“SECRETARY OF LABOR,Complainant,v.CHICAGO ZOOLOGICAL SOCIETY,Respondent.OSHRC Docket No. 79-2304_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The Chicago Zoological Society (\”the Society\”) operates the BrookfieldZoo located in the Forest Preserve District of Cook County, Illinois(\”the District\”). The Society is a not-for-profit corporation classifiedas an exempt organization for purposes of federal taxation under section501(c)(3) of the Internal Revenue Code, 26 U.S.C. ? 501(c)(3). The issuebefore the Commission is whether, as Administrative Law Judge Sidney J.Goldstein held, the Society is an \”employer\” subject to the Act. TheSociety contends that it is a \”political subdivision\” of Illinois and istherefore excluded by section 3(5) from the requirements of the Act.[[1]]I.To determine whether the Society is a political subdivision, it isnecessary to understand how the Society was created, the source of itsoperating authority, and its relationship to the Cook County governingauthorities. The Society was created following the Conveyance in 1920 bythe McCormick family of a large tract of land to the Forest PreserveDistrict, a municipal corporation created by popular vote by thecitizens of Cook County. The deed provided that the property was to beused in perpetuity as a \”zoological park\” by the District. The Presidentof the Cook County Board of Commissioners, who was also the President ofthe District Board of Commissioners, created two committees, onecomposed of fellow Commissioners and the other of prominent citizens, tosurvey the way in which zoological institutions were administered andcontrolled. The two committees subsequently applied to the state for acharter as \”The Chicago Zoological Society.\” The charter, which wasgranted in 1921, described the purpose of the Society as the \”founding,maintenance and control of zoological parks.\” Management was vested in a25-member Board of Trustees. According to the Society’s by-laws, thetrustees choose a president, other officers, and an executive committee;they also elect the 240-member Governing Board, which is charged withchoosing 25 of its members to be trustees.[[2]]In 1923 the Illinois legislature gave the District and certain otherforest preserve districts the authority, among other things, to contract\”with the directors or trustees of any zoological society on such termsand conditions as may to such corporate authorities seem best, relativeto the erection, operation and maintenance of a zoological park and thecollection and display of such animals within such forest preserve . . ..\” In the same act, the Illinois legislature authorized the forestpreserve districts to levy a property tax for the purpose ofconstructing and operating zoological parks.Under the authority granted to the District by the Illinois legislature,the District entered into an agreement with the Society in 1926.[[3]]This contract sets apart the tract of land conveyed to the District bythe McCormick family for a zoological park and gives to the Society \”theentire control and management of said park.\” The Society is also giventhe authority to employ, direct and remove employees of the zoo and tofix their salaries. Among other things, the Society is required tosubmit annually to the District a detailed budget setting forth thecosts of the items in connection with which the Society desires to spendmoney during the succeeding year, and the District must levy and collectannually such tax as is needed for the park. Other sections of thecontract prohibit the Society from mortgaging or encumbering any zoobuilding, or selling or removing zoo buildings or cages without thewritten consent of the District. In addition, the contract specifiesthe amount for admission fees and requires approval by the District ofall zoo concessions and their rates. The contract also provides that theSociety’s books shall be audited annually by the District and open toinspection at all times by the District. The Society must seek Districtapproval for the cutting down of live trees, and permit the District tohave access to zoo property. Moreover, pursuant to the agreement, \”[all]property purchased by the Society with funds provided by the saidDistrict shall be the property of said District . . . .\”II.With these facts in mind we turn to the question of whether the Societyis a political subdivision and exempt from the requirements of the Act.The Act does not define \”political subdivision.\” However, there isconsiderable case law interpreting a provision of the National LaborRelations Act, 29 U.S.C. ? 151 et seq. (\”NLRA\”), similar to section3(5).[[4]] Under the NLRA, a \”political subdivision\” is an entity either(1) created directly by the state, so as to constitute a department oradministrative arm of the government, or (2) administered by individualswho are responsible to public officials or to the general electorate.See NLRB v. Natural Gas Utility District of Hawkins County, Tennessee,402 U.S. 600, 603 (1971) (\”Hawkins\”). The Commission has previouslyrecognized that the NLRA test is relevant in determining whether anorganization is a \”political subdivision\” within the meaning of section3(5) of the Act. University of Pittsburgh, 80 OSAHRC 79\/E4, 7 BNA OSHC2211, 1980 CCH OSHD (P) 24,240 (No. 77-1290, 1980). Moreover, theSecretary has promulgated a regulation at 29 C.F.R. ? 