Petition — Cincinnati Ass'n for the Blind v. National Labor Relations Board
Supreme Court brief1982
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In the
SUPREME COURT OF THE UNITED STATES
October Term, 1981
CINCINNATI ASSOCIATION FOR THE BLIND,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEPHEN S. EBERLY
2100 Fountain Square
Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
Of Counsel:
Dinsmore & SHOHL
2100 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
QUESTIONS PRESENTED
. Whether the blind, visually disabled, and otherwise dis-
abled “clients” who work in a “sheltered workshop” cer-
tified by the Department of Labor pursuant to Section
14(c) of the Fair Labor Standards Act are “employees”
within the meaning of Section 2(3) of the National Labor
Relations Act?
. If so, whether the National Labor Relations Board
abused its discretion and failed to effectuate the pur-
poses of the National Labor Relations Act when it as-
serted jurisdiction over sheltered workshop clients, even
though to do so would limit the ability of the sheltered
workshop to provide services to its clients?
. Whether the National Labor Relations Board abused its
discretion by asserting jurisdiction over the clients at
some certified sheltered workshops, while declining to
assert jurisdiction over similarly situated clients at
other certified sheltered workshops, even though the
operative facts are legally indistinguishable?
. Whether the National Labor Relations Board abused its
discretion by combining in a single bargaining unit
both (a) blind, visually disabled, and otherwise disabled
workshop clients and (b) non-disabled regular employees
of the sheltered workshop?
PARTIES
The following were parties amicus curiae before the Sixth
Circuit:
National Industries for the Blind
National Accreditation Counsel for Agencies Serving
the Blind and Visually Handicapped
United States Department of Labor
National Federation of the Blind
The Cincinnati Association for the Blind and the Na-
tional Labor Relations Board are parties identified in the
caption. Local 100 of the Truck Drivers, Chauffeurs and
Helpers Union did not appear as a party in the Sixth Cir-
cuit, except to resist the Motion of the Cincinnati Associa-
tion for the Blind seeking a Stay of the Mandate of the
Sixth Circuit pending this Petition for Certiorari.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..................00e08- i
ES ˙ . ee ii
eee ee eee eee eee iii
TABLE OF AUTHORITIES CITED ................ iii
e eu secnce suse 1
r .... K 2
STATUTES AND REGULATIONS INVOLVED ..... 2
STATEMENT OF THE CASE ..................5:- 2
A. The Proceedings Belo⸗- z . 3
e eee 5
1. The Nature of the Cincinnati Association for
D ̃ ˙ A 5
2. The Association’s Sheltered Workshop. ..... 7
REASONS FOR ALLOWING WRIT l 11
A. Conflict Between the Fifth and Sixth Circuits.. 12
B. Conflict Between Decisions of the NLRB ...... 13
C. Conflict between Assertion by NLRB of Juris-
diction Over Sheltered Workshops and Con-
. 17
D. Conflict Between Assertion by NLRB of Juris-
diction Over Sheltered Workshops And The Abil-
ity of Sheltered Workshops To Provide Their
Therapeutic and Rehabilitation Services 20
r d . 23
TABLE OF AUTHORITIES CITED
CASES:
Cincinnati Association for the Blind, 235 NLRB 1448
r 1. 3, 4, 5, 13, 14, 15, 16, 17
Cincinnati Association for the Blind, 244 NLRB 1140
. eee 1,4
Page
Cincinnati Association for the Blind v. NLRB, 672 F.2d
een es 1. 4, 5, 13, 17
Goodwill Industries of Southern California, 231 NLRB
a rT 4, 5, 13, 14, 16, 17, 20, 21, 22
Lighthouse for the Blind of Houston, 244 NLRB 1144
177 ¹— ene 5, 13
NLRB v. Lighthouse for the Blind of Houston, 653 F. 2d
EE SED eee 5, 12, 13, 17
STATUTES AND REGULATIONS:
Section 14(c) of the Fair Labor Standards Act, 29
D W 2, 3, 16, 18
Section 203) of the National Labor Relations Act, 29
, . e 2
Section 8(a)(1) of the National Labor Relations Act,
r ee 2,4
Section 8(a)(5) of the National Labor Relations Act, 29
r ceding euUhe saceeunéns 2,4
The Wagner-O Day Act, 41 U.S.C. §§ 46-48c ..... 2, 10, 19
Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq .. 19
Sections 706(11), 721(a)(16), and 721(a)(17) ....... 2,19
r ˙5wſXXIII...... eb0bK es 20
Social Security Act, 42 U.S.C. §416(i)(1) ............ 2,18
Regulations of Wage and Hour Division, United States
Department of Labor, 29 C.F.R. Chapt. V, Part
ccc 2, 3
r ·˙⁰˙ͤ 2
rer onts oul eae nen 2,4
Sections 525.7(a)(2) and(a ()))) 2,16
e redes 2, 19
Sections 525. (a), (f), and (gg). 2, 16
SECONDARY SOURCES:
The Role of the Sheltered Workshops in the Rehabilita-
tion of the Severely Handicapped, Greenleigh As-
TED eee e 20
No.
In the
SUPREME COURT OF THE UNITED STATES
October Term, 1981
CINCINNATI ASSOCIATION FOR THE BLIND,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Petitioner, the Cincinnati Association for the Blind,
seeks a Writ of Certiorari to review the judgment of the
United States Court of Appeals for the Sixth Circuit, en-
tered on March 17, 1982.
PRIOR OPINIONS
The opinion of the United States Court of Appeals for the
Sixth Circuit is reported at 672 F.2d 567 (6th Cir. 1982),
and appears in Appendix A, infra, at pp. la-12a. The deci-
sions and orders of the National Labor Relations Board in
this case are reported at 235 NLRB 1448 (1978) and 244
NLRB 1140 (1979), and appear, respectively, in Appendices
B and C, infra, at pp. 1b-6b and 1c-12c.
1
2
JURISDICTION
The judgment of the United States Court of Appeals for
the Sixth Circuit was entered on March 17, 1982, and ap-
pears in Appendix A, infra, at pp. la-12a. This Petition is
filed within ninety days of that date. The jurisdiction of this
Court is invoked under 28 U.S.C. Section 1254(1). Jurisdic-
tion in the court of appeals was invoked under Section 10(f)
of the National Labor Relations Act, as amended, 29 U.S.C.
Section 160 (f).
STATUTES AND REGULATIONS INVOLVED
The text of the provisions of the relevant statutory pro-
visions and regulations are set forth in Appendix D, infra,
at pp. 1d-8d, and are as follows:
Section 2(3) of the National Labor Relations Act, 29
U.S.C. Section 152(3).
Section 8(a)(1) of the National Labor Relations Act, 29
U.S.C. Section 158(a)(1).
Section 8(a)(5) of the National Labor Relations Act, 29
U.S.C. Section 158(a)(5).
Section 14(c) of the Fair Labor Standards Act, 29
U.S.C. Section 214(c).
The Wagner-O Day Act, 41 U.S.C. Section 48.
Rehabilitation Act of 1973, 29 U.S.C. Sections 706(11),
721(a)\(16), and 721(a)(17).
The Social Security Act, 42 U.S.C. Section 416(i)(1).
Regulations of an and Hour Division, United States
t of Labor, 29 C.F.R. Chapter V, Part
525, Sections 525.2(b) and (d), Sections 525.7(a)
(2) and (a), and Sections 525.%a), (f), and (g).
STATEMENT OF THE CASE
The fundamental question raised by this controversy is
whether it is appropriate for the National Labor Relations
3
Board to assert jurisdiction over the “clients” who work ina
sheltered workshop under a Sheltered Workshop Certifi-
cate issued by the Inited States Department of Labor. The
outcome of this litigation will have far-reaching effects on
the more than 2,500 sheltered workshops throughout the
country, and their ability to continue to provide sheltered
workshops as a service to more than 115,000 disabled work-
shop clients.
A. The Proceedings Below
The Cincinnati Association for the Blind (hereinafter re-
ferred to as the “Association” or the “CAB”) seeks a Writ of
Certiorari to obtain review of a decision of the Court of
Appeals for the Sixth Circuit in which the court enforced an
order of the National Labor Relations Board (hereinafter
referred to as the “NLRB” or the Board“). The NLRB’s
order required the Association to bargain with Truck Driv-
ers, Chauffeurs & Helpers, Union No. 100 affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereinafter re-
ferred to as the “Union” or “Local 100”) for a bargaining
unit which includes blind and disabled clients who work in
the Association’s sheltered workshop.
The majority of a three-member panel of the Board in
Cincinnati Association for the Blind, 235 NLRB 1448
(1978), ordered an election among all production and
maintenance workers in the CAB’s sheltered workshop,
including blind and otherwise disabled workers. Appendix
B. Member Murphy dissented because workshop clients’
“welfare and not the financial success of their work activi-
ties, was the matter of [the sheltered workshop's] primary
' Sheltered Workshop Certificates are issued pursuant to Section 14(c)
of the Fair Labor Standards Act, 29 U.S.C. Section 214(c), and according
to 29 C.F.R. Chapter V. Part 525.
4
concern.” Cincinnati Association for the Blind, supra at
1449.
In this decision, the majority sought to distinguish
Goodwill Industries of Southern California, 231 NLRB 536
(1977), in which the Board did not assert jurisdiction over
the clients in a sheltered workshop.
Based on the view that the Board majority's decision was
contrary to both the evidence in the record and the law, and
for the purpose of appealing the case into the federal courts,
the Association declined to bargain with the Union.
The Union filed an unfair labor practice charge in which
it alleged that the CAB unlawfully refused to bargain with
it. An NLF3 Complaint containing that allegation was is-
sued. The (‘AB has consistently argued that the NLRB has
improperly gs rted jurisdiction over the workshop clients
in its sheltered workshop.
On September 18, 1979, a majority of a four-person panel
of the Board refused to reconsider its 1978 decision, and
held that the Association had violated Sections 8(a)(5) and
8(a)(1) of the National Labor Relations Act by refusing to
bargain with Local 100, and ordered the CAB to bargain
with the Union. Member Murphy again dissented. Cincin-
nati Association for the Blind, 244 NLRB 1140 (1979); Ap-
pendix C.
In a decision which has the “proper bounds of judicial
action” as its central theme, the Sixth Circuit enforced the
Board’s order requiring the Association to bargain with
Local 100 for a bargaining unit including blind and dis-
abled clients in its sheltered workshop. Cincinnati Associa-
tion for the Blind v. NLRB, 672 F.2d 567, 570 (6th Cir.
1982); Appendix A. The Sixth Circuit accepted the dis-
tinctions the Board sought to draw between the operative
facts in Cincinnati Association for the Blind, 235 NLRB
1448 (1978), and those in Goodwill Industries of Southern
California, supra, even though the “Board’s decision is
not as detailed as we might like . . . .” 672 F. ad at 573.
