Allen Health Care Services

National Labor Relations Board - Board Decisions

Nov 30, 2000

332 N.L.R.B. 1308 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1308
Health Acquisition Corp., d/b/a Allen Health Care
Services and Community and Social Agency
Employees Union, D.C. 1707, A.F.S.C.M.E.,
AFL–CIO, Petitioner. Case 29–RC–9462
November 30, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
This case addresses the question of whether record
evidence is needed on the appropriateness of a peti-
tioned-for unit, which is not presumptively appropriate,
where the Employer refuses to take a position on the is-
sue.
On May 16, 2000, the Acting Regional Director of Re-
gion 29 issued a Decision and Direction of Election in
which, among other things, he found appropriate a unit
of home health aides and personal care aides located at
the Employer’s facilities in Jamaica, Lindenhurst, and
Mount Vernon, New York.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review of the
Acting Regional Director’s decision, contending, inter
alia, that the record contains no evidence to support the
Acting Regional Director’s finding. The Petitioner filed
an opposition brief. On July 19, 2000, the Board granted
the Employer’s request for review solely with respect to
the Acting Regional Director’s finding that the peti-
tioned-for unit is appropriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully reviewed the record, we conclude, for
the reasons set forth below, that the Employer’s failure to
take a position with respect to the appropriateness of the
petitioned-for unit did not obviate the need for record
evidence on that issue.
The Employer is a nonacute health care institution en-
gaged in operating licensed home health care agencies
that provide paraprofessional health care services to the
aged and infirm. The petitioned-for unit consists of the
Employer’s home health aides and personal care aides
located at three of the Employer’s facilities, excluding all
other employees, registered nurses, licensed practical
nurses, bookkeepers, maintenance employees, guards,
and supervisors as defined in the Act.
At the hearing, and in its subsequent briefs, the Em-
ployer has refused to take a position on whether the peti-
tioned-for unit is appropriate. The Petitioner did not call
any witnesses during the hearing. Similarly, the Em-
ployer presented no evidence. The only indication in the
record that the petitioned-for unit is appropriate is a
statement made by the Petitioner’s attorney at the hearing
that the Employer’s aides, unlike the Employer’s other
nonprofessional employees, work in patients’ homes.
Consequently, the record contains no direct testimony or
other evidence regarding the unit’s appropriateness.
In finding the petitioned-for unit in this case to be ap-
propriate although no evidence was introduced, the Act-
ing Regional Director relied on the statement by the Peti-
tioner’s attorney to find that the Employer’s aides work
in clients’ homes, whereas other employees work at the
administrative facilities.1 Additionally, the Acting Re-
gional Director, citing Bennett Industries, 313 NLRB
1363 (1994), found that evidence regarding the appropri-
ateness of the unit was unnecessary because the Em-
ployer failed to take the position that the petitioned-for
unit was inappropriate. The Acting Regional Director
reasoned that the Employer’s refusal to take a position on
unit-appropriateness indicated there was no genuine issue
in dispute requiring further facts on the issue.2 We dis-
agree.
Initially, we are faced with the question of whether the
Employer’s refusal to take a position on the appropriate-
ness of a petitioned-for unit obviates the need for record
evidence on that issue. As noted, the Acting Regional
Director reasoned that because the Employer did not af-
firmatively take the position that the unit was inappropri-
ate, the issue was not in dispute and, thus, in accordance
with Bennett Industries, no further litigation was war-
ranted. The Employer argues that, absent a presump-
tively appropriate unit, there must be at least a minimal
showing of unit appropriateness for the Board to direct
an election in that unit. After careful consideration, we
find that the Board’s holding in Bennett Industries does
not obviate the need for some showing of unit appropri-
ateness in the instant case.
In Bennett Industries, the Board found that when the
employer refused to take a position on certain employ-
ees’ supervisory status, the hearing officer did not err in
refusing to allow the employer to introduce evidence on
that issue. The Board reasoned that in cases where a
party refuses to take a position, in order to effectuate the
purposes of the Act, the Board should narrow the issues