1975.5(b) which isessentially identical to the NLRA test. The NLRA case law is thereforeapposite to the determination of whether the Society is a \”politicalsubdivision\” under the OSH Act.As described above, the Society was not created directly by the State ofIllinois and is clearly not a \”political subdivision\” within the firstpart of the test. The question is therefore whether the Society’srelationship to the Forest Preserve District, which is a governmentalunit, is such that the Society can be said to be responsible to eitherthe District or the general electorate.Case law under the NLRA establishes that many factors are relevant to adetermination of whether the individuals who administer an organizationare responsible to public officials or the general electorate. Two keyfactors evidencing the requisite degree of responsibility are dependenceby the organization on public funds and approval of the organization’sbudget by a public agency. Jefferson County Community Center v. NLRB,732 F.2d 122 (10th Cir. 1984); Museum Associates v. NLRB, 688 F.2d 1278(9th Cir. 1982); Rosenberg Library Association, 269 N.L.R.B. No. 197,116 LRRM 1051 (1984); Jervis Public Library Association, 262 N.L.R.B.No. 145, 110 LRRM 1453 (1982); Northampton Center for Children &Families, Inc., 257 N.L.R.B. 114, 108 LRRM 1008 (1981); New YorkInstitute for the Blind, 254 N.L.R.B. 85, 106 LRRM 1113 (1981). Otherrelevant factors are whether the organization possesses certain powersassociated with public entities, such as the power of eminent domain orthe power to issue tax-free bonds, Hawkins, 402 U.S. at 608; LewistonOrchards Irrigation District, 186 N.L.R.B. No. 121, 75 LRRM 1430(1970)); and whether the organization’s employees have the same payscale or other employment rights and benefits as public employees.Denver Post of the National Society of the Volunteers of America v.NLRB, 732 F.2d 769, 774 (10th Cir. 1984); NLRB v. Howard Johnson Co.,317 F.2d 1 (3d Cir. 1963). Finally, if the power to appoint or removethe individuals who administer the organization resides in publicofficials, that is strong evidence that the organization is responsibleto those officials. Hawkins, 402 U.S. at 607-08; NLRB v. Highview, Inc.,590 F.2d 174, 177 (5th Cir. 1979); Founders Society, Detroit Instituteof Arts, 271 N.L.R.B. No. 41, 116 LRRM 1376 (1984).Applying these factors, we conclude that the Society is a politicalsubdivision under the second part of the test. Although the Society is aseparate entity, the record establishes that, throughout its history,the Society has been closely linked to, and its basic operations havebeen either directly or indirectly controlled by the District. As Dr.Rabb, the zoo director testified, the Society acts as an agent for theDistrict, and cannot operate the zoo on its own. Although the contractbetween the Society and the District gives the Society management of thezoo, fundamental control over the existence and operation of the zooresides in the District. Indeed, the District has access to the groundsand the Society’s books at all times and retains ownership of funds,property, animals, facilities and zoo premises.It is particularly significant that the Society is primarily dependenton the District with respect to its financial affairs. The recordestablishes that 85-90% of the Society’s operating capital is madeavailable through either State statute or agreement with the District.In recent years, the Society has received approximately 60% of itsincome for operating expenses from the District’s tax levy. In pastyears when the Society was unable to meet its expenses, the Districtimposed an additional tax levy to offset the accumulated deficits. TheSociety also receives funds for capital improvements through bonds soldby the District. Further, the District has control over many of thezoo’s other sources of revenue, since the District must approve all feesand charges for admission, parking, amusements, refreshments and otherconcessions. Moreover, funds received by the Society through a grantfrom the Illinois Department of Conservation and the State CapitalDevelopment Board were obtained because of the Society’s relationship tothe District.In addition to its financial dependence on the District, the Society isalso answerable to the District for its expenditures. According to theevidence, the Society is required to obtain District approval for suchwide-ranging activities as removal of a tree and entering into aconstruction contract.[[5]] Its books are also subject to an annualaudit by the District. Even more importantly, however, the Society isrequired to submit to the District a line-item budget \”setting out theparticular purposes for and an estimate, properly itemized, of theactual costs, . . . [for] which the Society desires to expend moneyduring the succeeding year. . . .\” The detailed nature of the Society’sbudget is indicated by the inclusion in the 1983 budget of $5,000 itemsfor a \”Sloth Bear Maternity Den\” and \”Giraffe\/Pachyderm Heaters\” out ofa total budget of 12 million dollars. The budget also includes aseparate line for each kind of employee position, along with the annualcost for it. E.g., \”computer operator . . . 1 . . . 8.55 [dollars perhour] . . . 15,561.00 [dollars per year].