5
During the same period of time, the Board was confronted
with a similar controversy involving organizational! activ-
ity at the Lighthouse for the Blind of Houston. The Board,
citing and quoting its decision in Cincinnati Association for
the Blind, 235 NLRB 1448 (1978), ordered the Houston
Lighthouse to bargain with the petitioning union with re-
spect to disabled workshop clients. Lighthouse for the Blind
of Houston, 244 NLRB 1144, 1147 (1979).
The NLRB sought to enforce this order in the Fifth Cir-
cuit. However, enforcement was denied. NLRB v. Light-
house for the Blind of Houston, 653 F.2d 206 (5th Cir. 1981).
The Fifth Circuit found that:
“the fundamental relation between those individuals
{workshop clients] and the Lighthouse is different in
many significant aspects from a normal employment
relationship.” Jd. at 209.
Citing Goodwill Industries of Southern California, supra,
the Fifth Circuit found that it would not effectuate the pur-
poses of the National Labor Relations Act to assert juris-
diction over the workshop clients of the Houston Light-
house and held that the Board’s bargaining order was “not
supported by substantial evidence.” Jd. at 210.
Thus, the Fifth and Sixth Circuits have reached opposite
conclusions in factually and legally similar situations. As
the Sixth Circuit acknowledged, “our decision today ap-
pears to create a conflict in the law between the Fifth and
Sixth Circuits.” Cincinnati Association for the Blind v.
NLRB, supra at 574.
B. Statement of Facts
1. The Nature Of The Cincinnati Association For The
Blind.
The Cincinnati Association for the Blind is a charitable,
non-profit organization established pursuant to the laws of
the State of Ohio. A-13, A-404 - A-568. (Er. Exhs. 1 and
2(a)-2(k)).? It provides a wide variety of services to blind
and partially sighted persons. A-13, A-23. Individuals who
receive the benefit of one or more of the Associations’ serv-
ices are referred to as “clients”.* A-26. In addition to visual
handicaps, most clients of the Association have multiple
disabilities of various kinds, including epilepsy, orthopedic
problems, and mental retardation, which compound and
often overshadow their visual disabilities. A-30 - A-31,
A-126.
The initial contact of each client with the Association is
one or more interviews or counselling sessions with a case
or social worker. During these sessions, the problems and
needs of the particular individual are discussed and
explored. The social worker and the client work together to
develop a plan of appropriate services “to achieve his par-
ticular rehabilitation goal.” A-30 - A-31, A-102 - A-103.
The Association provides a full range of services to clients
to achieve their individual rehabilitation goals. Among
these are:
— Social and counselling services, in which counsel-
rern
clients in dealing with personal, disability- related
— — services, such as the low - vision lens serv-
ice and the talking book machine service, in which
technology is a to specific visual disabilities.
— Orientation mobility and daily living activities
training programs, in which clients learn ways in
which to deal with the problems of everyday living.
? References to the Joint Appendix before the Sixth Circuit are to page
numbers “A-00”. References to exhibits of the Board and the Association
are to “Brd. Exh.—” and “Er. Exh.—”, respectively.
The term “client” is used by the United States Department of Labor
in its regulations concerning sheltered workshops. See 29 C.F.R.
§ 525.2(d). It is an accepted designation for the recipients of social serv-
ices from a social service organization such as the Association.
7
— The sheltered workshop, in which clients satisfy
psychological needs, receive training, including vo-
cational rehabilitiation, and supplement financial
resources.
— Work evaluation and job placement services, in
which the Association assists visually disabled per-
sons in finding work in the competitive job market,
that is, where handicapped persons seek work in
competition with non-disabled persons.
CAB’s annual reports provide a comprehensive summary of
the services available. A-23 - A-26, A-29 - A-32, A-116,
A-405 - A-568, especially A-483 - A-512 and A-533 - A-554
(Er. Exhs. 2(a)-2(k), especially 2(g) and 2(i)).
2. The Association’s Sheltered Workshop.
The sheltered workshop is one of the services provided by
the Association as part of the broad spectrum of services
which are available to blind and visually handicapped per-
sons. It is available, like the other services of the Associa-
tion, only when the social worker and the individual client
agree that the particular service in question would be
beneficial to the individual. A-23 - A-24.
Individuals are eligible for the sheltered workshop and
are referred to it by a counsellor or case worker only if their
disabilities are so severe that they are unable to work in the
competitive job market. A-31, A-99, A-114 - A-115. Because
of the severity of their disabilities, approximately two-
thirds of workshop clients receive federal social security
disability pensions, and/or federal supplemental security
income, private disability pensions, or some combination of
these forms of aid. A-40, A-44 - A-45.
The purpose of the sheltered workshop program is to
provide a work and rehabilitation service to blind persons
in an atmosphere tailored to their individual needs by pro-
fessionals who are educated and trained to provide rehabili-
tation and therapeutic activity for blind and disabled per-
sons. A-18 - A-19, A-122 - A-123.
The workshop client, like other persons, has a psycholog-
ical need to be useful and productive. A disabled person
often feels alone, bored, and unproductive. In the sheltered
workshop, he has an opportunity to perform useful, pro-
ductive activities. It provides an opportunity for socializa-
tion, avoids boredom, and promotes dignity and a positive
self-image. A-31 - A-32.
Work in the workshop enables workshop clients to be-
come acclimated to a work environment. This acclimation
is a part of the vocational rehabilitation process which en-
ables some workshop clients to move from the sheltered
workshop environment into the competitive job market.
A-24, A-31 - A-32, A-98 - A-99, A-114 - A-115. It is a mea-
sure of the severity of their disabilities ti... only a limited
number are able to leave the sheltered workshop for com-
petitive employment.
The workshop program also gives workshop clients a
chance to earn money. This is an integral part of the re-
habilitation process. It provides necessary, tangible evi-
dence that the work is productive and is essential to the
rehabilitation process. It also provides income to individu-
als who have a need for financial support and no other
source of earned income, because they are unemployable in
the competitive job market. A-24, A-114 - A-115.
Thus, the workshop services are provided in a sheltered
setting, sanctioned by the Department of Labor, and speci-
fically designed to foster the individual rehabilitative and
therapeutic goals of workshop clients.
Persons grouped together by the NLRB in a single bar-
gaining unit in the Association’s sheltered workshop con-
sist of two separate groups. First are workshop clients who
are disabled. Second are four non-disabled regular em-
ployees. These non-client employees perform mechanical
and electrical maintenance and shipping and receiving.
A-40, A-44 - A-45, A-56, A-66, A-108, A-113, A-116 - A-120,
A-127 - A-131, A-145.
Blind and visually handicapped workshop clients gener-
ally perform repetitive packaging and light assembly
functions which do not require vision. Workshop clients
whose handicaps are not sight-related perform portions of
these functions for which sight is necessary, primarily sup-
port functions necessary to provide work to blind clients.
A-35 - A-36, A-123 - A-124, A-143 - A-144. Work performed
by clients in the workshop is not all of equal difficulty.
Workshop clients perform processes which take into ac-
count their particular kind and degree of disability. A-56 -
A-58, A-126 - A-129.
The duties of employees and workshop clients are totally
different. Non-client employees perform shipping and re-
ceiving and mechanical and electrical maintenance. They
do not perform the work of workshop clients. Because of
their disabilities, workshop clients do not and cannot per-
form the duties of non-client employees. A-106 - A-107,
A-130.
The Association’s workshop operates under a Sheltered
Workshop Certificate issued by the United States Depart-
ment of Labor. This certificate exempts workshop clients
from portions of the federal minimum wage law. It requires,
however, that workshop clients be paid an amount com-
mensurate with the amount paid to persons in competitive
industry for performing similar types and quantities of
work. This is achieved by paying workshop clients on a
piecework basis.*
The piecework rate is computed so that workshop clients
receive the same pay that employees in competitive indus-
*A very small percentage of workshop clients may be paid on an
hourly basis when they are not engaged in direct production work. The
applicable hourly rate in these situations is based on the workshop
client’s demonstrated earning capacity when working on a piece rate.
A-65, A-103 - A-104, A-147.
10
try receive for doing equivalent work. The piecework rate is
the same for every workshop client performing the same
function. A-132 - A-135.
In addition, pursuant to federal law, a special minimum
wage is established for each sheltered workshop and for less
productive individual workshop clients. These rates are
reviewed and adjusted by the Department of Labor on an
annual basis. A-36 - A-37, A-131 - A-136, A-154 - A-157,
A-569 - A-572; (Er. Exhs. 3-4)
The non-clients, non-handicapped persons who work in
the workshop are paid on an hourly basis. They receive at
least the regular statutory minimum wage and are not elig-
ible for coverage under the workshop exemption certificate.
A-104 - A-105, A-147 - A-149.
In addition to the sheltered workshop certificate, the
special status of sheltered workshops is recognized by Con-
gress in the Wagner-O’Day Act, 41 U.S.C. Section 46-48c.
Pursuant to this statute, the federal government supports
sheltered workshops by purchasing certain items only from
sheltered workshops for the blind and disabled. A-37.
There is a sharp distinction between the disciplinary sys-
tem applied to workshop clients and that applied to non-
client regular employees at the Association. No disciplinary
action whatsoever is taken against workshop clients be-
cause of their attendance patterns. Instead, the Association
views attendance as part of the rehabilitation process, in
which workshop clients are counselled to improve their at-
tendance. A-39 - A-41, A-43 - A-45, A-136 - A-139. On the
other hand, non-client employees have been disciplined and
discharged for failing to adhere to their regular work
schedule. A-39 - A-41, A-43, A-103, A-136 - A-137.
The Association also responds to more serious breaches of
appropriate behavior by workshop clients differently than
it does to similar actions by non-client employees. The As-
sociation’s responses to such behavior by workshop clients
are different, both in philosophy and purpose, than its ac-
11
tions against non-client employees for similar behavior.
This difference is a part of the special sheltered environ-
ment provided by the Association’s workshop.
The purpose of the workshop is to provide rehabilitation
services to workshop clients. Infractions of appropriate be-
havior by workshop clients, therefore, are treated in the
context of the rehabilitative purposes of the workshop.
Counselling by social workers is used to attempt to alter
inappropriate behavior. A-39 - A-41, A-136 - A-139. For
example, insubordination and physical assault of a super-
visor, intoxication, and theft are tolerated without dis-
cipline, even though these are usually offenses for which
discharge is appropriate in industry and for which the As-
sociation has discharged a non-client regular employee.
A-42 - A-44, A-136 - A-139.
Non-client employees are disciplined progressively. Dis-
charge is the ultimate disciplinary penalty used for inap-
propriate behavior by the non-disabled regular employees
the NLRB has included in the bargaining unit. Non-client
employees are disciplined as are employees in industry.
A-43 - A-44.
The sheltered workshop is subsidized by the general in-
come of the Association from gifts and bequests. Although
the objective of the workshop is to break even, from 1958
through 1965 the workshop operated at a deficit of approx-
imately $50,000 - $60,000 per year. During the eleven years
from 1966 through 1976, the sheltered workshop showed a
deficit nine mes and accumulated a deficit of $42,460. In
1969, the deficit was nearly $70,000, in 1966 it exceeded
$50,000, and in 1971, the deficit exceeded $40,000. These
deficits have been subsidized by other funds of the Associa-
tion. A-32 - A-35, A-405 - A-568; (Er. Exh. 2(a) - 2(k)).
