“Docket No. 79-2304 SECRETARY OF LABOR, Complainant, v. CHICAGO ZOOLOGICAL SOCIETY, Respondent.OSHRC Docket No. 79-2304DECISIONBefore: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration. It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).The Chicago Zoological Society (\”the Society\”)operates the Brookfield Zoo located in the Forest Preserve District of Cook County,Illinois (\”the District\”). The Society is a not-for-profit corporationclassified as 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 issue before theCommission is whether, as Administrative Law Judge Sidney J. Goldstein held, the Societyis an \”employer\” subject to the Act. The Society contends that it is a\”political subdivision\” of Illinois and is therefore excluded by section 3(5)from the requirements of the Act.[[1]]I.To determine whether the Society is a political subdivision, itis necessary to understand how the Society was created, the source of its operatingauthority, and its relationship to the Cook County governing authorities. The Society wascreated following the Conveyance in 1920 by the McCormick family of a large tract of landto the Forest Preserve District, a municipal corporation created by popular vote by thecitizens of Cook County. The deed provided that the property was to be used in perpetuityas a \”zoological park\” by the District. The President of the Cook County Boardof Commissioners, who was also the President of the District Board of Commissioners,created two committees, one composed of fellow Commissioners and the other of prominentcitizens, to survey the way in which zoological institutions were administered andcontrolled. The two committees subsequently applied to the state for a charter as\”The Chicago Zoological Society.\” The charter, which was granted in 1921,described the purpose of the Society as the \”founding, maintenance and control ofzoological parks.\” Management was vested in a 25-member Board of Trustees. Accordingto the Society’s by-laws, the trustees choose a president, other officers, and anexecutive 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 other forest preservedistricts the authority, among other things, to contract \”with the directors ortrustees of any zoological society on such terms and conditions as may to such corporateauthorities seem best, relative to the erection, operation and maintenance of a zoologicalpark and the collection and display of such animals within such forest preserve . . ..\” In the same act, the Illinois legislature authorized the forest preserve districtsto levy a property tax for the purpose of constructing and operating zoological parks.Under the authority granted to the District by the Illinoislegislature, the District entered into an agreement with the Society in 1926.[[3]] Thiscontract sets apart the tract of land conveyed to the District by the McCormick family fora zoological park and gives to the Society \”the entire control and management of saidpark.\” The Society is also given the authority to employ, direct and remove employeesof the zoo and to fix their salaries. Among other things, the Society is required tosubmit annually to the District a detailed budget setting forth the costs of the items inconnection with which the Society desires to spend money during the succeeding year, andthe District must levy and collect annually such tax as is needed for the park. Othersections of the contract prohibit the Society from mortgaging or encumbering any zoobuilding, or selling or removing zoo buildings or cages without the written consent of theDistrict.\u00a0 In addition, the contract specifies the amount for admission fees andrequires approval by the District of all zoo concessions and their rates. The contractalso provides that the Society’s books shall be audited annually by the District and opento inspection at all times by the District. The Society must seek District approval forthe cutting down of live trees, and permit the District to have access to zoo property.Moreover, pursuant to the agreement, \”[all] property purchased by the Society withfunds provided by the said District shall be the property of said District . . . .\”II.With these facts in mind we turn to the question of whether theSociety is a political subdivision and exempt from the requirements of the Act. The Actdoes not define \”political subdivision.\” However, there is considerable case lawinterpreting a provision of the National Labor Relations Act, 29 U.S.C. ? 151 et seq.(\”NLRA\”), similar to section 3(5).[[4]] Under the NLRA, a \”politicalsubdivision\” is an entity either (1) created directly by the state, so as toconstitute a department or administrative arm of the government, or (2) administered byindividuals who are responsible to public officials or to the general electorate. See NLRBv. Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600, 603 (1971)(\”Hawkins\”). The Commission has previously recognized that the NLRA test isrelevant in determining whether an organization is a \”political subdivision\”within the meaning of section 3(5) of the Act. University of Pittsburgh, 80 OSAHRC 79\/E4,7 BNA OSHC 2211, 1980 CCH OSHD (P) 24,240 (No. 77-1290, 1980). Moreover, the Secretary haspromulgated a regulation at 29 C.F.R. ? 