PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BALTIMORE GOODWILL INDUSTRIES,
INCORPORATED,
Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,
                                                              No. 96-1632
Respondent,

BALTIMORE REGIONAL JOINT BOARD,
UNION OF NEEDLETRADES, INDUSTRIAL
AND TEXTILE EMPLOYEES, AFL-CIO,
Intervenor.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.
                                                              No. 96-1757
BALTIMORE GOODWILL INDUSTRIES,
INCORPORATED,
Respondent.

On Petition for Review and Cross-application
for Enforcement of an Order of the
National Labor Relations Board.
(5-CA-26024)

Argued: June 2, 1997

Decided: January 13, 1998

Before RUSSELL and HAMILTON, Circuit Judges, and
HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Reversed by published opinion. Judge Russell wrote the opinion, in
which Judge Hamilton and Judge Howard joined.

_________________________________________________________________

COUNSEL

ARGUED: Patrick John Stewart, VENABLE, BAETJER, HOWARD
& CIVILETTI, L.L.P., Washington, D.C., for Petitioner. John Emad
Arbab, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Respondent. ON BRIEF: John C. Hardwick, Jr., VEN-
ABLE, BAETJER, HOWARD & CIVILETTI, L.L.P., Washington,
D.C., for Petitioner. Frederick L. Feinstein, General Counsel, Linda
Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Asso-
ciate General Counsel, Peter Winkler, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent.

_________________________________________________________________

OPINION

PER CURIAM:

The Baltimore Goodwill Industries, Inc. ["Goodwill"] petitions for
review of the decision and order of the National Labor Relations
Board ["Board"] finding that Goodwill engaged in unfair labor prac-
tices in violation § 8(a)(1), (5) of the National Labor Relations Act
["the Act"], 29 U.S.C. § 158(a)(1), (5) (1994), by refusing to bargain
with the Board-certified unit. The Board filed a cross-application for
enforcement of its order. Goodwill contends that the Board's finding
that severely disabled individuals in Goodwill's custodial work ser-
vices program are "employees" within the meaning of the Act is not
supported by substantial evidence in the record and departs from prior
Board precedent. Concluding that the Board's findings are not sup-
ported by substantial evidence, we grant Goodwill's petition for
review, reverse the Board's order, and deny the Board's cross-
application for enforcement.

Goodwill is a nonprofit Maryland corporation that administers sev-
eral charitable programs, including a commercial services program.

                    2
Through Goodwill's commercial services program, some participants
receive training by working on governmental contracts awarded to
Goodwill pursuant to the Javits-Wagner-O'Day Act["JWODA"], 41
U.S.C.A. §§ 46-48c (West 1994 & Supp. 1997). 1 The Union filed a
petition seeking to represent a bargaining unit comprised of disabled
and non-disabled employees in Goodwill's commercial services pro-
gram performing custodial work pursuant to a JWODA contract
between Goodwill and the Social Security Administration. Goodwill
opposed the inclusion of the severely disabled individuals in the bar-
gaining unit on the basis that the disabled employees were not "em-
ployees" as defined by the Act. After a representation hearing, the
Board issued a decision and direction of election finding that the dis-
abled individuals were "employees" within the meaning of the Act.
Goodwill requested a review of the Board's decision, which the
Board denied. The Board held an election and because the majority
of the employees voted for the Union, the Board certified the Union
as the exclusive bargaining representative of the employees.2 Despite
the certification, Goodwill failed to recognize the bargaining unit. The
Board found that Goodwill's refusal to bargain violated § 8(a)(1), (5)
of the Act. Goodwill petitions this court to review and set aside the
Board's order, and the Board cross-petitions for enforcement of its
order.

The Board applies a case by case analysis in determining whether
individuals are "employees" as defined by the Act. See Davis Mem'l
Goodwill Indus. v. NLRB, 108 F.3d 406, 410 (D.C. Cir. 1997) (recog-
_________________________________________________________________
1 For Goodwill to qualify for a contract under the JWODA, seventy-
five percent of the workforce performing the contract services must be
severely disabled. A severely disabled individual is a person other than
a blind person who has a severe physical or mental impairment which so
limits the person's functional capabilities that the individual is unable to
engage in normal competitive employment over an extended period of
time. See 41 U.S.C. § 48b(2).

2 Specifically, the Board certified "all full-time and regular part-time
janitorial and custodian employees, including cleaners, waxers, buffers
and strippers employed by the Employer at the Woodlawn Social Secur-
ity Complex, operations and annex buildings, located in Baltimore,
Maryland, but excluding all other employees, guards and supervisors as
defined in the Act."

                    3
nizing that case by case approach is applied to determination of
employee status because "in the rehabilitation setting the employer
may . . . safeguard employee interests more effectively than a union")
(citing Goodwill Indus. of S. Cal., 231 N.L.R.B. 536, 537-38 (1977)).
The Board determines whether the characteristics of a program are
typical of industrial settings, indicating that the individuals are "em-
ployees" under the Act, or whether the program characteristics are
primarily rehabilitative and atypical compared with private industrial
settings, indicating that the individuals are not"employees" as defined
by the Act.3 See Davis, 108 F.3d at 410 (quoting Goodwill Indus. of
Denver, 304 N.L.R.B. 764, 765 (1991)).