REASONS FOR ALLOWING WRIT
Four primary reasons exist for the allowance of the Writ
of Certiorari sought by the Association in this case. First, as
12
is acknowledged by the Sixth Circuit, its decision in this
case creates a split between the decision of the Fifth Circuit
in NLRB v. Lighthouse for the Blind of Houston, 653 F.2d
206 (5th Cir. 1981), in which the Fifth Circuit held that the
assertion of jurisdiction by the NLRB over the clients in a
sheltered workshop was improper, and the Sixth Circuit’s
decision in this case.
Second, the decision of the Sixth Circuit enforces an
NLRB decision which is in conflict with other NLRB deci-
sions in analogous situations.
Third, the decision of the Sixth Circuit is in conflict with
the intent of Congress to govern work by clients in shel-
tered workshops through a body of law and regulation
which bes been established outside of and is inconsistent
with the asseruon of jurisdiction by the National Labor
Relations Board.
Fourth, the decision of the Sixth Circuit leads inevitably
to a lessening of the ability of the more than 2,500 sheltered
workshops throughout the country to provide the services of
a sheltered workshop program to disabled persons.
These issues have begun to come before the Board and
the courts with increasing frequency. Their resolution will
have a significant impact on sheltered workshops through-
out the country and on the more than 115,000 disabled
persons they serve. Therefore, it is fully appropriate for the
Supreme Court to grant this Petition for Certiorari and to
provide guidance to the NLRB and the courts of appeal so
that a uniform, reasoned resolution of these difficult issues
may be reached.
A. Conflict Between the Fifth and Sixth Circuits
The propriety of the National Labor Relations Board ex-
tending its jurisdiction over “employees” to clients in a
sheltered workshop has been before two courts of appeals
during the last year. The Fifth Circuit held, in NLRB v.
Lighthouse for the Blind of Houston, supra, that the
13
“Lighthouse employment policies are commensurate
with its rehabilitative objective. Thus, we conclude
that the Board’s order is not supported by substantial
evidence; that the Lighthouse has ot unlawfully re-
fused to bargain with the Union.” 4. at 210.
The Houston case followed essentially the same course
through the National Labor Relations Board as did the
Cincinnati Association for the Blind case. In both, the Board
asserted jurisdiction over the disabled clients in a sheltered
workshop without setting forth any reasoned bases. In
neither did it articulate a substantial, supportable basis for
its decision. The Board treated the cases as equivalent, cit-
ing its decision in Cincinnati Association for the Blind, 235
NLRB 1448 (1978), in support of its result in Lighthouse for
the Blind of Houston, 244 NLRB 1144, 1146-1147 (1979).
The decisions in both were based on the Board’s conclusory
finding that the relationship between the clients and the
sheltered workshops is governed by commercial or business
considerations.
Thus, in analogous factual and legal situations, the Fifth
and Sixth Circuits have reached perfectly inconsistent de-
cisions. The Sixth Circuit recognized this fact when it noted
that its decision in Cincinnati Association for the Blind v.
NLRB, supra at 574, “appears to create a conflict in the law
between the Fifth and Sixth Circuits.”
B. Conflict Between Decisions of the NLRB
The Sixth Circuit’s decision perpetuates and confirms the
arbitrary, capricious, unreasonable, and irreconcilable de-
cisions reached by the NLRB in factually indistinguishable
cases involving the primary issue in this controversy.
In Goodwill Industries of Southern California, 231 NLRB
536 (1977), a union sought to represent a bargaining unit
consisting of all truck drivers, helpers, and mechanics, all
of whom were handicapped persons or “clients.” The Board
14
declined to assert jurisdiction with respect to Goodwill’s
clients because the purpose of the relationship of the
handicapped client and Goodwill was to provide “clients (in
addition to employment) with rehabilitation, social service,
vocational, medical, and lega! counseling.” Jd. at 537.
In finding that “this employment relationship is different
in many, if not most, significant respects from the normal
employment relationship”, the Board reviewed the re-
habilitative purpose, the “hiring” of clients, the wage struc-
ture, and the disciplinary philosophy of Goodwill. On this
basis, the Board found that Goodwill had a special relation-
ship with its clients in which it sought to promote their
welfare. This special relationship is the result of the service
provided by sheltered workshops to their disabled clients by
professionally trained persons under certificates issued by
the Department of Labor. In Southern California, supra,
the Board concluded that to “permit collective bargaining
in this context is to risk harmful intrusion on the re-
habilitative process . . .”, and dismissed the union’s petition.
Id.
In its decision in Cincinnati Association for the Blind, 235
NLRB 1448 (1978), however, a majority of the Board panel
sought to distinguish Southern California, supra, by
suggesting that the Association’s sheltered “workshop op-
eration differs materially from the work program in which
Goodwill’s clients participated.” Cincinnati Association for
the Blind, supra at 1448. The distinctions the Board seeks
to draw, however, are unsupported, conclusory assertions
for which the Board offers no supporting factual base, are
contrary to the evidence in the record or are factually er-
roneous, and are, in some cases, irrelevant to resolving this
controversy.
First, the Board states that the “work program” at
Southern California, “and the production associated with it,
is]... one element of the rehabilitation plan, not an enter-
prise in itself.” Cincinnati Association for the Blind, supra
15
at 1448. From this, the Board would have it inferred that
production in the Association’s workshop is an enterprise in
itself. However, the Board does not indicate upon what
basis in the record it would have this inference drawn.
In fact, the Association’s rehabilitation program is
multi-faceted. It includes both vocational and non-
vocational rehabilitation. The record is undisputed that re-
habilitation and therapeutic services to workshop clients
constitute the sole purpose of the Association’s sheltered
workshop. Nowhere in the record is there any evidence that
the Association’s concern is productivity for its own sake.
Further, if the Board believes that the Association’s
workshop is geared toward productivity because of the
amount of its sales, approximately $2,000,000 in 1976,
Southern California’s annual sales of more than $4,000,000
show that no distinction can be made based on sales. And it
is undisputed that the Association’s workshop lost
$50,000-$60,000 per year prior to 1966. Since 1965, the As-
sociation has lost a cumulative total of over $40,000. No
operation where productivity is the primary goal would
continue to operate in this situation.
Therefore, like Southern California, the Association’s
workshop engages in production only as a necessary by-
product of rehabilitation. It cannot be said, based on the
record, that the Association’s production in its workshop is
an “enterprise in itself’ and the relationship between
Southern California and its clients, and Cincinnati and its
clients cannot be distinguished on this basis.
Second, the Board’s majority in Cincinnati Association
for the Blind, supra at 1448, stated that Southern Califor-
nia’s employees are “paid uniform wages, regardless of per-
formance. . . .” Clients in the Association’s sheltered work-
shop are generally paid on a piecework rate. This perceived
difference does not exist.
Workshop clients at Southern California are paid accord-
16
ing to their productivity, just as are workshop clients of the
Association. Wage payments to workshop clients based on
productivity are mandated by federal wage-hour law. See
14% of the Fair Labor Standards Act, 29 U.S.C. §214(c);
29 C.F.R. Chapter V. Part 525, Sections 525.7(a)(2) and
(a4) and 525. (a), (f), and (g). Thus, no distinction actually
exists between the methods of payment used by the Associ-
ation and Southern California.
In addition, the use of piecework rates to reflect produc-
tivity is an essential part of the rehabilitation program.
They provide needed positive reinforcement to appropriate
behavior by clients. For these reasons, the Board cannot
rely on any such supposed distinction as a basis for a find-
ing that the Association's operations are based on produc-
tivity to a greater degree than are Southern California's
operations. According to these criteria, they are equivalent.
The third rationale set forth by the Board majority in its
Cincinnati Association for the Blind, supra, decision for
distinguishing its Southern California, supra, decision is
that the Association’s activities are governed by economic
considerations rather than by the goal of rehabilitation. Of
course, to a certain extent, the decisions of both the Associ-
ation and Southern California are governed by economic
matters. Both have to pay sufficient attention to economics
to maintain a viable entity capable of rendering the re-
habilitation services it seeks to provide. However, in each
case the sole purpose is to provide, and the actual operation
of the workshop does provide, a range of services to blind
and disabled persons in order to enhance the quality of
their lives. That this is the sole purpose of the Association's
workshop is undisputed in the record.
It is indicative of the paucity of any factual basis for its
assertions that the “direction” of the Association’s work-
shop is “significantly based on economic considerations”,
that the Board does not support this generalization with
17
any evidentiary reference. Cincinnati Association for the
Blind, supra at 1449. Rather, the Board’s majority simply
restates the same conclusory principle, when it finds that
“normal economic considerations are a significant factor” in
the workshop-client relationship. Jd. Again, no factual
basis is provided.
However, the same conclusory thought is reiterated for a
third time: The workshop-client relationship and “employ-
ment conditions” in the sheltered workshop are said to be
“guided to a great extent by business considerations”. Id.
Nowhere does the Board majority explain how it has re-
ached this conclusion.
In fact, these conclusory statements are not supported by
the record. Yet the Sixth Circuit accepts the baseless dis-
tinctions set forth by the Board without critical analysis
and with only a comment that “the Board’s decision below
is not as detailed as we might like. . . Cincinnati Associa-
tion for the Blind v. NLRB, supra at 573.
The litany of other factors articulated by the Board as the
basis for its decision in Southern California, supra, are all
unquestionably present in the Association’s sheltered
workshop. Thus, the Board has reached contradictory deci-
sions on legally identical facts in these two cases.
Therefore, the decision of the Sixth Circuit is not only in
conflict with the Fifth Circuit’s decision in NLRB v. Light-
house for the Blind of Houston, supra, it enforces a Board
decision which is irreconcilable with the Board’s own deci-
sions in other cases which are legally indistinguishable.
C. Conflict Between Assertion By NLRB Of Jurisdic-
A
ntent
The operation of sheltered workshops is governed by
statutes and regulations which are separate from and in-
consistent with the National Labor Relations Act. By en-
18
forcing the Board’s order asserting jurisdiction over the
clients in the Association’s sheltered workshop, the Sixth
Circuit has created conflict between statutory provisions
unquestionably governing sheltered workshops and the
mandates of collective bargaining under the National
Labor Relations Act.
The relationship between the Association and the work-
shop client is defined by federal wage-hour law. Fundamen-
tal to the nature of that relationship is the fact that work-
shop clients are so severely handicapped that their “pro-
ductive capacity is impaired” and they cannot “engage in
competitive employment”. Section 14(c) of the Fair Labor
Standards Act, 29 U.S.C. § 214(c). In addition, many work-
shop clients receive Social Security Disability benefits be-
cause they are unable “to engage in any substantial gainful
activity by reason of any medically determinable physical
or mental impairment .. or blindness. 42 U.S.C.