1975.5(b) which is essentially identical to theNLRA test. The NLRA case law is therefore apposite to the determination of whether theSociety is a \”political subdivision\” under the OSH Act.As described above, the Society was not created directly by theState of Illinois and is clearly not a \”political subdivision\” within the firstpart of the test. The question is therefore whether the Society’s relationship to theForest Preserve District, which is a governmental unit, is such that the Society can besaid to be responsible to either the District or the general electorate.Case law under the NLRA establishes that many factors arerelevant to a determination of whether the individuals who administer an organization areresponsible to public officials or the general electorate. Two key factors evidencing therequisite degree of responsibility are dependence by the organization on public funds andapproval of the organization’s budget by a public agency. Jefferson County CommunityCenter 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 York Institute for the Blind, 254 N.L.R.B. 85, 106 LRRM 1113 (1981). Otherrelevant factors are whether the organization possesses certain powers associated withpublic entities, such as the power of eminent domain or the power to issue tax-free bonds,Hawkins, 402 U.S. at 608; Lewiston Orchards Irrigation District, 186 N.L.R.B. No. 121, 75LRRM 1430 (1970)); and whether the organization’s employees have the same pay scale orother employment rights and benefits as public employees. Denver Post of the NationalSociety 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 public officials, that isstrong evidence that the organization is responsible to those officials. Hawkins, 402 U.S.at 607-08; NLRB v. Highview, Inc., 590 F.2d 174, 177 (5th Cir. 1979); Founders Society,Detroit Institute of Arts, 271 N.L.R.B. No. 41, 116 LRRM 1376 (1984).Applying these factors, we conclude that the Society is apolitical subdivision under the second part of the test. Although the Society is aseparate entity, the record establishes that, throughout its history, the Society has beenclosely linked to, and its basic operations have been either directly or indirectlycontrolled by the District. As Dr. Rabb, the zoo director testified, the Society acts asan agent for the District, and cannot operate the zoo on its own. Although the contractbetween the Society and the District gives the Society management of the zoo, fundamentalcontrol over the existence and operation of the zoo resides in the District. Indeed, theDistrict has access to the grounds and the Society’s books at all times and retainsownership of funds, property, animals, facilities and zoo premises.It is particularly significant that the Society is primarilydependent on the District with respect to its financial affairs. The record establishesthat 85-90% of the Society’s operating capital is made available through either Statestatute or agreement with the District. In recent years, the Society has receivedapproximately 60% of its income for operating expenses from the District’s tax levy. Inpast years when the Society was unable to meet its expenses, the District imposed anadditional tax levy to offset the accumulated deficits. The Society also receives fundsfor capital improvements through bonds sold by the District. Further, the District hascontrol over many of the zoo’s other sources of revenue, since the District must approveall fees and charges for admission, parking, amusements, refreshments and otherconcessions. Moreover, funds received by the Society through a grant from the IllinoisDepartment of Conservation and the State Capital Development Board were obtained becauseof the Society’s relationship to the District.In addition to its financial dependence on the District, theSociety is also answerable to the District for its expenditures. According to theevidence, the Society is required to obtain District approval for such wide-rangingactivities as removal of a tree and entering into a construction contract.[[5]] Its booksare also subject to an annual audit by the District. Even more importantly, however, theSociety is required to submit to the District a line-item budget \”setting out theparticular purposes for and an estimate, properly itemized, of the actual costs, . . .[for] which the Society desires to expend money during the succeeding year. . . .\”The detailed nature of the Society’s budget is indicated by the inclusion in the 1983budget of $5,000 items for a \”Sloth Bear Maternity Den\” and\”Giraffe\/Pachyderm Heaters\” out of a total budget of 12 million dollars. Thebudget also includes a separate line for each kind of employee position, along with theannual cost for it. E.g., \”computer operator . . . 1 . . . 8.55 [dollars per hour] .. . 15,561.00 [dollars per year].