\” Although its contract withthe District permits the Society to exercise some discretion in theexpenditure of funds from sources other than the District, these fundsare considered in the budgeting process; are included in the annualaudit as are expenditures from tax revenues; by practice have withlimited exception been commingled for operation purposes with moniesderived from the District; [[6]] and in the case of dissolution of theSociety, are ultimately the property of the District. It is thereforeapparent that the District exercises significant control over alloperations of the Society through the budgeting process and itsindependent approval of certain zoo activities.The Society’s officers and trustees are not directly appointed by orsubject to direct removal by public officials. However, consistent withseveral cases decided under the NLRA, we conclude that an organizationproperly is considered a political subdivision, despite suchindependence of its governing body, if its finances and its basicoperations are largely under the control of governmental officials orthe electorate. See Rosenberg Library Association, Northampton Centerfor Children & Families, and New York Institute for the Blind. TheSociety’s employees also are not public employees for purposes of theirwages and benefits. However, in light of the District’s control over theSociety’s finances, including its authority to approve or deny budgetedamounts for wages and benefits, we consider the non-governmental statusof the Society’s employees to be relatively unimportant.Further, although the Society is not a department or administrative armof a governmental body, its purpose and some of its basic operations arecharacteristic of a political subdivision. Like many governmentagencies, the Society exists to fulfill a public purpose: the operationof a zoological park. The Society also has been given a certain publicpower appropriate to its functions; pursuant to an act passed by theIllinois legislature, the District granted police powers to the zoo’ssecurity force. The zoo also has its own building code and its vehicleshave municipal license plates. The Secretary points out that the Societylacks certain other governmental powers, such as the power of eminentdomain and the power to issue revenue bonds. However, legislatures donot typically endow government agencies with all possible powers butdelegate only those powers necessary for agencies to fulfill theirfunctions. Moreover, the District, which as a practical matter controlsthe fiscal policy of the Society, does issue bonds. Therefore, we do notfind it persuasive that the Society is unable to issue revenue bonds, orexercise the power of eminent domain.On balance, we conclude that the Society is a \”political subdivision\”within the meaning of section 3(5) of the Act.[[7]] The judge’s decisionis reversed and the citation is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 21 1986 BUCKLEY, Chairman, dissenting:In my opinion, the Chicago Zoological Society does not meet the criteriaestablished by case law to be considered a \”political subdivision\” ofthe State of Illinois. I would therefore affirm the judge’s decisionfinding that the Society is an \”employer\” within the meaning of section3(5) of the Occupational Safety and Health Act of 1970 (\”the OSH Act\”).The Chicago Zoo was created under the auspices of the Cook County Boardof Commissioners. Following the McCormick family’s offer of land to theCounty to be used as a zoo, the president of the Cook County Board ofCommissioners, Peter Reinberg, formed committees to determine how thezoo should be established and organized. It was ultimately decided thatthe zoo should be run by a private organization rather than directly bythe government. The reason for this decision was explained by Mr. Reinberg:Above all, this project must be supervised by a non-political board ofmost suitable members, and an executive staff of utmost expertness.Politics, which though many of its phases are admirable, has othersthat, when its functions are misused, are very undesirable, must not beallowed to dictate in this.Chicago Zoological Society Year Book (1927), at p. 52. Thus, the impetusfor the Society’s creation as a private, nonprofit corporation was toavoid having the zoo operated by Cook County or an agency of the County.The Society has, since its inception, operated the zoo under contract tothe Forest Preserve District of Cook County, but has always maintainedits identity as an organization distinct from the District.The issue in this case is whether the Society is a \”politicalsubdivision\” of Illinois within the meaning of section 3(5) of the OSHAct. The Act’s legislative history contains no explicit explanation forthe exclusion of States and their political subdivisions from the classof employers subject to the Act, nor does it suggest how \”politicalsubdivision\” should be defined. However, as the lead opinion points out,the National Labor Relations Act (\”NLRA\”) also contains a definition of\”employer\” that excludes states and their political subdivisions. Thatprovision of the NLRA has its basis in Tenth Amendment considerations ofstate sovereignty and the Eleventh Amendment grant of judicial immunityto the states. Crestline Memorial Hospital Association v. NLRB, 668 F.2d243, 245 n. 1 (6th Cir. 1982). Because Congress included similardefinitions of \”employer\” in both the NLRA and the OSH Act, it isreasonable to infer that Congress had the same considerations in mind inexcluding states and their political subdivisions from the operation ofboth statutes. Hence, it is appropriate to apply the definition of\”political subdivision\” under