$416(i 1).
Congress has enacted legislation which authorizes and
governs the operations of sheltered workshops. Section
14(c) of the Fair Labor Standards Act, 29 U.S.C. §214(c),
permits the issuance of a sheltered workshop certificate to a
workshop which demonstrates the therapeutic nature of its
program. The workshop certificate promotes the workshop
program by permitting payment of wages to its clients
which are below the standard minimum wage and which
are commensurate with the productivity of the client.
Regulations promulgated by the United States Depart-
ment of Labor, under which the Association’s sheltered
workshop certificate is obtained, recognize that the tra-
ditional employer-union coliective bargaining relationship
is inappropriate for a sheltered workshop. In any bargain-
ing situation, the potentiality for economic action to enforce
bargaining demands exists. However, a strike to enforce
bargaining demands might lead to the Association’s loss of
19
its sheltered workshop certificate. The sheltered workshop
regulations provide as follows:
“No special certificate will be issued pursuant to this
part 525 when abnormal labor conditions, such as a
strike, a lockout, or other similar condition, exists at
the workshop for which such certificate is requested.”
29 C.F.R. §525.8(d).
This could completely end the Association’s ability to pro-
vide this service to the handicapped.
The Wagner-O Day Act, 41 U.SC. §§46-48c, provides
that certain government contracts shall be set aside to
provide work in sheltered workshops for “blind and of other
severely handicapped individuals.” Thus, the government
seeks to assure the viability of sheltered workshops by
providing business to them for which they need not compete
with private industry. The Association’s workshop has been
awarded a number of government contracts pursuant to
this legislation, which is intended to provide employment
for blind and otherwise severely disabled persons.
The Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.,
provides for the channeling of federal money to “rehabilita-
tion” facilities, including sheltered workshops, through the
various states. See 29 U.S.C. Section 721(a)(16). “Rehabili-
tation” facilities (29 U.S.C. Section 721(a)(17)) are facilities
which offer “vocational rehabilitation services to handi-
capped individuals and extended employment for those
that cannot be readily absorbed in the competitive labor
market... 29 U.S.C. Section 706(11).
Thus, Congress has established and has continued to
support a statutory scheme authorizing, supporting, and
governing sheltered workshops because of their therapeutic
nature. That regulation is inconsistant with the normal
economic forces and factors which constitute the basic
premise of collective bargaining under the NLRA.
20
In addition, on several occasions between 1967 and 1976
bills were introduced in Congress which sought specifically
to bring sheltered workshops within the scope of the
NLRA.“ None was enacted.
Under all of these circumstances, the Board’s assertion of
jurisdiction over sheltered workshop clients is in real and
substantial conflict with the complex statutory scheme
created by Congress which governs the relationship be-
tween a sheltered workshop and its clients.
D. Conflict Between Assertion By NLRB Of Jurisdic-
tion Over Sheltered Workshop Clients And The Abil-
ity Of Sheltered Workshops To Provide Their
Therapeutic And Rehabilitation Services
In 1975 there were more than 2,750 sheltered workshops
certified by the Department of Labor, serving more than
115,000 clients. The number of certified workshops has
steadily increased.* These sheltered workshops provide a
desirable service to disabled persons, which Congress has
sought to foster, support, and control in a variety of specific
ways.
The intrusion of jurisdiction by the NLRB and collective
bargaining into this structure would limit the ability of
sheltered workshops to provide rehabilitative and thera-
peutic services to disabled persons. This fact was recognized
by the Board in Goodwill Industries of Southern California,
supra.
There the Board held that to permit collective bargaining
113 Cong. Rec. 12754 (1967); 113 Cong. Rec. 18355 (1967); 115 Cong.
Rec. 7575 (1969); 115 Cong. Rec. 6561 (1969); 117 Cong. Rec. 179 (1971);
119 Cong. Rec. 59 (1973); 122 Cong. Rec. 9176 (1976).
® See The Role of the Sheltered Workshops in the Rehabilitation of the
Severely Handicapped, Greenleigh Associates, Inc. (1975), a professional
study conducted pursuant to 29 U.S.C. Section 786, a part of the Re-
habilitation Act of 1973.
21
in a bargaining unit consisting of workshop clients “is to
risk a harmful intrusion on the rehabilitative process by
the Union’s bargaining demands.” Similarly, the assertion
of jurisdiction by the Board over the workshop clients in the
Association’s sheltered workshop would be injurious, be-
cause such bargaining is alien to the employer-client rela-
tionship present in a sheltered workshop.
The premise of this rationale is that an employer, such as
Southern California or the Association, has a unique “con-
cern for the welfare of his employees [which] competes with,
and in some sense displaces, the Union’s ordinary concern
for employee well-being” Jd. at 537.
The Board in Southern California, supra, continues that
“[tlo permit collective bargaining in this context is to risk a
harmful intrusion on the rehabilitative process by the
Union’s bargaining demands.” Jd. Union demands for
higher wages, for example, might cause the Association to
attempt to “hire” persons who are less severely disabled
and more productive in order to be able to continue to serve
the same number of persons.
Or it might require a greater subsidy from other Associa-
tion funds to continue the workshop at its current level,
which would divert funds from other services with the re-
sulting diminution of these other services to disabled per-
sons. Therefore, demands for higher wages would be com-
pletely inconsistent with the Association’s ability to offer
the service of a sheltered workshop to more severely
handicapped, less productive individuals, even though serv-
ice to these individuals is precisely the goal of the work-
shop.
In Southern California, supra, the Board noted other in-
consistencies between collective bargaining and a sheltered
workshop:
“Union demands for higher benefits for senior em-
ployees might tempt the employer to reconsider its pol-
icy of keeping clients on as long as necessary Con-
versely, union demands for unlimited emplo, ment
tenure could prejudice the employer’s efforts to provide
charitable empioyment to as many disabled people as
possible.” Jd. at 537-538.
These problems would be of equal importance if the Associ-
ation were to be required to engage in collective bargain-
ing.
In addition, the normal interplay of economic factors,
which constitute one of the basic premises of collective bar-
gaining under the NLRA, would not be present in an eco-
nomic dispute between a sheltered workshop and a bargain-
ing unit of workshop clients. For example, if a strike occurs
in the economic sector, the employer is moved toward
resolution of the dispute by lost profits, while employees are
moved by lost wages.
On the contrary, a sheltered workshop, which is offered
as a service and functions at a deficit, such as the Associa-
tion’s sheltered workshop, is not subject to the loss of profits
as a motive to settle a strike. In the context of a sheltered
workshop, economic action does not fit. It is useless and
incongruous. It is destructive to the relationship between
the workshop and the workshop client, and to the stability
of the sheltered workshop and its ability to achieve its
therapeutic purposes.
In summary, it is inappropriate and does not effectuate
the purposes of the Act for the Board to assert jurisdiction
over its workshop clients. As the Board stated in the strik-
ingly similar circumstances in Southern California, supra:
“The collective-bargaining process, in short, is likely to
distort the unique relationship between the employer
and client and impair the employer’s ability to accom-
plish its salutary objectives.” Id.
Therefore, this issue is extremely important to each of
23
the sheltered workshops in the United States and their
clients. Its outcome will fundamentally affect the ability of
sheltered workshops to continue to provide services to their
clients. The assertion of NLRB jurisdiction over sheltered
workshops certified by the Department of Labor will impair
their ability to provide their useful rehabilitative and
therapeutic services.
CONCLUSION
The Cincinnati Association for the Blind respectfully
urges this Court to grant this Petition for Writ of Cer-
tiorari, to review these important questions, and to reverse
the judgment of the Sixth Circuit.
Respectfully submitted,
STEPHEN S. EBERLY
2100 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
Of Counsel:
Dinsmore & SHOHL
2100 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
June 14, 1982
la
Appendix
APPENDIX A
No. 79-1522
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CINCINNATI ASSOCIATION For THE Own PetiTion for Re-
BLIND, * view and Cross-
Petitioner. Application for En-
v. forcement of an
Order of The Na-
NATIONAL LABOR RELATIONS BOARD, J tional Labor Rela-
Respondent. tions Board.
Decided and Filed March 17, 1982.
Before Merritt, MartTIN, and Jones, Circuit Judges.
Boyce F. Martin, In, Circuit Judge. This case comes
before us on the petition of the Cincinnati Association for
the Blind for review of cease and desist and bargaining
orders issued by the National Labor Relations Board. The
Board has cross-applied for enforcement of its orders. We
must determine whether the Board abused its discretion in
deciding that visually handicapped workers at the Associ-
ation’s Sheltered Workshop fer the Blind are entitled to the
protection of the National Labor Relations Act.
In May, 1977, the Communications Workers of America,
Local 440, filed a representation petition seeking certifica-
tion as the collective bargaining representative of the
Workshop employees. At a hearing held in August, 1977,
2a
Appendix
the Communications Workers disclaimed further interest
in the proceedings; however, Local Union 100, a Teamsters
affiliate, came forward and asked to be substituted for the
Communications Workers as the petitioner. The Board
agreed to the substitution. Local 100 sought to represent
“all production and maintenance employees” at the Work-
shop, a group which included both sighted and visually
handicapped workers.
Over the Association’s objections, the Board decided that
the handicapped workers were “employees” covered by the
National Labor Relations Act, asserted jurisdiction, and is-
sued a Direction of Election. 235 N.L.R.B. 1448. An election
was duly held in June, 1978 and produced a clear union
majority. The Association refused to bargain with the
Union, whereupon the Union brought unfair labor practice
charges. On September 19, 1979, the Board issued the or-
ders presently on appeal. 233 N.L.R.B. 1140.
The Association asks us to hold that its visually hand-
icapped workers fall outside the purview of the Act. in sup-
port of this position, it characterizes those workers not as
“employees”, but as “clients”, whose relationship with the
Workshop is rehabilitative or therapeutic rather than typi-
cally industrial. The Association raises a second issue by
objecting to the Board’s certification of a bargaining unit
which includes both sighted and handicapped workers.
The Board, on the other hand, contends that its applica-
tion of the Act to visually handicapped workers is entirely
consistent with the statutory purpose. It also defends its
approval of a single bargaining unit as a proper exercise of
discretion.
Before addressing the merits of this case, we believe a
brief description of the Cincinnati Workshop is appropriate
as background for the legal arguments.
The Cincinnati Association for the Blind is a non-profit
corporation dedicated to the interests of visually handi-
3a
Appendix
capped persons in the Cincinnati area. It is organized into
five operationally distinct departments: Finance, Office,
Casework, Rehabilitation, and Workshop. The Casework
and Rehabilitation departments offer training, counseling,
technical and social services to all blind members of the
community.
Some of the individuals who make use of the Associa-
tion’s social services are referred by caseworkers to the
Workshop for possible employment; final employment de-
cisions, however, are the province of the Workshop Man-
ager. At present, about seventy blind persons and four
sighted persons perform jobs at the Workshop under the
supervision of a managerial staff which includes, in addi-
tion to the Manager, four supervisors, a contract sales rep-
resentative, and an industrial engineer.
