the elements of control, the NLRB decided to assert jurisdiction over a privately operated home for wayward youth despite the fact that the home was licensed and supervised to some degree by the state of Maryland. The distinction was that the home (not the state) determined budget and spending practices. Salaries and fringe benefits were not subject to state approval. The home (not the state) had full discretion in hiring and dismissal decisions. The state 's involvement was to license and inspect the home and to pay costs associated with housing and caring for the residents. Even though the sole purpose for the home was to provide residential care and supervision of wayward youth on behalf of the state of Maryland, the NLRB took jurisdiction over a group of the home's employees because the control exercised by the state was insufficient to make collective bargaining meaningless.
The control of the state of North Carolina over the Raleigh Lions Clinic is even less than in the case of the Maryland youth home. This is why there is every reason for us to feel that after all appeals are heard, the final outcome in the Raleigh Case will be positive. But a long struggle lies ahead. The Raleigh Lions Clinic has again appealed and will doubtless drag the matter out as long as it can. More time will be exhausted in delays as the workshop managers continue to hope that we will give up and go away. But the resolve of the blind of North Carolina and the nation to remain firm and united on behalf of the workers in Raleigh will strengthen (not diminish) as the months goby.
This is a battle which the National Federation of the Blind has been fighting for a long time. In 1983 when the blind workers at the Raleigh Lions Clinic found conditions unbearable, we came to their assistance and pledged our commitment. The initial decision by the regional director of NLRB was favorable to us, but the workshop management appealed. Now, we have had a second favorable decision--and once again management has appealed. But time is running out for them. The vice will close. The pressure will be in inexorable. The blind of Raleigh will have justice, and it will be made possible because of the determination of the National Federation of the Blind. We want no strife or confrontation, but we will do what we have to do. We are simply no longer willing to be second class citizens.