\” Although its contract with the District permitsthe Society to exercise some discretion in the expenditure of funds from sources otherthan the District, these funds are considered in the budgeting process; are included inthe annual audit as are expenditures from tax revenues; by practice have with limitedexception been commingled for operation purposes with monies derived from the District;[[6]] and in the case of dissolution of the Society, are ultimately the property of theDistrict. It is therefore apparent that the District exercises significant control overall operations of the Society through the budgeting process and its independent approvalof certain zoo activities.The Society’s officers and trustees are not directly appointedby or subject to direct removal by public officials. However, consistent with severalcases decided under the NLRA, we conclude that an organization properly is considered apolitical subdivision, despite such independence of its governing body, if its financesand its basic operations are largely under the control of governmental officials or theelectorate. See Rosenberg Library Association, Northampton Center for Children &Families, and New York Institute for the Blind. The Society’s employees also are notpublic employees for purposes of their wages and benefits. However, in light of theDistrict’s control over the Society’s finances, including its authority to approve or denybudgeted amounts for wages and benefits, we consider the non-governmental status of theSociety’s employees to be relatively unimportant.Further, although the Society is not a department oradministrative arm of a governmental body, its purpose and some of its basic operationsare characteristic of a political subdivision. Like many government agencies, the Societyexists to fulfill a public purpose: the operation of a zoological park. The Society alsohas been given a certain public power appropriate to its functions; pursuant to an actpassed by the Illinois legislature, the District granted police powers to the zoo’ssecurity force. The zoo also has its own building code and its vehicles have municipallicense plates. The Secretary points out that the Society lacks certain other governmentalpowers, such as the power of eminent domain and the power to issue revenue bonds. However,legislatures do not typically endow government agencies with all possible powers butdelegate only those powers necessary for agencies to fulfill their functions. Moreover,the District, which as a practical matter controls the fiscal policy of the Society, doesissue bonds. Therefore, we do not find it persuasive that the Society is unable to issuerevenue bonds, or exercise the power of eminent domain.On balance, we conclude that the Society is a \”politicalsubdivision\” within the meaning of section 3(5) of the Act.[[7]] The judge’s decisionis reversed and the citation is vacated.FOR THE COMMISSION Ray H. Darling, Jr. Executive SecretaryDATED: MAR 21 1986\u00a0BUCKLEY, Chairman, dissenting:In my opinion, the Chicago Zoological Society does not meet thecriteria established by case law to be considered a \”political subdivision\” ofthe State of Illinois. I would therefore affirm the judge’s decision finding that theSociety is an \”employer\” within the meaning of section 3(5) of the OccupationalSafety and Health Act of 1970 (\”the OSH Act\”).The Chicago Zoo was created under the auspices of the CookCounty Board of Commissioners. Following the McCormick family’s offer of land to theCounty to be used as a zoo, the president of the Cook County Board of Commissioners, PeterReinberg, formed committees to determine how the zoo should be established and organized.It was ultimately decided that the zoo should be run by a private organization rather thandirectly by the government.\u00a0 The reason for this decision was explained by Mr.Reinberg:Above all, this project must be supervised by a non-politicalboard of most suitable members, and an executive staff of utmost expertness. Politics,which though many of its phases are admirable, has others that, when its functions aremisused, are very undesirable, must not be allowed to dictate in this.Chicago Zoological Society Year Book (1927), at p. 52. Thus,the impetus for the Society’s creation as a private, nonprofit corporation was to avoidhaving the zoo operated by Cook County or an agency of the County. The Society has, sinceits inception, operated the zoo under contract to the Forest Preserve District of CookCounty, but has always maintained its identity as an organization distinct from theDistrict.The issue in this case is whether the Society is a\”political subdivision\” of Illinois within the meaning of section 3(5) of theOSH Act. The Act’s legislative history contains no explicit explanation for the exclusionof States and their political subdivisions from the class of employers subject to the Act,nor does it suggest how \”political subdivision\” should be defined. However, asthe lead opinion points out, the National Labor Relations Act (\”NLRA\”) alsocontains a definition of \”employer\” that excludes states and their politicalsubdivisions. That provision of the NLRA has its basis in Tenth Amendment considerationsof state sovereignty and the Eleventh Amendment grant of judicial immunity to the states.Crestline Memorial Hospital Association v. NLRB, 668 F.2d 243, 245 n. 1 (6th Cir. 1982).Because Congress included similar definitions of \”employer\” in both the NLRA andthe OSH Act, it is reasonable to infer that Congress had the same considerations in mindin excluding states and their political subdivisions from the operation of both statutes.Hence, it is appropriate to apply the definition of \”political