The Workshop produces goods under contract with the
federal government and a number of private industries.
Some of these contracts are secured pursuant to the
Wagner-O’Day Act, some through competitive bidding. The
Workshop is involved in several types of production, includ-
ing a paper conversion manufacturing operation, which
supplies over half the adding machine tape and teletype
paper used by the federal government, and a sizeable as-
sembly and packaging operation which serves several pri-
vate corporations. In 1976, the Workshop generated reve-
nues in excess of $2,000,000, $144,000 of which represented
profit. The Association used this profit to defray unrelated
expenses.
With very few exceptions, the blind workers are paid on a
piece-rate basis, whereas the sighted employees are paid by
the hour. The Fair Labor Standards Act permits sheltered
workshops to pay certain handicapped workers less than
the current minimum wage; the Cincinnati Workshop holds
a certificate of exemption, issued by the Department of
Labor, which authorizes a special minimum wage of $1.49
4a
Appendix
per hour. The Association’s blind workers receive holiday
pay, vacation pay, workers compensation insurance, and
life insurance. Sighted employees receive the same benefits
plus a pension plan. Blind and sighted workers alike have a
five-day, 8:30 a.m. to 4:30 p.m. work week.
The Workshop does not suspend or terminate blind work-
ers for production errors; those forms of discipline are re-
served for serious cases of misconduct such as violence or
theft. However, the workers are expected to produce goods
which conform to the quality standards of the marketplace.
If a handicapped worker receives two reprimands for pro-
duction errors, he is referred to the Work Evaluation Unit
for “retraining.” During assignments to this Unit, workers
are either not paid at all or paid at a lower rate than they
customarily receive.
The Workshop operation is not designed primarily to
provide temporary, on-the-job training which would enable
blind workers to secure employment elsewhere. On the con-
trary, the program contemplates long-term employment at
the Workshop. Very few handicapped workers ever leave to
enter the competitive job market.
We turn now to the principal substantive issue before
us—the Board’s application of the National Labor Relations
Act to the Association’s visually handicapped workers. The
Association challenges the decision below on two grounds:
first, it contends, the workers in question are not “em-
ployees” within the meaning of the Act; and second, even if
these workers are statutory “employees”, the Board abused
its discretion in exercising jurisdiction over them.
We have given both arguments careful consideration and
have at length concluded that endorsement of either would
exceed the proper bounds of judicial action.
The National Labor Relations Act does not attempt a
precise definition of an “employee.” Section 2(3) merely
states that the “term ‘employee’ shall include any employee
5a
Appendix
.. unless this subsection explicitly states otherwise.” 29
U.S.C. § 152(3). None of the statutory exceptions bear on
this case.
The Association’s most serious legal »rgument that hand-
icapped workers in sheltered workshops fall outside the
purview of the Act rests on the premise that Congress in-
tended to exclude them from coverage. If this contention is
valid, then the Board exceeded its statutory jurisdiction
here.
We have found nothing in the Act’s legislative history to
indicate that Congress considered the status of handicap-
ped workers at the time it enacted the statute. The Associ-
ation points out that between 1967 and 1976 several bills
were introduced in the House of Representatives with the
following preamble: “A bill to amend the National Labor
Relations Act to secure to physically handicapped workers
employed in sheltered workshops the right to organize and
. bargain collectively. ...” 113 Cong. Rec. 12754 (1967); 113
Cong. Rec. 18355 (1967); 115 Cong. Rec. 7575 (1969); 115
Cong. Rec. 6561 (1969); 117 Cong. Rec. 179 (1971); 119
Cong. Rec. 59 (1973); 122 Cong. Rec. 9176 (1976). At each
introduction, this bill was referred to the House Committee
on Education and Labor, where it apparently remained.
This information, standing alone, is inconclusive of the is-
sue. It reflects only the opinion of the bill’s sponsor that the
Act in its present form does not protect handicapped work-
ers. We have no indication that a consensus of Congress
shares this belief.
In the absence of direct evidence of Congressional intent,
the Association asks us to infer from other legislation that
the Act does not apply to sheltered workshop workers. It
directs our attention to the legislative histories of the Fair
Labor Standards Act, 29 U.S.C. § 214(c), the Wagner-O’Day
Act, 41 U.S.C. §§ 46-48, and the Rehabilitation Act of 1973,
6a
Appendix
41 U.S.C. § 701, et seg.
According to the Association, these histories demonstrate
that Congress has recognized and approved the “re-
habilitative” and “therapeutic” function of sheltered work-
shops. To some extent, at least, this observation is correct.
We do not doubt that Congress has indeed sought to benefit
the handicapped through legislation favoring sheltered
workshops; we are not persuaded, however, that this policy
necessarily implies a Congressional intent to exclude hand-
icapped workers from the National Labor Relations Act.
It is the Association’s position that the introduction of
collective bargaining into the sheltered workshop milieu
will inevitably destroy the “therapeutic” effect of the work-
shop experience on the individual worker. Thus, argues the
Association, if Congress was disposed to permit collective
bargaining in sheltered workshops, it would not, in other
legislation, address the sheltered workshop concept in the
language of “rehabilitation” and “therapy.”
We perceive two flaws in this argument. First, Congress
has not indicated that it shares the Association’s belief in
the fundamental incompatibility of collective bargaining
and any form of “therapy.” Neither has it expressed a con-
trary policy. We simply lack a basis on which to make an
informed judgment about “Congressional intent” in this
area.
Thus, we confront a choice between attempting to “second
guess” Congress on a political and philosophical issue and
relying on the broad, unequivocal language of the statute.
Inasmuch as we cannot adopt the first course without im-
' The Fair Labor Standards Act provides employment opportunities for
handicapped workers by permitting workshops to pay wages lower than
the prevailing minimum wage. The Wagner-O Day Act permits the fed-
eral government to purchase goods produced at workshops on a non-
competitive basis. The Rehabilitation Act of 1973 entitles sheltered
workshops to financial assistance for certain programs which offer voca-
tional rehabilitation services to handicapped persons.
7a
Appendix
pinging on the legislative function, we feel constrained to
pursue the latter. Accordingly, we decline to carve out an
exception to the plain language of Section 2(3) of the Act.
In this context, we note that the present case differs sig-
nificantly from NLRB v. Bell Aerospace, 416 U.S. 267
(1974). There, after a detailed examination of the Act's
pre- and post-enactment history, the Supreme Court held
that “managerial employees” belong to a class “so clearly
outside the Act that no specific exclusionary provison was
thought necessary.” Jd. at 283. The Bell Aerospace Court
had the benefit of an extensive legislative history which
permitted it to assess Congress’ intent with some con-
fidence. No such insight into Congress’ position on the pre-
sent issue is available to us.
Our second objection to the Association's argument lies in
its apparent assumption that the primary, overriding con-
cern of all sheltered workshops is to provide the handi-
capped with “therapy” and “rehabilitation.” Even if we are
willing to impute to Congress the Association’s theory that
collective bargaining has no place in a therapeutic envi-
ronment, we would have reservations about inferring a
blanket exemption from the Act for all sheltered work-
shops. Although all sheltered workshops presumably have
some connection with programs geared to providing social
services, the evidence in this and other cases strongly
suggests that this “rehabilitative” and “therapeutic” nexus
is, in some instances, subordinated to routine business
considerations. Thus, even if Congress intended to exempt
all primarily therapeutic institutions from the Act, some
sheltered workshops would fail to qualify.
In practice, the Board has apparently adopted a policy
based on this very distinction. It examines workshop oper-
ations on a case by case basis and determines whether the
guiding principle of each is “rehabilitative” or typically in-
dustrial. In its discretion, it then exempts those which fit
8a
Appendix
the former description and asserts jurisdiction over those
which display significant economic purposes. Compare,
Goodwill Industries of Southern California, 231 N.L.R.B.
536 (1977), and Goodwill Industries of Philadelphia,
——N.L.R.B. ——- (1978); with Chicago Lighthouse For the
Blind, 225 N.L.R.B. 249 (1976), Lighthouse for the Blind of
Houston, 244 N.L.R.B. 1144 (1979), enforcement denied, 653
F. 2d 206 (5th Cir. 1981), and the present cae. Thus, under
present Board practice, workshops which are truly primar-
ily oriented toward providing social services need not fear
any potential adverse impact collective bargaining might
have on their programs. On the other hand, workers at
workshops which closely resemble traditional, for-profit
business enterprises enjoy the same legal protections as
their counterparts in private industry.
Congress, of course, is free to alter this system of case by
case adjudication at any time, and in any manner it sees fit.
That it has not yet done so suggests that it is satisfied with
the present state of affairs.
Having determined that sheltered workshop workers are
not, as a matter of law, excluded from the Act, we must
decide if the Board had an adequate factual basis for
characterizing these particular workers as “employees.”
NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944),
established that the Board enjoys wide discretion in de-
termining an individual or group’s “employee” status. As a
corollary to this discretion, Board decisions in this area are
subject to limited judicial review. II reviewing the
Board's ultimate conclusions, it is not the court’s function to
substitute its own inferences of fact for the Boards. The
Board’s determination that specified persons are ‘em-
ployees’ under the Act is to be accepted if it has ‘warrant in
the record’ and a reasonable basis in law.” Jd. at 131; see
also Bayside Enterprises v. NLRB, 429 U.S. 298, 304 (1977);
Physicians National House Staff Assn. v. Fanning , 642 F. 2d
492 (D.C.Cir. 1980), cert. denied, 450 U.S. 917 (1981).
9a
Appendix
Given this standard of judicial review, we have no diffi-
culty upholding the factual inferences which led to the
Board’s conclusion that these handicapped workers are
“employees” under the Act. The Appellant's arguments on
this question are variations on a single theme — that the
relationship between Workshop and workers differs in cer-
tain respects from the norm associated with private indus-
try and that the blind workers are therefore not “true” em-
ployees. Our review of the record, however, indicates that
the Board took into account the special characteristics of
sheltered workshops but remained unpersuaded that these
particular handicapped workers were thereby transformed
into something other than statutory “employees.” The
Charging Parties below documented in detail the extent to
which the blind workers operate under terms and con-
ditions typical of “employment.” The Board, in its discre-
tion, apparently concluded that the similarities between
these workers and their counterparts in private industry
outweighed the differences. On the present record, we are
unprepared to require the Board to shift its emphasis and
reach a contrary result.
We now consider the Association’s alternative contention
that even if its workers are statutory “employees”, the
Board should have declined to assert jurisdiction in this
matter. In support of its argument that the exercise of
jurisdiction here “would not effectuate the purposes of the
Act”, the Association again advances the theory that “re-
habilitation” and collective bargaining are antagonistic
concepts. In particular, it directs our attention to the
Board’s decision in Goodwill Industries of Southern
California, supra. There, the Board did in fact decline
jurisdiction over disabled workers on the premise that col-
lective bargaining would disrupt the rehabilitative rela-
tionship between employer and employee. The Association
contends that Southern California and the present case are
indistinguishable on their facts and asks us to reverse the
10a
Appendix
Board for failure to treat similarly situated persons in the
same manner.