the OSH Act that has been developedthrough the case law under the NLRA.As the lead opinion points out, a two-pronged test has been developed todetermine whether an organization is a \”political subdivision\” under theNLRA. Under the first prong of the test, an entity is a politicalsubdivision if it is created directly by the state so as to constitute adepartment or administrative arm of the government. The lead opinionconcludes that the Society does not meet this criterion, and I agree. Asnoted above, the Society was organized as a private corporation for theexpress purpose of avoiding the zoo’s management by a government agency.Moreover, an organization is a political subdivision under this prong ofthe test only if it is not organizationally distinct from a governmentalunit or is administered by public officials, conditions clearly not metby the Society. See Jervis Public Library Association, 262 N.L.R.B. No.145, 110 LRRM 1453 (1982) (organization had been member of University ofState of New York for 85 years); Northampton Center for Children andFamilies, 257 N.L.R.B. No. 114, 108 LRRM 1008 (1981)(organization waspart of Massachusetts Department of Mental Health when created; it laterbecame a private nonprofit corporation in order to qualify for federalfunds but continued to operate as an arm of the state); New YorkInstitute for the Blind, 254 N.L.R.B. No. 85, 106 LRRM 1113(1981)(organization was created by act of the New York Legislature andoperated under supervision of New York’s Board of Regents); Camden-ClarkMemorial Hospital, 221 N.L.R.B. No. 160, 91 LRRM 1024(1975)(organization was created by city ordinance and had no separatestatus as a legal entity apart from the city).An organization is exempt under the second part of the NLRA test if itis administered by individuals who are responsible to public officialsor to the general electorate. The critical factor in applying this testis whether the individuals who administer the organization are appointedor are subject to removal by public officials. In NLRB v. Natural GasUtility District of Hawkins County, Tennessee, 402 U.S. 600 (1971), theSupreme Court found the organization was responsible to public officialsbecause the commissioners were appointed by an elected county judge andwere subject to removal under Tennessee law providing for the removal ofpublic officials. See also Rosenberg Library Association, 269 N.L.R.B.No. 197, 116 LRRM 1051 (1984) (library that was headquarters for countylibrary system and which had the same board of directors and librarianas county library system found to be a political subdivision); FounderSociety, Detroit Institute of Arts, 271 N.L.R.B. No. 41, 116 LRRM 1376(1984) (nonprofit corporation found to be a political subdivision whenexecutive director was appointed with and served at the pleasure of theMayor); Jefferson County Community Center v. NLRB, 732 F.2d 122 (10thCir. 1984) (nonprofit corporation which provided education andvocational services under contract with state is not politicalsubdivision; 7 of 15 board members are appointed by public agencies, butmajority is neither appointed by nor subject to removal by publicagencies); Crestline Memorial Hospital Association v. NLRB, 668 F.2d at245 (non-profit corporation that operates hospital under lease from cityis not political subdivision when public officials \”have no right tointerfere with the management of the facility\”); Truman Medical Centerv. NLRB, 641 F.2d 570 (8th Cir. 1981) (nonprofit corporation thatcontracted with governmental units for services such as care ofindigents was not a political subdivision when 31 of 49 members of theboard of directors were not appointed by or subject to removal by publicofficials); Museum Associates v. NLRB, 688 F.2d 1278 (9th Cir. 1982)(nonprofit corporation that operates Los Angeles County Museum of Artunder contract with government is not a political subdivision); NLRB v.Highview, Inc., 590 F.2d 174 (5th Cir. 1979) (nonprofit corporationproviding nursing care to the elderly on county-owned facilities is notpolitical subdivision; organization was incorporated by privateindividuals and the county cannot influence the selection of theorganization’s directors or affect their decisions); University ofPittsburgh, 80 OSAHRC 79\/E4, 7 BNA OSHC 2211, 1980 CCH OSHD (p) 24,240(No. 77-1290, 1980) (state-related university not a politicalsub-division: two-thirds of university’s board of trustees are notstate-appointed or controlled).In this case, public officials neither select nor have the power ofremoval over a majority of the persons who administer the Society. Noneof the Society’s 240-member Governing Board, and only one member of theSociety’s 25-member Board of Trustees. is a public official. TheSociety’s officers are chosen by its Board of Trustees and are notsubject to removal by public officials, nor can they be removed under astate law governing removal of public officials. The officers manage thezoo free of day-to-day oversight or control by public officials. Theindependence of the persons who administer, the Society from politicalcontrol strongly mitigates against finding it to be a politicalsubdivision within the second prong of the NLRA test.Certain factors tend to suggest that the Society is a politicalsubdivision. The authority to operate its own police force and to usemunicipal license plates for its vehicles indicates that the Society isto some extent an arm of