Alcoholism Services Of Erie County

National Labor Relations Board - Board Decisions

Jun 14, 1978

236 N.L.R.B. 927 (N.L.R.B. 1978)

ALCOHOLISM SERVICES OF ERIE COUNTY, INC.
Alcoholism Services of Erie County, Inc. and Buffalo
& Western New York Hospital & Nursing Home
Council, AFL-CIO. Case 3-CA-6968
June 14, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On February 9, 1978, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Alcoholism Services of
Erie County, Inc., Buffalo, New York, its officers.
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
l In asserting jurisdiction over Respondent., we do not rely on Respon-
dent's lack of intimate connection with the county of Erie. but rather rel) on
Respondent's degree of control over the working conditions of the emplo-
ees which enables Respondent to bargain effectively with the Union. Catho-
lic Bishop of Chicago, A Corporation Sole, Department of Federal Programs.
235 NLRB No. 105 (1978). We note, in agreement with the General (Coun-
sel's exception, that Buffalo Area Council on Alcoholism and the Union
did. in fact, reach agreement.
2 Members Jenkins and Truesdale adopt the Administrative Law Judge's
recommended order requiring Respondent to bargain with the Union.
While he specified in the section of his Decision entitled "Remedy" that the
initial period of certification will be construed as beginning on the date
Respondent commences to bargain In good faith with the Union as the
recognized bargaining agent in the appropriate unit, we find that a general
bargaining order is the appropriate remedy. without stating a specific exten-
sion of the certification year. See Federal Pacific Electric Companm. 215
NLRB 861 (1974).
Chairman Fanning would affirm the Administrative Law Judge on this
point. Where, as here. the Respondent. a successor employer, has neither
adopted the contract negotiated by its predecessor nor recognized the certi-
fied Union. the Chairman would hold that the Union has been effectively
deprived of all the benefit of the certification. Cf. Glomac Plastics In- . 234
NLRB 1309, fn. 4 (1978).
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on March 14, 1977, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 3, issued a complaint on April 27, 1977, against
Alcoholism Services of Erie County, Inc., herein called Re-
spondent. alleging that it had engaged in certain unfair
labor practices in violation of Section 8(a)(l) and (5) of the
National Labor Relations Act, as amended, herein called
the Act. The Respondent filed an answer denying the alle-
gations of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before the under-
signed in Buffalo, New York, on August 8, 9, and 10, 1977.
Briefs were received from the General Counsel and the
Respondent on October 3, 1977, and they have been care-
fully considered.'
Upon the entire record in this case, I hereby make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
A. Background; the Issues
On May 7, 1976, following an election, the Board certi-
fied as the exclusive bargaining agent of the employees of
the Buffalo Area Council on Alcoholism, hereinafter called
BACA, all employees in an appropriate bargaining unit
consisting of all regular full-time and regular part-time se-
nior emergency technicians, junior emergency technicians,
senior aides, aides, and clerk typists employed at the Erie
County Rehabilitation Center, 291 Elm Street, Buffalo,
New York, excluding the senior clerk typist, vocational
counsellors, registered nurses, social workers, guards, and
supervisors as defined in the Act, and all other employees.2
Although the parties thereafter engaged in negotiations, no
collective-bargaining agreement was ever reached.
On January 1. 1977, the Respondent, Alcoholism Ser-
vices of Ene County, Inc., hereinafter called ASEC or Re-
spondent, entered into contracts with the Erie County
(New York) Department of Mental Health to operate the
Erie County Rehabilitation Center at 291 Elm Street, Buf-
falo, New York, which is the same facility previously oper-
ated by BACA. Although the Union subsequently request-
ed Respondent to bargain for the employees in the
foregoing unit certified by the Board, Respondent declined
recognition and refused to bargain.
The complaint alleges that Respondent is a successor to
BACA and that its admitted refusal to bargain was in vio-
lation of Section 8(a)(5) and (1) of the Act. Respondent
defends itself on two grounds. One is that ASEC shares the
statutory exemption of the County of Erie and the State of
New York under Section 2(2) of the Act and hence is not
The General C(ounsel's unopposed motion to correct the transcript. dat-
ed September 29. 1977. is herchb granted
-Case 3 RC 6S60
236 NLRB No. 111
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject to the jurisdiction of the Board. The second is that
ASEC is not a successor of BACA.
B. The Jurisdictional Issue
It may be stated at the outset that with respect to the
jurisdictional issue the General Counsel relies on Mental
Health Services-Erie County South East Corp. V, 220
NLRB 96 (1975), in which case the Board found that the
named employer was not exempt under Section 2(2) of the
Act, and accordingly asserted jurisdiction.
At all times material hereto, Respondent has maintained
its principal office, facilities, and place of business at 291
Elm Street, Buffalo, New York, where it is engaged in the
business of providing alcoholism treatment, rehabilitation,
and related services. During the year 1977 Respondent per-
formed services valued in excess of $500,000 for the Erie
County Department of Mental Health and services valued
in excess of $40,000 for private patients, approximately
$30,000 of which latter amount was derived from New
York State medicaid.