Once again, the Association has entered an area of Board
discretion which is subject to limited judicial review, Glen
Manor Home for the Jewish Aged v. NLRB, 474 F.2d 1145
(6th Cir. 1973); NLRB v. Austin Developmental Center, 606
F.2d 785 (7th Cir. 1979).2 The Board's decision at the Rep-
resentation stage of these proceedings reveals that the re-
sult in this case was based on a finding of fact that economic
motives prevail at the Cincinnati Workshop despite the As-
sociation’s professed “therapeutic” orientation. “The Em-
ployer’s direction of the workshop is significantly based on
economic considerations . Normal economic con-
siderations are a significant factor in the Employer- client“
relationship. The Employer’s relations with workshop
“clients” and the employment conditions existing at the
workshop are guided to a great extent by business con-
siderations.” 235 N.L.R.B. at 1449. On the present record,
we cannot say that the Board’s conclusion was an abuse of
discretion.
Furthermore, although the Board’s decision below is not
as detailed as we might like, we believe it does adequately
distinguish the facts of the present case from those of
Southern California, supra. In the first place, the Board
emphasized in Southern California that its decision did not
stand for the proposition that it would decline jurisdiction
? Generally, when the courts speak of the Board’s “discretionary juris-
diction”, the question under consideration is whether an employer's ac-
tivities have sufficient impact on commerce to warrant the exercise of
jurisdiction. See 49 U.S.C. § 164(c). In this case the Association does not
pursue a “commerce issue.” As a matter of legal nicety, it might be
preferable to subsume this discussion under the heading of the Board's
determination of statutory “employee” coverage. However, throughout
this proceeding, the parties and the Board alike have referred to the
Board's action below as the assertion of “discretionary jurisdiction.” In-
asmuch as the same standard of judicial review applies regardless of the
way we frame the issue, we have, for purposes of clarity, attempted to
“track” the presentation adopted by the purties and the Board.
lla
Appendix
in all cases involving sheltered workshops. It referred to
that case as the “rare, possibly nonrecurring instance
where an employer's concern for the welfare of his em-
ployees competes with, and in some sense displaces, the
union’s ordinary concern for employee well-being.” 231
N.L.R.B. at 537.
Second, in Southern California, Goodwill Industries re-
served fifty percent of its job openings for the short-term
training of workers who soon moved on to find employment
in the competitive market. Thus, in a very real sense,
Goodwill operated a rehabilitative vocational clinic; it had
on its staff a full-time job placement specialist to help
trainees find permanent employment elsewhere. By con-
trast, the Association’s workshop offers long-term employ-
ment with little emphasis on the acquisition of skills other
than those required for Workshop production.
At Goodwill, counseling and other social services were an
integral part of a worker’s relationship with the employer.
As the Board observed, “Goodwill’s work program, and the
production associated with it, was one element of the re-
habilitation plan, not an enterprise in itself.” 355 N.L.R.B.
at 1448. On the other hand, workers at the Cincinnati
workshop who wish to obtain social services must seek
them in the same manner as other blind members of the
community.
In short, we agree with the Board that the circumstances
of the Southern California case differ materially from the
situation at the Cincinnati workshop. We therefore reject
the Association’s contention that the Board’s action con-
stituted an abuse of discretion.
Finally, in a separate issue, the Association challenges
the Board’s certification of a bargaining unit which in-
cludes both sighted and handicapped employees. It cites as
the basis for its objection certain differences in the Work-
shop’s disciplinary policy toward blind and sighted workers,
12a
Appendix
the piece-work versus hourly rate wage structure of the two
groups, and the sighted workers’ participation in the As-
sociation’s pension plan. The Board, however, found these
minor differences insufficient to affect the “appropriate-
ness” of a bargaining unit in which all employees work
closely together and serve interdependent functions. We
agree, and decline to disturb this exercise of the Board’s
discretion. See Michigan Hospital Service Corp. v. NLRB,
472 F.2d 293 (6th Cir. 1972); NLRB v. Southern Metal Ser-
vice, 606 F.2d 512 (5th Cir. 1979).
In © ncluding our discussion of this case, we note that we
are aware of the Fifth Circuit's recent refusal to grant en-
forcement of the Board’s orders in NLRB v. Lighthouse for
the Blind of Houston, 653 F.2d 206 (5th Cir. 1981). Al-
though our information about the facts underlying that
case is incomplete, our decision today appears to create a
conflict in the law between the Fifth and Sixth Circuits. In
this context, suffice it to say that we do not depart lightly
from the principle of uniformity in the federal court system;
on the contrary, we have reached our present conclusion
only after lengthy deliberation on the respective functions
of Congress, the Board, and federal Court of Appeal.
Enforcement granted.
lb
Appendix
APPENDIX B
Cincinnati Association for the Blind and Truck Drivers,
Chauffeurs and Helpers Local Union No. 100, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case 9—RC— 12066
May 5, 1978
DECISION AND DIRECTION OF ELECTION
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a petition duly filed on May 18, 1977, under Section
%c) of the National Labor Relations Act, as amended, a
hearing was held on August 31, 1977, before Hearing Of-
ficer Jay M. Presser. Following the hearing, and pursuant
to Section 102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the Regional
Director for Region 9 transferred this case to the Board for
decision. Thereafter, the Employer and the Petitioner filed
supporting briefs and the National Federation of the Blind
filed an amicus curiae brief.
Pursuant to the provisons of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor Re-
lations Board has delegated its authority in this proceeding
to a three-member panel.
The Board has reviewed the Hearing Officer’s rulings
made at the hearing and finds that they are free from prej-
udicial error. They are hereby approved.
Upon the entire record, the Board finds:
' The petition was filed by Communication Workers of America Local
4400 which, at the hearing, disclaimed interest in representing any of
the Employer's employees and moved to withdraw from the proceeding.
Truck Drivers, Chauffeurs and Helpers Local Union No. 100 intervened
at the hearing, submitted a showing of interest sufficient to support a
petition, and moved to substitute itself as the Petitioner. We hereby
grant both motions and designate Truck Drivers, Chauffeurs and
Helpers Local Union No. 100 as the Petitioner.
2b
Appendix
1. Cincinnati Association for the Blind is an Ohio corpo-
ration which operates a sheltered workshop. In 1976 work-
shop sales exceeded $2 million and the Employer sold goods
valued in excess of $50,000 directly from its facility in Cin-
cinnati, Ohio, to points outside the State of Ohio. Accord-
ingly, we find that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The parties stipulated, and we find, that the
Petitioner is a labor organization within the meaning of the
Act which claims to represent certain employees of the
Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Sections NM and 2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit consisting of
all production and maintenance employees, including
shipping and receiving employees, employed by the Em-
ployer at its sheltered workshop located at 2045 Gilbert
Avenue, Cincinnati, Ohio, excluding office clerical em-
ployees, professional employees, guards and supervisors as
defined in the Act. Petitioner's requested unit includes
employees not having employment disabilities and indi-
viduals having some visual or other disability (referred to
as clients). The Employer contends that its workshop
“clients” are not employees within the meaning of Section
2(c) of the Act and, even if they are, the Board should not
assert jurisdiction over them since to do so may hinder the
Employer's rehabilitative efforts. The Employer also
argues that differences in skills, duties, and supervision
between “clients” and nondisabled employees make
Petitioner's proposed overall unit inappropriate.
Cincinnati Association for the Blind is a nonprofit corpo-
ration providing social and technical services to visually
handicapped persons. One of the Employer’s programs is a
3b
Appendix
sheltered workshop, at which approximately 70 “clients”
and 4 nondisabled employees assemble, sew, and package
products that the Employer has contracted to produce. In
1976 workshop sales and services generated a profit of
$144,000 that was used to defray other expenses of the As-
sociation.
The Employer contends that Goodwill Industries of
Southern California, 231 NLRB 536 (1977), requires that
the Board refrain from asserting jurisdiction over the work-
shop “clients.” However, Goodwill is distinguishable, in our
judgment, because the Employer’s workshop operation dif-
fers materially from the work program in which Goodwill’s
“clients” participated. The Board, in its discretion, declined
to assert jurisdiction over Goodwill’s “clients” (individuals
suffering from various types of employment disabilities) be-
cause the single overriding purpose of the “employer-client”
relationship was rehabilitation. Goodwill’s work program,
and the production associated with it, was one element of
the rehabilitation plan, not an enterprise in itself.
Goodwill’s “clients” were paid uniform wages, regardless
of performance, to collect discarded items and refurbish
them for sale in Goodwill stores. The Employer, on the
other hand, obtains contracts by competitive bidding with
private firms and pays its “clients” on a piece-rate basis.
Thus, the work performed by “clients” at the Employer's
workshop must not only be acceptable to the Employer, but
it must also meet the standards of the party who awarded
the contract. The Employer's emphasis on productivity is
reflected in the fact that workshop wages range from $.58 to
$6 per hour.”
The Employer's direction of the workshop operation is
significantly based on economic considerations. Unlike the
situation in Goodwill, normal economic considerations are
The Employer has obtained a sheltered workshop certificate from the
Department of Labor which exempts workshop “clients” from Federal
minimum wage laws.
4b
Appendix
a significant factor in the Employer-“client” relationship.
The Employer's relations with workshop “clients” and the
employment conditions existing at the workshop are guided
to a great extent by business considerations. We therefore
do not exercise our discretion to decline jurisdiction but
rather find that assertion of jurisdiction over the “clients”
employed at the Employer’s workshop will effectuate the
purposes of the Act.
We find that an overall production and maintenance unit
at the Employer’s workshop is appropriate. “Clients” and
other employees work closely together at the workshop and
perform interdependent functions. Both groups of em-
ployees share common supervision and substantially simi-
lar terms and conditions of employment. Therefore, the fol-
lowing employees of the Employer constitute an appropri-
ate unit for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees and
“clients,” including shipping and receiving employees,
of the Employer’s workshop located at 2045 Gilbert
Avenue, Cincinnati, Ohio, excluding office clerical
employees, professional employees, guards and super-
visors as defined in the Act.
Direction of Election and Excelsior footnote omitted from
publication.]
MEMBER Murpny, dissenting:
I would not assert jurisdiction over this Employer for the
reasons stated in my and Member Penello’s dissenting opin-
ion in Abilities and Goodwill, Inc., 226 NLRB 1224 (1976).
See also my dissent in Goodwill Industries of Southern
California, 231 NLRB 536 (1977).
Furthermore, despite the majority's attempt here to
make the operations under consideration appear to be es-
sentially commercial in order to distinguish the Board
5b
Appendix
majority's dismissal in Goodwill Industries, it is
apparent—despite the existence of certain minor
differences—that the Employer’s so-called commercial ac-
tivities are “merely ancillary to its rehabilitative object”
(Epi-Hab Evansville, Inc., 205 NLRB 637 (1973)) and that
the Employer’s “primary objectives are the converse of a
normal employer's objectives” (Goodwill Industries, supra).