the government. Moreover, although theSociety’s officers manage the zoo free of day-to-day oversight by theDistrict, the District nevertheless exerts considerable influence overthe Society’s operations by providing funds for the zoo’s operations andby overseeing and approving the Society’s budget. However, strict fiscalaccountability to a public agency does not convert an otherwise privateorganization into a political subdivision. A government’s decision toprovide a public service through grant or contract with an organizationin the private sector does not alter the fundamental nature of therecipient private organization. Jefferson County Community Center v.NLRB; Crestline Memorial Hospital Association v. NLRB; Truman MedicalCenter v. NLRB; Museum Associates v. NLRB; NLRB v. Highview, Inc.This is a close case. On balance, however, I am persuaded that theSociety is not a political subdivision. The Society was created for theexpress purpose of removing the zoo’s operations from the politicalarena. There is no indication that the State of Illinois ever decided tooverride that original purpose and place the zoo’s operations undergovernment control. I would therefore affirm the judge’s decision.————————————————————————SECRETARY OF LABOR,CompIainant,vCHICAGO ZOOLOGICAL SOCIETY,a Corporation,Respondent.OSHRC DOCKET NO. 79-2304_DECISION_This is an action by the Secretary of Labor to affirm a Citation issuedby the Occupational Safety and Health Administration to the ChicagoZoological Society for the alleged violation of two regulationspromulgated under the Occupational Safety and Health Act of 1970. TheCitation and subsequent Complaint charge that the Zoo failed to guard afloor hole into which persons could accidentally walk and failed toprotect a worker on a platform against falling.The matter arose after a Compliance Officer for the Administrationinspected the Society’s Brookfield Zoo, concluded that it was inviolation of the regulations, and recommended that the Citation beissued with a penalty of $1,000 for each offense. The Zoo disagreed withthe Administration and filed a Notice of Contest to the Citation and anAnswer to the Complaint.Proceedings before the Review Commission were then delayed pending thedisposition of ancillary issues by the U.S. District Court. The partiesnow agree that the sole issue remaining is whether or not the ChicagoZoological Society is a political subdivision of the State of Illinois.If it is, the Administration has no jurisdiction in this matter, and theCitation is to be vacated. On the other hand, if the Society is not apolitical subdivision of the State, the Citation and attendant penaltyare to be affirmed.Documents in the record disclose that in 1920 Edith RockefellerMcCormick and her husband conveyed to the Forest Preserve District ofCook County, Illinois a tract of land on condition that the property beused as a zoological garden. In the following year a citizen grouporganized the Chicago Zoological Society and obtained its not-for-profitcharter from the State of Illinois. As indicated in the certificate, thepurpose of the corporation was:For the founding, maintenance and control of Zoological Parks, Gardens,or other collections, for the promotion of Zoology and kindred subjectsand for the instruction and recreation of the people. To collect, holdand expend funds for Zoological research and publication, for theprotection of Wild Animal life and for kindred purposes.The corporate charter provides that the management and direction of thesociety is vested in a Board of 25 Directors or Trustees, including thePresident and three Commissioners of the Forest Preserve District ofCook County. The four classes of members are designated as Governing,Honorary, Life, and Annual, but Governing members only have the right tovote for or be eligible to the Office of Trustee. The ExecutiveCommittee has full control of the affairs of the Society under thegeneral direction of the Board of Trustees.Two years after the corporate not-for-profit charter was issued, in1923, the Illinois legislature authorized the Forest Preserve Districtto contract with the directors or trustees of any zoological society onsuch terms and conditions as may to such corporate authorities seembest, relative to the erection, operation, and maintenance of azoological park.Thereafter the Forest Preserve District entered into an agreement withthe Chicago Zoological Society whereby on the specified land and at theexpense of the District the Society was to establish, maintain, andoperate the zoological park and to select and provide all animals,equipment, materials, and supplies. Under the contract, the Societyhas the entire control and management of the park, including personnel.The District levys and collects annually a tax as needed for zoologicalpurposes. Each year the Society submits a budget to the District, butthe Society is under no obligation to obtain the approval of theDistrict, for expenditures of monies derived from sources other than theDistrict.At the hearing the testimony was to the effect that the Respondent’sBoard of Trustees selects the Director of the Zoo who is responsible forthe overall administration of its operations. He considers the Societyto be the District’s agent to carry on zoo purposes. The District ownsall the zoo property, but the Society manages zoo affairs.Society funds are obtained from tax receipts, sales of food andmerchandise, admission