subdivision\”under the OSH Act that has been developed through the case law under the NLRA.As the lead opinion points out, a two-pronged test has beendeveloped to determine whether an organization is a \”political subdivision\”under the NLRA. Under the first prong of the test, an entity is a political subdivision ifit is created directly by the state so as to constitute a department or administrative armof the government. The lead opinion concludes that the Society does not meet thiscriterion, and I agree. As noted above, the Society was organized as a private corporationfor the express purpose of avoiding the zoo’s management by a government agency. Moreover,an organization is a political subdivision under this prong of the test only if it is notorganizationally distinct from a governmental unit or is administered by public officials,conditions clearly not met by the Society. See Jervis Public Library Association, 262N.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 and Families, 257N.L.R.B. No. 114, 108 LRRM 1008 (1981)(organization was part of Massachusetts Departmentof Mental Health when created; it later became a private nonprofit corporation in order toqualify for federal funds 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 wascreated by act of the New York Legislature and operated under supervision of New York’sBoard of Regents); Camden-Clark Memorial Hospital, 221 N.L.R.B. No. 160, 91 LRRM 1024(1975)(organization was created by city ordinance and had no separate status as a legalentity apart from the city).An organization is exempt under the second part of the NLRAtest if it is administered by individuals who are responsible to public officials or tothe general electorate. The critical factor in applying this test is whether theindividuals who administer the organization are appointed or are subject to removal bypublic officials. In NLRB v. Natural Gas Utility District of Hawkins County, Tennessee,402 U.S. 600 (1971), the Supreme Court found the organization was responsible to publicofficials because the commissioners were appointed by an elected county judge and weresubject to removal under Tennessee law providing for the removal of public officials. Seealso Rosenberg Library Association, 269 N.L.R.B. No. 197, 116 LRRM 1051 (1984) (librarythat was headquarters for county library system and which had the same board of directorsand librarian as 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) (nonprofitcorporation found to be a political subdivision when executive director was appointed withand served at the pleasure of the Mayor); Jefferson County Community Center v. NLRB, 732F.2d 122 (10th Cir. 1984) (nonprofit corporation which provided education and vocationalservices under contract with state is not political subdivision; 7 of 15 board members areappointed by public agencies, but majority is neither appointed by nor subject to removalby public agencies); Crestline Memorial Hospital Association v. NLRB, 668 F.2d at 245(non-profit corporation that operates hospital under lease from city is not politicalsubdivision when public officials \”have no right to interfere with the management ofthe facility\”); Truman Medical Center v. NLRB, 641 F.2d 570 (8th Cir. 1981)(nonprofit corporation that contracted with governmental units for services such as careof indigents was not a political subdivision when 31 of 49 members of the board ofdirectors were not appointed by or subject to removal by public officials); MuseumAssociates v. NLRB, 688 F.2d 1278 (9th Cir. 1982) (nonprofit corporation that operates LosAngeles County Museum of Art under contract with government is not a politicalsubdivision); NLRB v. Highview, Inc., 590 F.2d 174 (5th Cir. 1979) (nonprofit corporationproviding nursing care to the elderly on county-owned facilities is not politicalsubdivision; organization was incorporated by private individuals and the county cannotinfluence the selection of the organization’s directors or affect their decisions);University of Pittsburgh, 80 OSAHRC 79\/E4, 7 BNA OSHC 2211, 1980 CCH OSHD (p) 24,240 (No.77-1290, 1980) (state-related university not a political sub-division: two-thirds ofuniversity’s board of trustees are not state-appointed or controlled).In this case, public officials neither select nor have thepower of removal over a majority of the persons who administer the Society. None of theSociety’s 240-member Governing Board, and only one member of the Society’s 25-member Boardof Trustees. is a public official. The Society’s officers are chosen by its Board ofTrustees and are not subject to removal by public officials, nor can they be removed undera state law governing removal of public officials. The officers manage the zoo free ofday-to-day oversight or control by public officials. The independence of the persons whoadminister, the Society from political control strongly mitigates against finding it to bea political subdivision 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 use municipal licenseplates for its vehicles indicates that the Society is to some extent an arm of thegovernment. Moreover, although the Society’s officers manage the zoo free of day-to-dayoversight by the District, the District nevertheless exerts considerable influence