This court accords due deference to the factual findings of the
Board, and will uphold the Board's findings if they are supported by
substantial evidence in the record as a whole, see Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951); Flack v. Cohen, 413 F.2d
278, 279 (4th Cir. 1969). The Board in this case found that the work-
ing conditions of Goodwill's severely disabled workers at the
Woodlawn Social Security Complex ["facility"] were typically indus-
trial and thus that the disabled workers were "employees" under the
Act. In making this determination, the Board evaluated the following
five aspects of the employment relationship: discipline, competitive
placement, productivity standards, counseling, and other terms and
conditions of employment. Specifically, the Board found Goodwill
disciplined the disabled employees and non-disabled employees
within the bargaining unit similarly and that the characteristics of the
bargaining unit's workforce reflect long-term employment for
employees, without an emphasis on competitive placement. Further,
the Board found that Goodwill subjected disabled employees to pro-
ductivity standards, provided only limited counseling, and offered
working conditions similar to those found in private industrial set-
tings.
_________________________________________________________________
3 An employee under the Act is a worker not expressly exempted. See
29 U.S.C. § 152(3) (1994). Although there is no statutory exemption that
specifically applies to disabled workers, the Board's case law provides
that an individual whose working conditions are"primarily rehabilita-
tive" does not qualify as an "employee" under the Act. See Davis, 108
F.3d at 409 n.3 (citing Goodwill Indus. of Denver, 304 N.L.R.B. 764,
765 (1991)).

                    4
We find that substantial evidence in the record as a whole does not
support the Board's finding that the severely disabled workers in the
bargaining unit were "employees" as defined by the Act. See Davis,
108 F.3d at 413. First, in concluding that Goodwill disciplined the
disabled employees and non-disabled employees within the bargain-
ing unit similarly, the Board found that Goodwill uses productivity
standards to discipline employees, and relied on the testimony of two
witnesses who claimed that they were disciplined without counseling.
See id. at 411. We determine, however, that substantial evidence in
the record establishes that Goodwill disciplined its disabled employ-
ees in a rehabilitative manner, different from the way it disciplined its
non-disabled employees. See id. The record reflects that Goodwill
uses productivity standards to assess the rehabilitative needs of the
disabled workers in the program, and when Goodwill transfers a
worker to a rehabilitation facility, Goodwill is attempting to meet the
employee's rehabilitative needs and is not disciplining the employee.
See id. at 411-12. Further, the record reveals that Goodwill contra-
dicted the witnesses' testimony that they were disciplined without
counseling with evidence of frequent meetings between the witnesses
and the counselors.

Next, the Board concluded that Goodwill operates as a permanent
employer because seventy percent of the individuals in the bargaining
unit worked at Goodwill for more than two years and that Goodwill
does not accord competitive placements to employees. See id. at 410-
11. We find that the mere fact that a number of severely disabled
employees participate in the program for several years does not
negate the program's rehabilitative character. See id. The record
reveals that, despite the number of employees who have worked at the
facility for two years or more, a significant number of employees
work for a short time at the facility and then are placed in the compet-
itive job market, evidencing the rehabilitative nature of the program.

The Board found that the productivity standards applied to disabled
employees were characteristic of a typical industrial setting. See id.
at 411-12. Specifically, the Board based its conclusion on the fact that
Goodwill does not employ disabled employees at the facility until
they can perform sixty percent of the work that a non-disabled
employee can perform. The Board also relied on evidence that Good-
will transfers disabled employees who cannot reach their production

                     5
goal and on the fact that there is no trainer at the facility. The record,
however, reveals that Goodwill's productivity standards are consistent
with a rehabilitative work environment: Goodwill implements an ini-
tial minimum productivity standard for entry into the program as a
means of measuring the disabled employee's progress toward a com-
petitive work rate; Goodwill transfers and does not discharge employ-
ees who fall below the minimum productivity standard; and, while
Goodwill does not provide trainers at the facility to teach custodial
skills, Goodwill offers training emphasizing other areas, such as time
management and interpersonal relations. See id.

Next, the Board concluded that the counseling offered by Goodwill
was not evidence of a rehabilitative work setting. The Board based its
determination on the fact that the counseling is not mandatory and
that the record did not show whether the counseling was a significant
part of the disabled employee's work day. We find, however that sub-
stantial evidence in the record reveals that the counseling offered by
Goodwill is indicative of a rehabilitative work environment. See id.
at 412. Goodwill employs two full time counselors who are available
at the facility and who spend eighty percent of their time counseling
workers and actively monitoring the progress of the disabled individ-
uals.

Last, the Board concluded that Goodwill offers many of the same
terms and conditions of employment to disabled and non-disabled
workers. For example, the Board found that the disabled workers
work a full work week, punch a time clock, are eligible for health
insurance, and receive sick leave pay. However, we determine that the
Board's finding does not undermine the significant differences in
treatment that evidence the rehabilitative aspects of Goodwill's pro-
gram. See id. at 410.

We conclude that substantial evidence in the record reveals that the
characteristics of Goodwill's commercial services program are the
same as those that the Board "previously used to declare handicapped
workers to be in a primarily rehabilitative relationship" in Goodwill
Indus. of Denver, 304 N.L.R.B. 764, 765 (1991), and Goodwill Indus.
of Tidewaters, 304 N.L.R.B. 767, 768-69 (1991). Davis, 108 F.3d at
413 (1991) (finding primarily rehabilitative relationship where Good-
will disciplined disabled workers differently, competitively placed

                     6
disabled workers, set minimum productivity standards, offered coun-
seling and training). We find that the Board did not adequately distin-
guish this case from its precedent, and we decline to remand the case
to the Board for further findings.

In sum, we determine that the Board incorrectly granted summary
judgment based upon its finding that Goodwill's refusal to bargain
with the certified unit constituted an unfair labor practice because
substantial evidence establishes that the severely disabled employees
in the unit were not employees under the Act, and therefore, the
Board erred in certifying the Union as the bargaining unit for the
employees. Accordingly, we grant Goodwill's petition for review,
reverse the Board's order, and deny the Board's cross-petition for
enforcement.

REVERSED

                    7