1 The Acting Regional Director also cited People Care, Inc., 299
NLRB 875 (1990), as an instance in which the Board has found a unit
of home health care aides and personal care aides to be appropriate.
However, in that case, the Board simply relied upon the underlying
representation case in which, after an evidentiary hearing, the unit was
found appropriate. In addition, the unit there was a single facility. By
contrast, the instant unit is not confined to a single facility.
2 There was an earlier representation case involving the same em-
ployer and the same union, but a different unit than the one at issue in
the instant case. The Acting Regional Director did not rely on the re-
cord in the earlier case in making these findings.
332 NLRB No. 134
ALLEN HEALTH CARE SERVICES 1309
and limit its investigation to areas in dispute. 313 NLRB
at 1363. The employer’s unwillingness to take a position
in Bennett Industries meant that there was no contention
by any party that the disputed employees were in fact
supervisors. Thus, the presumption of employee status
was unrebutted because the burden of proving supervi-
sory status lies with the party asserting such status. 313
NLRB at 1363. In refusing to take a position, the em-
ployer thereby failed to meet its burden of proof. The
Board then found that there was no need to take record
evidence on the issue, and the Regional Director’s con-
clusion that the petitioned-for employees were presumed
to be statutory employees, in the absence of affirmative
evidence to the contrary, was correct. See also Mariah,
Inc., 322 NLRB 586 fn. 1 (1996) (hearing officer did not
err in excluding employer’s evidence when unit was pre-
sumptively appropriate, and employer declined to take a
position on the unit); HeartShare Human Services of
New York, 320 NLRB 1 (1995) (Regional Director did
not err in limiting scope of hearing to evidence of
changed circumstances since earlier case involved the
same employer and petitioner).
In contrast to Bennett Industries, and its progeny, no
similar burden of proof exists in the instant case as there
is no contention that the petitioned-for unit is presump-
tively appropriate.3 We find here that because there is no
presumption, the appropriateness of the petitioned-for
unit remains to be determined notwithstanding that the
Employer refused to take a position on the Issue. The
issue here is not one involving foreclosure of a party’s
right to present evidence. Rather, it is the question of
presenting some evidence necessary to make a unit de-
termination.
We find that in this case, the Board cannot direct an
election without any record evidence on which a finding
of unit appropriateness can be grounded. The Board has
an affirmative statutory obligation to determine the ap-
propriate bargaining unit in each case. American Hospi-
tal Assn. v. NLRB, 499 U.S. 606, 611, and 614 (1991).
Section 9(b) of the Act provides that:

3 AVI Foodsystems, Inc., 328 NLRB 426 (1999) (when the unit
sought is presumptively appropriate, the burden is on the employer to
show that the unit is inappropriate).

The Board shall decide in each case whether, in
order to insure to employees the full benefit of their
right to self-organization and to collective bargain-
ing, and otherwise to effectuate the policies of this
Act, the unit appropriate for the purposes of collec-
tive bargaining shall be the employer unit, craft unit,
plant unit, or subdivision thereof.

The Board may use classifications, rules, principles, and
precedents in order to regularize the process, but absent a
stipulation, it still must determine the appropriateness of the
unit in every case. Notice of Proposed Rulemaking and No-
tice of Hearing, 52 Fed.Reg. 25144 (1987), reprinted at 284
NLRB 1516, 1519 (citing with approval K. Davis, Adminis-
trative Law Text § 6.04, p. 145 (3d ed. 1972)).4 In making
our unit determinations, we “may simply look at the Un-
ion’s proposed unit and, if it is an appropriate unit, accept
that unit determination without any further inquiry.” Coun-
try Ford Trucks, Inc. v. NLRB, 2000 WL 1537983 at *6;
165 LRRM (BNA) 2649 (D.C. Cir. 2000). But, absent a
stipulated agreement, presumption, or rule, the Board must
be able to find––based on some record evidence––that the
proposed unit is an appropriate one for bargaining before
directing an election in that unit. Rules and Regulations,
Sec. 101.18(a).
As the record here fails to establish the appropriateness
of the petitioned-for unit, we must remand this case to
the Acting Regional Director so that an adequate factual
basis may be determined to support his unit determina-
tion.
ORDER
The Acting Regional Director’s decision is reversed
with respect to the issue on review. This proceeding is
remanded to the Regional Director for further action con-
sistent with this decision.
4 In making unit determinations in cases involving nonacute health
care institutions, the appropriateness of the unit must be analyzed under
the empirical community of interest test. Park Manor Care Center, 305
NLRB 872, 875 fn. 16 (1991); CGE Caresystems, Inc., 328 NLRB 748
(1999).