overthe Society’s operations by providing funds for the zoo’s operations and by overseeing andapproving the Society’s budget. However, strict fiscal accountability to a public agencydoes not convert an otherwise private organization into a political subdivision. Agovernment’s decision to provide a public service through grant or contract with anorganization in the private sector does not alter the fundamental nature of the recipientprivate organization. Jefferson County Community Center v. NLRB; Crestline MemorialHospital Association v. NLRB; Truman Medical Center v. NLRB; Museum Associates v. NLRB;NLRB v. Highview, Inc.This is a close case. On balance, however, I am persuaded thatthe Society is not a political subdivision. The Society was created for the expresspurpose of removing the zoo’s operations from the political arena. There is no indicationthat the State of Illinois ever decided to override that original purpose and place thezoo’s operations under government control. I would therefore affirm the judge’s decision.SECRETARY OF LABOR, CompIainant, v CHICAGO ZOOLOGICAL SOCIETY, a Corporation, Respondent.OSHRC DOCKET NO. 79-2304DECISIONThis is an action by the Secretary of Labor to affirm aCitation issued by the Occupational Safety and Health Administration to the ChicagoZoological Society for the alleged violation of two regulations promulgated under theOccupational Safety and Health Act of 1970. The Citation and subsequent Complaint chargethat the Zoo failed to guard a floor hole into which persons could accidentally walk andfailed to protect a worker on a platform against falling.The matter arose after a Compliance Officer for theAdministration inspected the Society’s Brookfield Zoo, concluded that it was in violationof the regulations, and recommended that the Citation be issued with a penalty of $1,000for each offense. The Zoo disagreed with the Administration and filed a Notice of Contestto the Citation and an Answer to the Complaint.Proceedings before the Review Commission were then delayed pending the disposition ofancillary issues by the U.S. District Court. The parties now agree that the sole issueremaining is whether or not the Chicago Zoological Society is a political subdivision ofthe State of Illinois. If it is, the Administration has no jurisdiction in this matter,and the Citation is to be vacated. On the other hand, if the Society is not a politicalsubdivision of the State, the Citation and attendant penalty are to be affirmed.Documents in the record disclose that in 1920 Edith RockefellerMcCormick and her husband conveyed to the Forest Preserve District of Cook County,Illinois a tract of land on condition that the property be used as a zoological garden. Inthe following year a citizen group organized the Chicago Zoological Society and obtainedits not-for-profit charter from the State of Illinois. As indicated in the certificate,the purpose of the corporation was:For the founding, maintenance and control of Zoological Parks,Gardens, or other collections, for the promotion of Zoology and kindred subjects and forthe instruction and recreation of the people. To collect, hold and expend funds forZoological research and publication, for the protection of Wild Animal life and forkindred purposes.The corporate charter provides that the management anddirection of the society is vested in a Board of 25 Directors or Trustees, including thePresident and three Commissioners of the Forest Preserve District of Cook County. The fourclasses of members are designated as Governing, Honorary, Life, and Annual, but Governingmembers only have the right to vote for or be eligible to the Office of Trustee. TheExecutive Committee has full control of the affairs of the Society under the generaldirection of the Board of Trustees.Two years after the corporate not-for-profit charter wasissued, in 1923, the Illinois legislature authorized the Forest Preserve District tocontract with the directors or trustees of any zoological society on such terms andconditions as may to such corporate authorities seem best, relative to the erection,operation, and maintenance of a zoological park.Thereafter the Forest Preserve District entered into anagreement with the Chicago Zoological Society whereby on the specified land and at theexpense of the District the Society was to establish, maintain, and operate the zoologicalpark and to select and provide all animals, equipment, materials, and supplies. \u00a0Under the contract, the Society has the entire control and management of the park,including personnel. The District levys and collects annually a tax as needed forzoological purposes. Each year the Society submits a budget to the District, but theSociety is under no obligation to obtain the approval of the District, for expenditures ofmonies derived from sources other than the District.At the hearing the testimony was to the effect that theRespondent’s Board of Trustees selects the Director of the Zoo who is responsible for theoverall administration of its operations. He considers the Society to be the District’sagent to carry on zoo purposes. The District owns all the zoo property, but the Societymanages zoo affairs.Society funds are obtained from tax receipts, sales of food and merchandise, admission