and parking fees, contributions, memberships, andgifts. It receives additional funds from Federal and State grants,generally for specific projects, which activities do not require priorapproval of the District. For the years 1978 through 1981 tax revenuewas $15,903,668. Gross receipts from admissions, merchandise sales andmiscellaneous sources were $18,636,055.Some animals and foods cross State lines. The Society has no taxing oreminent domain powers and cannot sell Its own bonds. It engages in nolobbying activities but may provide information to legislators. Zooemployees are not under the jurisdiction of any Cook County subdivisionor covered by civil service regulations. The Society is a member oflocal municipal organization groups.By special statute the Zoo is authorized a police department which isalso commissioned by the villages of Brookfield and Riverside. Its staffgenerally confines activities to zoo property only. They carry arms andhave arrest authority. Members of the police department receive theirtraining through an agency available to municipalities and otherpolitical subdivisions. Vehicles are equipped with M license plates.The Society is exempt from federal income tax. For the year 1982, itfiled Form 990, Return of Organization Exempt from Income Tax, with theInternal Revenue Service. This document indicated a variety of reasonsfor claiming exemption from federal income tax. The Society’s auditorschecked on the form that it was exempt from income tax because it was anorganization which normally receives a substantial part of its supportfrom a governmental unit or from the general public.On the basis of the foregoing record, the Respondent asserts that it isa political subdivision of the State of Illinois and therefore exempt byvirtue of Section 3(5) of the Act which provides:The term \”employer\” means a person engaged in a business affectingcommerce who has employees, but does not include the United States orany State or political subdivision of a State.Although the term \”political subdivision\” is not defined in the statute,the regulation found at 29 CFR 1975.5 details a number of elements to beconsidered in the application of this section of the law.First, the regulation provides the initial consideration as follows:(b) Tests. Any entity which has been (1) created directly by the State,so as to constitute a department or administrative arm of thegovernment, or (2) administered by individuals who are controlled bypublic officials and responsible to such officials or to the generalelectorate, shall be deemed to be a \”State or political subdivisionthereof\” under section 3(5) of the Act and, therefore, not within thedefinition of employer, and, consequently, not subject to the Act as anemployer.Second, the regulation suggests factors for meeting the tests. In thisconnection, a number of questions are advanced, and the applicable onesinclude:(a) Are the individuals who administer the entity appointed by a publicofficial or elected by the general electorate?(b) Who may dismiss such individuals and under what procedures?(c) Are the powers of the entity usually characteristic of a governmentrather than a private instrumentality, like the power of eminent domain?(d) Are the entity’s bonds, if any, tax exempt?(e) Are the entity’s employees regarded like employees of other Stateand political subdivisions?(f) How do fringe benefits, rights, obligations, and restrictions of theentity’s employees compare to those of the employees of other State andlocal departments and agencies?Third, another subsection of the regulation includes examples of thetypes of entities:(a) Normally regarded as not being employers under Section 3(5) of the Act;(b) Probably excluded as employers under Section 3(5) of the Act; and(c) Normally not regarded as political subdivisions of the State.In the application of the facts in this case to the three broadmeasurements to be considered in claims for exemption under Section 3(5)of the Act, I find,First, there is no evidence in the record to indicate that the ChicagoZoological Society was created directly by the State so as to constitutea department or administrative arm of the government. The recorddiscloses that the Society applied for and received from the State ofIllinois a not-for-profit charter as a private corporation. Indeed,about two years elapsed between the time the Respondent received itscorporate charter and the date it entered into a relationship with theForest Preserve District of Cook County.Nor is the Society administered by individuals who are controlled bypublic officials and responsible to such officials or to the generalelectorate. By virtue of its charter, the Society is controlled by itsBoard of Directors or Board of Trustees consisting of twenty-fivemembers. Inasmuch as only the President of the District’s Board ofCommissioners and three other Commissioners serve as Governing membersof the Society, these four public officials cannot control a twenty-fivemember Board of Trustees. None of the Society’s Trustees is elected bythe voters of the County or is responsible to the general electorate. Finally, the contract between the District and the Society provides thatthe Society is in complete control of its activities, including personnel.Since the Respondent is not a department or administrative arm of theState; and since it is not administered by individuals controlled bypublic officials and responsible