Thus, here the primary concern of the Employer is to supply
work for handicapped individuals (also called clients he-
rein).
The majority's attempt to distinguish the Employer's op-
eration from Goodwill’s on the purported basis that here the
Employer's relationship to its “clients” and the employment
conditions affecting them are guided largely by “business
considerations,” whereas Goodwill’s are not, misses the
point. Unlike the typical commercial enterprise, the Em-
ployer does not exist for the purpose of maximizing profits,
but for the sole purpose of maintaining work for the hand-
icapped. That it must, to accomplish that purpose, be com-
petitive with commercial enterprises in order to obtain and
retain a market for its products does not alter its character
or purpose. Nor does the fact it pays its “clients” on a piece-
rate basis as an incentive to increase their productivity so
as to enable it to meet the competition and thus survive.
Consequently, it is clear that under a realistic apprisal of
the facts the petition should be dismissed under the major-
ity position enunicated in Goodwill Industries as well as
under my dissenting view in that case. The majority hold-
ing there was to the effect that the Board would not assert
jurisdiction over those charitable enterprises where the
employees’ welfare, and not the financial success of their
work activities, was the matter of primary concern.
As I would not in any event assert jurisdiction over the
Employer, I find it unnecessary to reach the other issues
raised in this proceeding.
lc
Appendix
APPENDIX C
Cincinnati Association for the Blind and Truck Drivers,
Chauffeurs and Helpers Local Union No. 100, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Case 9-CA-12914
September 18, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS,
MURPHY, AND TRUESDALE
Upon a charge filed on August 30, 1978, by Truck Driv-
ers, Chauffeurs and Helpers Local Union No. 100, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union, and duly served on Cincinnati Associa-
tion for the Blind, herein called Respondent, the General
Counsel of the National Labor Relations Board, by the Re-
gional Director for Region 9, issued a complaint and notice
of hearing on August 31, 1978, against Respondent, alleg-
ing that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before an adminis-
trative law judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the complaint
alleges in substance that on June 15, 1978, following a
Board election in Case 9-RC-12066 the Union was duly
certified as the exclusive collective-bargaining representa-
tive of Respondent's employees in the unit found appropri-
2c
Appendix
ate;' and that, commencing on or about August 25, 1978,
and at all times thereaft Respondent has refused, and
continues to date to refuse « bargain collectively with the
Union as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so. On
September 15, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the alle-
gations in the complaint.
On September 25, 1978, counsel for the General Counsel
filed directly with the Board a Motion for Summary Judg-
ment. On October 5, the National Industries for the Blind
(NIB) filed a motion for leave to intervene as amicus curiae,
for reconsideration en banc of the Board’s Decision in Case
9-RC-12066, and for oral argument. On October 16, 1978,
the Regional Director for Region 9 referred to the Board the
National Federation of the Blind’s (NFB) motion to inter-
vene as a party.
The Charging Party filed statements in opposition to the
motions of the NIB and the NFB on October 26, 1978. On
November 6, 1978, Respondent filed a motion for oral
argument, en banc consideration, and summary judgment.
The Charging Party filed a statement in opposition to Re-
spondent’s motion on November 8, 1978. The NFB, by letter
dated November 22, 1978, also opposed Res pondent's Mo-
tion for Summary Judgment. On January 31, 1979, as cor-
rected on February 7, 1979, the Board issued its order
granting the motions to intervene, denying the motions for
oral argument, and transferring the proceeding to the
' Official notice is taken of the record in the representation proceeding,
Case 9-RC-12056, as the term “record” is defined in Secs. 102.68 and
102.69 g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va., 1967); Follet Corp., 164 NLRB 378 (1967), enſd. 397 F.2d 91
(7th Cir. 1968); Sec. d of the NLRA, as amended.
ge
Appendix
Board, and a Notice To Show Cause. Respondent, the NIB,
the NFB, and the Charging Party thereafter filed responses
to the Notice To Show Cause.”
Upon the entire record in this proceeding, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to the
Notice To Show Cause, Respondent contends that the
Union's certification was invalid because sheltered work-
shop clients are not employees within the Section 2(3) of the
Act and an overall production and maintenance unit at the
workshop is not appropriate for collective bargaining. The
General Counsel argues that all material issues have been
previously decided and there are no litigable issues of fact
requiring a hearing. We agree with the General Counsel.
Our review of the record herein, including the record in
Case 9-RC-12066, discloses that a representation hearing
was held on August 31, 1977. Respondent contended at that
time that (1) workshop clients are not employees within the
meaning of Section 2(3) of the Act; (2) even if clients are
employees, it would not effectuate the purposes of the Act to
assert jurisdiction over them; and (3) a bargaining unit in-
cluding all production and maintenance employees and
clients is inappropriate. On May 5, 1978, the Board issued a
Decision and Direction of Election asserting jurisdiction
with respect to the clients employed at Respondent's work-
shop and finding a unit of all production and maintenance
* Respondent also moved to strike two Wal Strect Journal articles
appended to the NFB's brief in support of the General Counsel's Motion
for Summary Judgment and all references to the articles on the grounds
that they are nonprobative, immaterial, irrelevant, and prejudicial.
Since we do not rely on the articles in ruling on the Motions for Summary
Judgment, we find it unnecessary to pass upon Respondent's motion to
strike.
4c
Appendix
employees and clients to be appropriate. An election was
conducted on June 7, 1978, in which 44 votes were cast for
and 35 against the Union, with 3 challenged ballots. On
June 15, 1978, the Regional Director for Region 9 issued a
Certification of Representative.
It is well settled that in the absence of newly discovered
or previously unavailable evidence or special circumstances
a respondent in a proceeding alleging a violation of Section
8(a\(5) is rot entitled to relitigate issues which were or
could have been litigated in a prior representation proceed-
ing.“
All issues raised by Respondent in this proceeding were
or could have been litigated in the prior representation pro-
ceeding, and Respondent does not offer to adduce at a hear-
ing any newly discovered or previously unavailable evi-
dence, nor do we find that any special circumstances exist
herein which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find the Respondent has not raised any issue
which is properly litigable in this unfair labor practice pro-
ceeding. Accordingly, we grant the General Counsel’s Mo-
tion for Summary Judgment and deny Respondent's Motion
for Summary Judgment.“
On the basis of the entire record, the Board makes the
following:
* See Pittsburgh Plate Glass Co. v. N. LR B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67 (f) and 102.69%c).
* As noted above, Respondent and the NIB filed motions seeking, inter
alia, reconsideration en banc of the Board's decision to assert jurisdiction
with respect to Respondent's sheltered workshop clients, We deferred
ruling on the requests for reconsideration in order to consider the sup-
porting arguments. Having considered the responses to the Notice To
Show Cause, we find no basis for reconsidering the decision in the repre-
sentation proceeding that Respondent's clients are employees within
the meaning of Sec. 2(3) of the Act and that the assertion of jurisdiction
with respect to them will effectuate the purposes of the Act.
5c
Appendix
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation engaged in the opera-
tion of a sheltered workshop at its facility located at 2045
Gilbert Avenue, Cincinnati, Ohio. During the past 12
months Respondent’s workshop sales exceeded $2 million
and Respondent sold goods and materials valued in excess
of $50,000 directly from its facility in Cincinnati, Ohio, to
poin.s outside the State of Ohio.
We find, on the basis of the foregoing, that Respondent is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers, Chauffeurs and Helpers Local Union No.
100, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The Unit
The following employees of Respondent constitute a unit
appropriate for collective-bargaining purposes within the
meaning of Section 9b) of the Act:
All production and maintenance employees and clients,
6c
Appendix
including shipping and receiving employees, of the Re-
spondent’s workshop located at 2045 Gilbert Avenue,
Cincinnati, Ohio, excluding office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act.
2. The Certification
On June 7, 1978, a majority of the employees of Respon-
dent in said unit, in a secret-ballot election conducted under
the supervison of the regional Director for Region 9, desig-
nated the Union as their representative for the purpose of
collective bargaining with Respondent. The Union was
certified as the collective-bargaining representative of the
employees in said unit on June 15, 1978, and the Union
continues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request to Bargain and Respondent's Refusal
Commencing on or about August 17, 1978, and at all
times thereafter, the Union has requested Respondent to
bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in the
above-described unit. Commencing on or about August 25,
1978, and continuing at all times thereafter to date, Re-
spondent has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive representative
for collective bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since August
25, 1978, and at all times thereafter, refused to bargain
collectively with the Union as the exclusive representative
of the employees in the appropriate unit, and that, by such
refusal, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section (a5,
and (1) of the Act.
7c
Appendix
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom, and, upon request, bargain collec-
tively with the Union as the exclusive representative of all
employees in the appropriate unit, and, if an understanding
is reached, embody such understanding in a signed agree-
ment.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected bargain-
ing agent for the period provided by law, we shall construe
the initial period of certification as beginning on the date
Respondent commences to bargain in good faith with the
Union as the recognized bargaining representative in the
appropriate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
The Board, upon the basis of the foregoing facts and the
entire record, makes the following:
8c
Appendix
ConcLusions oF LAW
1. Cincinnati Association for the Blind is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Truck Drivers, Chauffeurs and Helpers Local Union
No. 100, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees and
clients, including shipping and receiving employees, of Re-
spondent’s workshop located at 2045 Gilbert Avenue, Cin-
cinnati, Ohio, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section %b) of the
Act.
4. Since June 15, 1978, the above-named labor organi-
zation has been and now is the certified and exclusive rep-
resentative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section Na) of the Act.
5. By refusing on or about August 25, 1978, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargaining rep-
resentative of all the employees of Respondent in the ap-
propriate unit, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the exercise of
the rights guaranteed them in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor
9c
Appendix
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board
hereby orders that the Respondent, Cincinnati Association
for the Blind, Cincinnati, Ohio, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Truck Drivers, Chauffeurs and Helpers
Local Union No. 100, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining represen-
tative of its employees in the following appropriate unit:
All production and maintenance employees and clients,
including shipping and receiving employees, of the Re-
spondent’s workshop located at 2045 Gilbert Avenue,
Cincinnati, Ohio, excluding office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with, rest-
raining, or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with respect to
10c
Appendix
rates of pay, wages, hours, and other terms and conditions
of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at 2045 Gilbert Avenue, Cincinnati, Ohio, copies
of the attached notice marked Appendix.“ Copies of said
notice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by Respondent’s representa-
tive, shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by for 60 consecutive da: s
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBER TRUESDALE, concurring:
I agree with my colleagues, Chairman Fanning and
Member Jenkins, that the Respondent herein has unlaw-
fully refused to bergain with the union. In my opinion, the
Board has properly asserted jurisdiction over Respondent's
clients. See Lighthouse for the Blind of Houston, 244 NLRB
1144 (1979), especially footnote Fn. 13.