andparking fees, contributions, memberships, and gifts. It receives additional funds fromFederal and State grants, generally for specific projects, which activities do not requireprior approval of the District. For the years 1978 through 1981 tax revenue was$15,903,668. Gross receipts from admissions, merchandise sales and miscellaneous sourceswere $18,636,055.Some animals and foods cross State lines. The Society has notaxing or eminent domain powers and cannot sell Its own bonds. It engages in no lobbyingactivities but may provide information to legislators. Zoo employees are not under thejurisdiction of any Cook County subdivision or covered by civil service regulations. TheSociety is a member of local municipal organization groups.By special statute the Zoo is authorized a police departmentwhich is also commissioned by the villages of Brookfield and Riverside. Its staffgenerally confines activities to zoo property only. They carry arms and have arrestauthority. Members of the police department receive their training through an agencyavailable to municipalities and other political subdivisions. Vehicles are equipped with Mlicense plates.The Society is exempt from federal income tax. For the year1982, it filed Form 990, Return of Organization Exempt from Income Tax, with the InternalRevenue Service. This document indicated a variety of reasons for claiming exemption fromfederal income tax. The Society’s auditors checked on the form that it was exempt fromincome tax because it was an organization which normally receives a substantial part ofits support from a governmental unit or from the general public.On the basis of the foregoing record, the Respondent assertsthat it is a political subdivision of the State of Illinois and therefore exempt by virtueof Section 3(5) of the Act which provides:The term \”employer\” means a person engaged in abusiness affecting commerce who has employees, but does not include the United States orany State or political subdivision of a State.Although the term \”political subdivision\” is notdefined in the statute, the regulation found at 29 CFR 1975.5 details a number of elementsto be considered in the application of this section of the law.First, the regulation provides the initial consideration asfollows:(b) Tests. Any entity which has been (1) created directly bythe State, so as to constitute a department or administrative arm of the government, or(2) administered by individuals who are controlled by public officials and responsible tosuch officials or to the general electorate, shall be deemed to be a \”State orpolitical subdivision thereof\” under section 3(5) of the Act and, therefore, notwithin the definition of employer, and, consequently, not subject to the Act as anemployer.Second, the regulation suggests factors for meeting the tests.In this connection, a number of questions are advanced, and the applicable ones include:(a) Are the individuals who administer the entity appointed bya public official 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 agovernment rather 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 otherState and political subdivisions?(f) How do fringe benefits, rights, obligations, andrestrictions of the entity’s employees compare to those of the employees of other Stateand local departments and agencies?Third, another subsection of the regulation includes examplesof the types 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 theAct; and(c) Normally not regarded as political subdivisions of theState.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, Ifind,First, there is no evidence in the record to indicate that the Chicago ZoologicalSociety was created directly by the State so as to constitute a department oradministrative arm of the government. The record discloses that the Society applied forand received from the State of Illinois a not-for-profit charter as a private corporation.Indeed, about two years elapsed between the time the Respondent received its corporatecharter and the date it entered into a relationship with the Forest Preserve District ofCook County.Nor is the Society administered by individuals who arecontrolled by public officials and responsible to such officials or to the generalelectorate. By virtue of its charter, the Society is controlled by its Board of Directorsor Board of Trustees consisting of twenty-five members. Inasmuch as only the President ofthe District’s Board of Commissioners and three other Commissioners serve as Governingmembers of the Society, these four public officials cannot control a twenty-five memberBoard of Trustees. None of the Society’s Trustees is elected by the voters of the Countyor is responsible to the general electorate.