to such officials or to the generalelectorate, the Society fails to meet the regulation tests authorizingits exemption from the statute.Second, the record is clear that the administrator of the Society is notappointed by a public official or selected by the general electorate. Infact the Director of the Society is appointed by the Board of Trustees,21 of 25 of whom are private citizens. The Director is subject todismissal by the appointing authority, not by any public officials. Alsothe powers of the Society are characteristic of a privateinstrumentality rather than a government agency in that it has no powerof eminent domain or authority to issue tax-exempt bonds. Again, itsstaff is not regarded like employees of other State and politicalsubdivisions. They do not enjoy the fringe benefits and rights or havethe obligations and restrictions of public employees; and they are notunder the jurisdiction of the Cook County civil service system. Thus,the Respondent fails to meet any of the important considerationsoutlined in the regulation to qualify for exemption under the statute.Third, as previously indicated, the regulation provides examples ofentities (a) normally regarded as not being employers under Section 3(5)of the Act; (b) probably excluded as employers under that section of theAct; and (c) normally not regarded as a State or political subdivisionof a State.Group (a) includes entities such as State Department of Labor andIndustry, law enforcement agencies, judicial bodies, and publiclibraries. The (b) class encompasses employers such as harbor districts,port authorities and State and County hospitals. Category (c) refers tobusinesses which, under agreement, perform certain functions for the State.In the comparison of the facts in this case to the three subdivisions,it is apparent the Respondent most closely resembles an entity whichperforms certain functions for the County. The Respondent’s contractualrelations with an exempt political subdivision does not transform itfrom a private not-for-profit corporation into a political subdivisionof the State.Indeed, the Respondent itself considered itself as a private corporationrather than a governmental entity. When it filed its Form 990, InternalRevenue Service, Return of Organization Exempt from Income Tax, theSociety listed as its reason for exemption as \”an organization thatnormally receives a substantial part of its support from a governmentalunit or from the general public.\” While true, the Society could have,but did not indicate on the form that it was \”A Federal, State, or localgovernment or governmental unit.\”In its brief the Respondent reviewed a number of cases in which anemploying unit was held to be a political subdivision of a State, butnone is similar to the case at bar. Thus, in Prairie Home Cemetery, 266NLRB 107, the members of the Board were appointed by the mayor andconfirmed by the city’s common council, and employees participated inthe Wisconsin Retirement Fund; in Crilly v. South Eastern PennsylvaniaTransportation Authority, 529 F 2d 1355, the entity was created by thelegislature and was governed by a board of directors appointed by publicofficials; in Popkin v. N. Y. State Health and Mental Hygiene FacilitiesImprovement Corp., 547 F 2d 18, the unit was created directly by theState, and its directors were the Commissioner of Health, Commissionerof Mental Hygiene, and three persons appointed by the Governor with theadvice and consent of the Senate.Further, in Commissioner of Internal Revenue v. Shamberg’s Estate, 144 F2d 998, the question was whether interest received by Shamberg on bondsof the Port of New York and New Jersey was subject to income tax. Thecourt held that the body politic was owned by two States, operating withtwelve Commissioners, six from each State, with veto power in theGovernor. In Abad v.Puerto Rico Communications Authority, 88 F. Supp.34, the entity was controlled by public officials, and the insulartelegraph system always was owned and operated as an integral part ofthe Government.Thus, in each of these decisions, the ruling members of the employingunit were either appointed by, or reported to, public officials. Thosecases are therefore not determinative of the issues in the presentcontroversy.Other cases advanced by the Respondent have no relationship to thequestion before the Commission. For example, Hybud Equipment Corp. v.City of Akron, 654 F 2d 1187, merely upheld the authority of the localgovernment to monopolize and control garbage collection; and inSecretary of Labor v Usery, 426 U. S. 833, the Court did not permitCongress to regulate directly the activities of States as publicemployers with respect to minimum wage and maximum hour requirements.In summary, none of the cases urged by the Respondent supports itsposition that it is a political subdivision of a State.In the one matter before the Review Commission involving Section 3(5) ofthe Act – Secretary of Labor v. University of Pittsburgh, OSHRC DocketNo. 