Organized pursuant to section 402 of the Not-for-Profit
Corporation Law of the State of New York in December
1976, Respondent is a nonprofit organization. Owning no
assets of its own, the facility operated by Respondent at
291 Elm Street, including the furniture and equipment, be-
longs to either Erie County or the State of New York. For
all practical purposes, Respondent's activities are entirely
supported by public funding.
The first of two basic programs undertaken by Respon-
dent at the 291 Elm Street facility is a sobering-up station
which provides emergency treatment for intoxicated per-
sons. This program is operated pursuant to contract with
the county of Erie and is entirely funded by State revenues.
The second basic program involves a residential program
featuring long term care, treatment, rehabilitation, and
training for nonintoxicated alcoholics. This program and
the services involved are provided under a separate con-
tract with Erie County and is supported by funds contrib-
uted equally by the county and the State. Both of these
programs, it is to be noted, are part of a comprehensive
program administered under statute by the State Depart-
ment of Mental Hygiene for the care of mentally ill, in-
cluding alcoholics. However, although these services may
be provided directly by the State via the county, Respon-
dent ASEC is in fact a private sector counterpart to the
Erie County Department of Mental Health, one of several
agencies having the same status.3
The record reflects that in this case, as in Mental Health
Services-Erie County South East Corp. V, supra, the rela-
tionship between Respondent and Erie County is a con-
tractual one; and although the county has "ultimate con-
trol" over Respondent's activities, their respective rights
and obligations are spelled out in the contracts. Similarly,
except for overall guides and standards, the county does
not have the authority to tell the Respondent how to con-
duct its day-to-day operation.
Robert Shear, the executive director of Respondent, is
'G.C. Exh. 17,
responsible for the interviewing, hiring, and termination of
employees, subject only to review by the Erie County De-
partment of Mental Health set forth in the qualifications of
approved job descriptions. Although Respondent may not
pay its employees more than the maximum that a compa-
rable county employee can receive, Respondent is free to
exercise its discretion in paying its employees lesser
amounts or at hiring employees below the county's usual
starting rates. Respondent is also responsible for develop-
ing its own fringe benefit program, although these beneifts
may not exceed comparable benefits paid to county em-
ployees.
Respondent's agreement with the county contemplate
that Respondent may or will enter into a collective-bar-
gaining agreement with a labor organization. Aside from a
restriction that "the County shall not reimburse the Agen-
cy for any expenditures pursuant to such labor agreement
or Agency plan which exceed the line item budget provi-
sions in Appendix A," insofar as labor relations are con-
cerned the contract otherwise only requires Respondent to
provide the county with copies of all collective-bargaining
agreements that have been negotiated.
Section 2(4) of the Act enlarged the Board's jurisdiction
in the health field to include:
Any hospital, convalescent hospital, health mainte-
nance organization, health clinics, nursing home, ex-
tended care facility, or other institution, devoted to
the care of sick, infirm, or aged person:
Aside from the jurisdictional issue herein raised by the
Respondent, I think it clear, and I would find, that alcohol-
ics are "sick persons" within the meaning of the above
Section of the Act. Indeed, this was so recognized in an
attached document of a memo to the ad hoc committee,
whose function was to form the Respondent corporation,
by Dr. David S. Reynolds, which states in pertinent part as
follows: 4
The concept of alcoholism as a disease to be treated
has become more commonly accepted today though it
was only in the 1950's that the AMA officially desig-
nated alcoholism as a disease. The general principle of
treatment of alcoholism rests on the assumption that
alcoholism is a progressive disease of drug addiction
with greater prognosis for arrest and treatment when
detected and treated in the earlier stages.
Upon the entire record in this case, I find no merit in
Respondent's contention that the factual circumstances in
the present case are materially different from those in Men-
tal Health Services-Erie County South East Corp. V. To
the contrary, I find that the factual circumstances to be so
similar that I must regard the Mental Health Services case
to be controlling here. Accordingly, in rejecting Respon-
dent's contention that Respondent shares the exemption of
the county of Erie and the State of New York under Sec-
tion 2(2) of the Act, I adopt as applicable here the follow-
ing finding of the Board in the Mental Health Services, su-
pra:
Moreover, we find that the services provided by the
4
G.C. Exh. 17.
928
ALCOHOLISM SERVICES OF ERIE COUNTY, INC.
Employer are not so intimately connected with the
county of Erie as to consider it a joint-employer with
the county, or to justify the extension of the county's
exempt status as a political subdivision of the State of
New York under Section 2(2) of the Act to the Em-
ployer. We further find that the Employer exercised
sufficient control over the wages, hours, and other
conditions of employment of its employees to enable it
to bargain effectively with the Union. [Footnotes
omitted.]
In sum, and upon all the facts heretofore related, I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that it is subject
to the jurisdiction of the Board.
11. THE LABOR ORGANIZATION INVOLVED
Buffalo & Western New York Hospital & Nursing
Home Council, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
iil. THE UNFAIR LABOR PRACTICES
Respondent was organized as a corporation pursuant to
the efforts of an ad hoc committee during the latter part of
1976. It took over the aforenoted facilities at 291 Elm
Street previously operated by BACA on January 1, 1977,
and immediately continued, with minor subsequent modi-
fications, the same operations and services as had been
provided by BACA.