\u00a0 Finally, the contract between theDistrict and the Society provides that the Society is in complete control of itsactivities, including personnel.Since the Respondent is not a department or administrative armof the State; and since it is not administered by individuals controlled by publicofficials and responsible to such officials or to the general electorate, the Societyfails to meet the regulation tests authorizing its exemption from the statute.Second, the record is clear that the administrator of theSociety is not appointed 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 whomare private citizens. The Director is subject to dismissal by the appointing authority,not by any public officials. Also the powers of the Society are characteristic of aprivate instrumentality rather than a government agency in that it has no power of eminentdomain or authority to issue tax-exempt bonds. Again, its staff is not regarded likeemployees of other State and political subdivisions. They do not enjoy the fringe benefitsand rights or have the obligations and restrictions of public employees; and they are notunder the jurisdiction of the Cook County civil service system. Thus, the Respondent failsto meet any of the important considerations outlined in the regulation to qualify forexemption under the statute.Third, as previously indicated, the regulation providesexamples of entities (a) normally regarded as not being employers under Section 3(5) ofthe Act; (b) probably excluded as employers under that section of the Act; and (c)normally not regarded as a State or political subdivision of a State.Group (a) includes entities such as State Department of Laborand Industry, law enforcement agencies, judicial bodies, and public libraries. The (b)class encompasses employers such as harbor districts, port authorities and State andCounty hospitals. Category (c) refers to businesses which, under agreement, performcertain functions for the State.In the comparison of the facts in this case to the threesubdivisions, it is apparent the Respondent most closely resembles an entity whichperforms certain functions for the County. The Respondent’s contractual relations with anexempt political subdivision does not transform it from a private not-for-profitcorporation into a political subdivision of the State.Indeed, the Respondent itself considered itself as a private corporation rather than agovernmental entity. When it filed its Form 990, Internal Revenue Service, Return ofOrganization Exempt from Income Tax, the Society listed as its reason for exemption as\”an organization that normally receives a substantial part of its support from agovernmental unit 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 local governmentor governmental unit.\”In its brief the Respondent reviewed a number of cases in whichan employing unit was held to be a political subdivision of a State, but none is similarto the case at bar. Thus, in Prairie Home Cemetery, 266 NLRB 107, the members of the Boardwere appointed by the mayor and confirmed by the city’s common council, and employeesparticipated in the Wisconsin Retirement Fund; in Crilly v. South Eastern PennsylvaniaTransportation Authority, 529 F 2d 1355, the entity was created by the legislature and wasgoverned by a board of directors appointed by public officials; in Popkin v. N. Y. StateHealth and Mental Hygiene Facilities Improvement Corp., 547 F 2d 18, the unit was createddirectly by the State, and its directors were the Commissioner of Health, Commissioner ofMental Hygiene, and three persons appointed by the Governor with the advice and consent ofthe Senate.Further, in Commissioner of Internal Revenue v. Shamberg’sEstate, 144 F 2d 998, the question was whether interest received by Shamberg on bonds ofthe Port of New York and New Jersey was subject to income tax. The court held that thebody politic was owned by two States, operating with twelve Commissioners, six from eachState, with veto power in the Governor. In Abad v.Puerto Rico Communications Authority, 88F. Supp. 34, the entity was controlled by public officials, and the insular telegraphsystem always was owned and operated as an integral part of the Government.Thus, in each of these decisions, the ruling members of theemploying unit were either appointed by, or reported to, public officials. Those cases aretherefore not determinative of the issues in the present controversy.Other cases advanced by the Respondent have no relationship tothe question before the Commission. For example, Hybud Equipment Corp. v. City of Akron,654 F 2d 1187, merely upheld the authority of the local government to monopolize andcontrol garbage collection; and in Secretary of Labor v Usery, 426 U. S. 833, the Courtdid not permit Congress to regulate directly the activities of States as public employerswith respect to minimum wage and maximum hour requirements.In summary, none of the cases urged by the Respondent supportsits position that it is a political subdivision of a State.In the one matter before the Review Commission involvingSection 3(5) of the Act – Secretary of Labor v. University of Pittsburgh, OSHRC Docket No.77-1290, CCH OSHD 24,240 – the issue was whether or not the University was a politicalsubdivision of the Commonwealth of Pennsylvania and thus excluded from OSHA jurisdiction.In that case the University was originally chartered as a private educational institutionand later became a part of the Commonwealth system of higher education. Its enabling actdeclared that the University was an instrumentality of the Commonwealth. The record alsodisclosed that approximately one-third of the operating budget was supplied by the State;that its bonds were tax exempt; that it reported to the legislature; and that its librarywas designated as a State