77-1290, CCH OSHD 24,240 – the issue was whether or not theUniversity was a political subdivision of the Commonwealth ofPennsylvania and thus excluded from OSHA jurisdiction. In that case theUniversity was originally chartered as a private educational institutionand later became a part of the Commonwealth system of higher education.Its enabling act declared that the University was an instrumentality ofthe Commonwealth. The record also disclosed that approximately one-thirdof the operating budget was supplied by the State; that its bonds weretax exempt; that it reported to the legislature; and that its librarywas designated as a State library.On appeal, the Review Commission decided that the University was not adepartment or administrative arm of the Government and was notadministered by individuals who were controlled by public officials. TheCommission observed that the University’s Board of Trustees, not theState, was vested with the entire management, control and conduct ofUniversity affairs. Control of the employment relationship was held tobe of paramount significance, especially since there was no Stateinvolvement in the working conditions of the University employees.As in the University of Pittsburgh case, the Respondent was chartered asa private institution and not created pursuant to statutory authority.Parallel with the University case, the Society cannot pledge the creditor taxing power of the State or any political subdivision of the State.The Society is not controlled by the Forest Preserve District, but, asstated in its charter:The management of the aforesaid The Chicago Zoological Society shall bevested in a Board of twenty-five (25) Directors.On the authority of the University of Pittsburgh case, I conclude thatthe Respondent is not a political subdivision of a State, is not exemptfrom the Occupational Safety and Health Act by virtue of Section 3(5)thereof, and is subject to the jurisdiction of the Occupational Safetyand Health Administration.Inasmuch as there are no other issues in this proceeding, the Citationand suggested penalties are affirmed.Sidney GoldsteinJudge, OSHRCDated: March 9, 1984FOOTNOTES:[[1]] Section 3(5) of the Act defines \”employer\” as a \”person engaged ina business affecting commerce who has employees, but does not includethe United States or any State or political subdivision of a State.\”[[2]] According to the testimony, only the chairman of the Cook CountyBoard who is also the chairman of the Board of the Forest PreserveDistrict is a member of the Society’s Board of Trustees. None of theSociety’s governing members, however, are members of the Board of theForest Preserve District.[[3]] An ordinance by the District, made part of the most recent versionof the agreement states in part:The District hereby sets aside and allots to the Chicago ZoologicalSociety for the maintenance and operation of a zoological park, by saidSociety, a tract of land belonging to the District and situated in CookCounty, Illinois and particularly described in the following section.The President and Secretary of this Board are hereby authorized,empowered and directed to execute, on behalf of the Forest PreserveDistrict of Cook County, an agreement between it and the ChicagoZoological Society, a corporation not for pecuniary profit, organizedunder the laws of the State of Illinois for the purpose of maintaining,and operating a zoological park, making collections of animals andpromoting zoology and kindred subjects and for the instruction andrecreation of the people.[[4]] The provision of the National Labor Relations Act, 29 U.S.C. ?152(2), reads in part as follows:The term \”employer\” includes any person acting as an agent of anemployer, directly or indirectly, but shall not include the UnitedStates or any wholly owned Government corporation, or any FederalReserve Bank, or any State or political subdivision thereof . . . .[[5]] Such approval is not always given. For example, the Society wasunable to erect lodging and an addition to the round house because itfailed to obtain District approval for these projects. In addition, theDistrict has not always agreed to the Society’s request to increaseadmission fees.[[6]] Restricted funds, which are not commingled with District funds,are generally from private contributions and designated for scientificresearch and animal welfare.[[7]] In the University of Pittsburgh case, the Commission held that,the University of Pittsburgh, a state-related institution under theUniversity of Pittsburgh- Commonwealth Act, Act of of July 28 1966, 24P.8. ? 2510-201 et seq., is not a political subdivision for purposes ofthe Act. That case is distinguishable, however, since the state’sinvolvement in the University’s affairs is limited. The two mostcritical factors present in this case in support of concluding that theSociety is a political subdivision are lacking in the Pittsburgh case.Public funds comprise only about one-third of the University’s operatingbudget and state control is limited to this amount. Moreover, there isno indication that the state’s involvement in academic affairs extendsbeyond requiring the University to report on those matters. Finally, theUniversity of Pittsburgh was originally chartered as a privateinstitution in 1787 and only became a state-related institution throughstate legislation in 1966. Such legislation altered the University’stuition rate schedules and the method of financial management andaccountability but the University retained its fundamentalcharacteristic as a private institution of higher learning. In contrast,the management of the zoo by the Society derives from and is controlledby the Society’s contractual relationship with the District, which inturn rests upon the special legislation enacted by Illinois in 1923.Hence, the source of the Society’s authority with respect to the zooderives ultimately from state statute.”