MEMBER Murpny, dissenting:
In the underlying representation case, I would not have
asserted jurisdiction over this Employer for the reasons set
forth in my dissenting opinion therein® and in Abilities and
Goodwill, Inc., 226 NLRB 1224 (1976), and Goodwill Indus-
In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
* 235 NLRB 1448 (1978).
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tries of Southern California, 231 NLRB 536 (1977). As more
fully discussed in that dissent I would not assert jurisdic-
tion over charitable, nonprofit, noncommercial institutions
which provide employment for the handicapped. Nor would
I find the Employer’s engagement in certain activities of a
so-called commercial nature to warrant a different result,
inasmuch as this Employer does not exist for the purpose of
maximizing profits, but for the sole purpose of maintaining
work for the handicapped. Thus, those activities of the
Employer which are asserted to be of a commercial nature
are “merely ancillary to its rehabilitative object.” Epi-Hab
Evansville, Inc., 205 NLRB 637 (1973).
As a consequence, I would not find that Respondent vio-
lated Section 8(a)(5) of the Act in refusing to bargain. Ac-
cordingly, I would grant Respondent's rather than the Gen-
eral Counsel's Motion for Summary Judgment.
APPENDIX
Notice To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL Nor refuse to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Truck Drivers, Chauffeurs
and Helpers Local Union No. 100, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and as the
exclusive representative of the employees in the bar-
gaining unit described below.
WE WILL Nor in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the above-
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named Union, as the exclusive representative of all
employees in the bargaining unit described below, with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached. embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees and
clients, including shipping and receiving em-
ployees, of the Employer's workshop located at
2045 Gilbert Avenue, Cincinnati, Ohio, excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
CINCINNATI ASSOCIATION FOR THE BLIND
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APPENDIX D
STATUTES AND REGULATIONS INVOLVED
TITLE 29—LABOR
[From the National Labor Relations Act]
Section 152. Definitions.
When used in this subchapter-
(3) The term “employee” shall include any employee, and
shall not be limited to the employees of a particular em-
ployer, unless this subchapter explicitly states otherwise,
and shall include any individual whose work has ceased as
a consequence of, or in connection with, any current labor
dispute or because of any unfair labor practice, and who has
not obtained any other regular and substantially equiva-
lent employment, but shall not include any individual em-
ployed as an agricultural laborer, or in the domestic service
of any family or person at his home, or any individual em-
ployed by his parent or spouse, or any individual having the
status of an independent contractor, or any individual em-
ployed as a supervisor, or any individual employed by an
employer subject to the Railway Labor Act, as amended
from time to time, or by any other person who is not an
employer as herein defined.
Section 158. Unfair labor practices.
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title;
(5) to refuse to bargain collectively with the presenta-
tives of his employees, subject to the provisions of section
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15%a) of this title.
From The Fair Labor Standards Act]
Section 214. Learners, apprentices, students, and hand-
icapped workers.
(e) (1) Except as otherwise provided in paragraphs (2)
and (3) of this subsection, the Secretary of Labor, to the
extent necessary in order to prevent curtailment of oppor-
tunities for employment, shall by regulation or order pro-
vide for the employment under special certificates of indi-
viduals (including individuals employed in agriculture)
whose earning or productive capacity is impaired by age or
physical or mental deficiency or injury, at wages which are
lower than the minimum wage applicable under section 206
of this title but not less than 50 per centum of such wage
and which are commensurate with those paid nonhan-
dicapped workers in industry in the vicinity for essentially
the same type, quality, and quantity of work.
(2) The Secretary, pursuant to such regulations as he
shall prescribe and upon certification of the State agency
administering or supervising the administration of voca-
tional rehabilitation services, may issue special certificates
for the employment of—
(A) handicapped workers engaged in work which is
incidental to training or evaluation programs, and
(B) multihandicapped individuals and other indi-
viduals whose earning capacity is so severely impaired
that they are unable to engage in competitive employ-
ment,
at wages which are less than those required by this subsec-
tion and which are related to the worker's productivity.
(3) (A) The Secretary may by regulation or order provide
for the employment of handicapped clients in work activi-
3d
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ties centers under special certificates at wages which are
less than the minimums applicable under section 206 of
this title or prescribed by paragraph (1) of this subsection
and which constitute equitable compensation for such
clients in work activities centers.
(B) For purposes of this section, the term “work activities
centers” shall mean centers planned and designed exclu-
sively to provide therapeutic activites for handicapped
clients whose physical or mental impairment is so severe as
to make their productive capacity inconsequential.
[From The Rehabilitation Act of 1973]
Section 706. Definitions.
For the purposes of this chapter:
(11) The term “rehabilitation facility” means a facility
which is operated for the primary purpose of providing vo-
cational rehabilition services to handicapped individuals,
and which provides singly or in combination one or more of
the following services for handicapped individuals: (A) vo-
cational rehabilitation services which shall include, under
one management, medical, psychiatric, psychological, so-
cial, and vocational services, (B) testing, fitting, or training
in the use of prosthetic and orthotic devices, (C) prevoca-
tional conditioning or recreational therapy, (D) physical
and occupational therapy, (E) speech and hearing therapy,
(F) psychiatric, psychological and social services, (G) evalu-
ation of rehabilitation potential, (H) personal and work ad-
justment, (I) vocational training with a view toward career
advancement, (in combination with other rehabilitation
services), (J) evaluation or control of specific disabilities,
(K) orientation and mobility services to the blind, and (L)
extended employment for those handicapped individuals
who cannot be readily absorbed in the competitive labor
market, except that all medical and related health services
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must be prescribed by, or under the formal supervision of,
persons licensed to prescribe or supervise the provision of
such services in the State.
Section 721. State plans.
(a) In order to be eligible to participate in programs
under this subchapter, a State shall submit to the Com-
missioner a State plan for vocational rehabilitation services
for a three-year period and, upon request of the Com-
missioner, shall make such annual revisions in the plan as
may be necessary. Each plan shall—
(16) provide for (A) periodic review and reevaluation of
the status of handicapped individuals placed in extended
employment in rehabilitation facilities (including work-
shops) to determine the feasibility of their employment, or
training for employment, in the competitive labor market,
and (B) maximum efforts to place such individuals in such
employment or training whenever it is determined to be
feasible;
(17) provide that where such State plan includes provi-
sions for the construction of rehabilitation facilities—
(A) the Federal share of the cost of construction
thereof for a fiscal year will not exceed an amount
equal to 10 per centum of the State’s allotment for such
year,
(B) the provisions of section 776 of this title shall be
applicable to such construction and such provisions
shall be deemed to apply to such construction, and
(C) there shall be compliance with regulations the
Commissioner shall prescribe designed to assure that
no State will reduce its efforts in providing other voca-
tional rehabilitation services (other than for the estab-
lishment of rehabilitation facilities) because its plan
includes such provisions for construction;
TITLE 41—PUBLIC CONTRACTS
[From The Wagner-O Day Act]
Section 48. Procurement requirements for the Govern-
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ment; non-application to prison- made prod-
ucts.
If any entity of the Government intends to procure any
commodity or service on the procurement list, that entity
shall, in accordance with rules and regulations of the
Committee, procure such commodity or service, at the price
established by the Committee, from a qualified nonprofit
agency for the blind or such an agency for other severely
handicapped if the commodity or service is available within
the period required by that Government entity; except that
this section shall not apply with respect to the procurement
of any commodity which is available for procurement from
an industry established under chapter 307 of Title 18, and
which, under section 4124 of such Title, is required to be
procured from such industry.
TITLE 42—PUBLIC HEALTH AND WELFARE
From The Social Security Act]
Section 416.
For the purposes of this subchapter—
(i) (1) Except for purposes of sections 402(d), 402(e),
402(f), 423 and 425 of this title, the term “disability” means
(A) inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or has
lasted or can be expected to last for a continuous period of
not less than 12 months, or (B) blindness; and the term
“blindness” means central visual acuity of 20/200 or less in
the better eye with the use of a correcting lens. An eye
which is accompanied by a limitation in the fields of vision
such that the widest diameter of the visual field subtends
an angle no greater than 20 degrees shall be considered for
purposes of this paragraph as having a central visual acuity
of 20/200 or less. The provisons of paragraphs (2) (A), (3),
(4), (5), and (6) of section 423(d) of this title shall be applied
6d
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by purposes of determining whether an individual is under
a disability within the meaning of the first sentence of this
paragraph in the same manner as they are applied for pur-
poses of paragraph (1) of such section. Nothing in this sub-
chapter shal! be construed as authorizing the Secretary or
any other officer or employee of the United States to inter-
fere in any way with the practice of medicine or with rela-
tionships between practitioners of medicine and their pa-
tients, or to exercise any supervision or control over the
administration or operation of any hospital.
RULES AND REGULATIONS, UNITED STATES
DEPARTMENT OF LABOR, WAGE HOUR DIVISION
29 C.F.R., Chapter V, Part 525
Section 525.2 Definitions.
(b) “Sheltered workshop” or “workshop” means a charit-
able organization or institution conducted not for profit, but
for the purpose of carrying out a recognized program of
rehabilition for handicapped workers, and/or proving such
individuals with remunerative employment or other occu-
pational rehabilitating activity of an educational or
therapeutic nature.
(d) “Handicapped worker” or “client” means an indi-
vidual whose earning capacity is impaired by age or physi-
cal or mental deficiency or injury, and who is being served
in accordance with the recognized program of a sheltered
workshop within the facilities of such agency or in or about
his home.
Sec. 525.7 Criteria for Consideration in Issuance of a
Special Certificate —(a) The following criteria may be con-
sidered by the Administrator or his authorized representa-
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tive in determining the necessity of issuing a special certifi-
cate and the conditions to be specified therein:
(2) Whether the individual handicapped workers are
being paid wages commensurate with those paid non-
handicapped workers in industry in the vicinity for essen-
tially the same type, quality, and quantity of work;
ö 4 The wages of nonhandicapped employees employed in
private industry engaged in work comparable to that per-
formed in the workshop;
Sec. 525.9 Terms and Conditions of Special
Certificates. -a A special certificate shall specify the
terms and conditions under which it is granted.
(f) The wage rates paid handicapped workers working at
time rates shall be commensurate with those paid non-
handicapped workers in the vicinity in industry maintain-
ing approved labor standards for essentially the same type,
quality, and quantity of work.
(g) (1) The wage rates paid handicapped workers work-
ing at piece rates shall not be less than prevailing piece
rates paid nonhandicapped employees in the same work in
the vicinity in industry maintaining approved labor
standards. In the absence of industry piece rates, time
studies or other tests may be used by the workshop to es-
tablish piece rates. Such time studies should be made with non-
handicapped persons, although handicapped workers may
be used in those situations where they are not handicapped
for the type of work being tested and their production is
comparable to that of nonhandicapped persons of average
ability. The base hourly rate used in making time studies
must be not less than the prevailing rate in irdustry for
work requiring similar skill.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.