library.On appeal, the Review Commission decided that the Universitywas not a department or administrative arm of the Government and was not administered byindividuals who were controlled by public officials. The Commission observed that theUniversity’s Board of Trustees, not the State, was vested with the entire management,control and conduct of University affairs. Control of the employment relationship was heldto be of paramount significance, especially since there was no State involvement in theworking conditions of the University employees.As in the University of Pittsburgh case, the Respondent waschartered as a private institution and not created pursuant to statutory authority.Parallel with the University case, the Society cannot pledge the credit or taxing power ofthe State or any political subdivision of the State. The Society is not controlled by theForest Preserve District, but, as stated in its charter:The management of the aforesaid The Chicago Zoological Societyshall be vested in a Board of twenty-five (25) Directors.On the authority of the University of Pittsburgh case, Iconclude that the Respondent is not a political subdivision of a State, is not exempt fromthe Occupational Safety and Health Act by virtue of Section 3(5) thereof, and is subjectto the jurisdiction of the Occupational Safety and Health Administration.Inasmuch as there are no other issues in this proceeding, the Citation and suggestedpenalties are affirmed.Sidney GoldsteinJudge, OSHRCDated: March 9, 1984FOOTNOTES: [[1]] Section 3(5) of the Act defines \”employer\” as a\”person engaged in a business affecting commerce who has employees, but does notinclude the United States or any State or political subdivision of a State.\”[[2]] According to the testimony, only the chairman of the CookCounty Board who is also the chairman of the Board of the Forest Preserve District is amember of the Society’s Board of Trustees. None of the Society’s governing members,however, are members of the Board of the Forest Preserve District.[[3]] An ordinance by the District, made part of the mostrecent version of the agreement states in part:The District hereby sets aside and allots to the Chicago Zoological Society for themaintenance and operation of a zoological park, by said Society, a tract of land belongingto the District and situated in Cook County, Illinois and particularly described in thefollowing section.The President and Secretary of this Board are hereby authorized, empowered anddirected to execute, on behalf of the Forest Preserve District of Cook County, anagreement between it and the Chicago Zoological Society, a corporation not for pecuniaryprofit, organized under the laws of the State of Illinois for the purpose of maintaining,and operating a zoological park, making collections of animals and promoting zoology andkindred subjects and for the instruction and recreation of the people.[[4]] The provision of the National Labor Relations Act, 29U.S.C. ? 152(2), reads in part as follows:The term \”employer\” includes any person acting as an agent of an employer,directly or indirectly, but shall not include the United States or any wholly ownedGovernment corporation, or any Federal Reserve Bank, or any State or political subdivisionthereof . . . .[[5]] Such approval is not always given. For example, theSociety was unable to erect lodging and an addition to the round house because it failedto obtain District approval for these projects. In addition, the District has not alwaysagreed to the Society’s request to increase admission fees.[[6]] Restricted funds, which are not commingled with Districtfunds, are generally from private contributions and designated for scientific research andanimal welfare.[[7]] In the University of Pittsburgh case, the Commission heldthat, the University of Pittsburgh, a state-related institution under the University ofPittsburgh- Commonwealth Act, Act of of July 28 1966, 24 P.8. ? 2510-201 et seq., is nota political subdivision for purposes of the Act. That case is distinguishable, however,since the state’s involvement in the University’s affairs is limited. The two mostcritical factors present in this case in support of concluding that the Society is apolitical subdivision are lacking in the Pittsburgh case. Public funds comprise only aboutone-third of the University’s operating budget and state control is limited to thisamount. Moreover, there is no indication that the state’s involvement in academic affairsextends beyond requiring the University to report on those matters. Finally, theUniversity of Pittsburgh was originally chartered as a private institution in 1787 andonly became a state-related institution through state legislation in 1966. Suchlegislation altered the University’s tuition rate schedules and the method of financialmanagement and accountability but the University retained its fundamental characteristicas a private institution of higher learning. In contrast, the management of the zoo by theSociety derives from and is controlled by the Society’s contractual relationship with theDistrict, which in turn rests upon the special legislation enacted by Illinois in 1923.Hence, the source of the Society’s authority with respect to the zoo derives ultimatelyfrom state statute.”