As previously noted, notwithstanding Board certification
of the Union on May 7, 1976, the Union and BACA com-
menced bargaining but never reached a collective-bargain-
ing agreement prior to January 1, 1977. By letter addressed
to Respondent dated January 25, 1977, and February 7,
1977, the Union requested Respondent to bargain.5 It is
undisputed that at all times material hereto Respondent
has refused to recognize and bargain with the Union. As
has also been previously noted, the complaint alleges, and
Respondent denies, that Respondent is a successor to
BACA and that Respondent's refusal to bargain with the
Union was therefore violative of Section 8(a)(5) and (1) of
the Act.
The facts in this case are such that no lengthy discussion
of the successorship issue is required. As has been indi-
cated, there was no hiatus in operations when Respondent
took over the 291 Elm Street facilities on January 1, 1977.
Respondent retained a majority of the same unit employ-
ees formerly employed by BACA 6 and continued opera-
sConceding that the February 7 letter constituted a request to bargain,
Respondent apparently questions the letter of January 25 as constituting a
request to bargain. While the matter does not warrant detailed discussion. I
would construe the letter of January 25 as also being sufficiently clear to
constitute a request to bargain. This is particularly true because Rohert
Shear, Respondent's executive director to whom the letter was addressed.
concededly was previously aware of the Union's status as the collective-
bargaining agent as well as the fact that the Union had undertaken collec-
tive-bargaining negotiations with BACA.
s In fact. with the exception of Executive Director Shear. all 25 of the
employees (including supervisors) on Respondent's payroll as of Januart I.
tions at the same location and in the same facilities as its
predecessor, with the same equipment. Although the testi-
mony of Executive Director Shear indicates that Respon-
dent intends to place more emphasis on the long term
treatment of alcoholics than did its predecessor. the fact
remains that Respondent's basic function, as was that of its
predecessor, is to provide for the care and treatment of
alcoholic persons. Considering all the foregoing factors
and circumstances, I find that Respondent's operations is
essentially the same as that of its predecessor in every ma-
terial respect and that Respondent therefore is a successor
employer. N. L. R.B. v. Burns International Security Services,
Inc.. et al.. 406 U.S. 272 (1972); Nazareth Regional High
School v. N.L. R.B.. 549 F.2d 873 (1977): Dynamic Machine
Co.. 221 NLRB 1140 (1975). Accordingly, since Respon-
dent was bound to bargain with the Union, I find that its
refusal to do so violated Section 8(a)( ) and (5) of the Act.
IV THE EFFECT OF THE U NFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
v THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that
Respondent cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the poli-
cies of the Act.
In order to ensure that the employees in the appropriate
unit will be accorded the services of their selected bargain-
ing agent for the period provided by law, I shall construe
the initial period of certification as beginning on the date
Respondent commences to bargain in good faith with the
Union as the recognized bargaining representative in the
appropriate unit. See Dynamic Machine Co., supra, and
cases cited therein.
CONC(LUSIONS OF LAW
1. Alcoholism Services of Erie County, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Buffalo & Western New York Hospital & Nursing
Home Council, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) is: 7
1977. cere former BA( A emplo ees
Although the names or tites of certain job classlfications have been
changed by Respondent since the initial Board certification, the partile
should have no difficulty In determining which of the new classiflcations
Continued
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All regular full-time and regular part-time senior
emergency technicians, junior emergency technicians,
senior aides, aides, and clerk typists employed by Re-
spondent at the Erie County Rehabilitation Center,
291 Elm Street, Buffalo, New York, excluding the se-
nior clerk typist, vocation counsellors, registered nurs-
es, social workers, guards, and supervisors as defined
in the Act, and all other employees.
4. Since May 7, 1976, the above-named labor organiza-
tion has been and now is the certified and exclusive repre-
sentative of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
5. By refusing on or about February 10, 1977, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive representative of
all the employees of Respondent in the appropriate unit,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On the basis of the above findings of fact, conclusions of
law, and the entire ;ecord, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER
The Respondent, Alcoholism Services of Erie County,
Inc., Buffalo, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Buffalo & Western New York Hospital &
Nursing Home Council, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the appropriate
unit set forth in the above Conclusions of Law, paragraph
3.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
were intended to be included in or excluded from the initial Board certifica-
tion.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
9 In the event that this Order is enforced by a Judgment of a United
States (Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its facilities in Buffalo, New York, copies of
the attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with Buffalo & Western
New York Hospital & Nursing Home Council, AFL-
CIO, as exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL. upon request, bargain with the above-
nanrrd Union as the exclusive representative of all em-
ployees in the bargaining unit described below with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All regular full-time and regular part-time senior
emergency technicians, junior emergency techni-
cians, senior aides, aides, and clerk typists employed
by us at the Erie County Rehabilitation Center, 291
Elm Street, Buffalo, New York, excluding the senior
clerk typist, vocational counsellors, registered nurs-
es, social workers, guards, and supervisors as de-
fined in the Act, and all other employees.
ALCOHOLISM SERVICES OF ERIE COUNTY. INC.
930