Brookdale Hospital Medical Center

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 592 (N.L.R.B. 1993)

592
313 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On December 26, 1991, the Regional Director had issued a Deci-
sion and Order Clarifying Bargaining Units in which he found the
Employer and the referring agencies to be joint employers of the
agency-referred respiratory therapists and included the referred em-
ployees in the unit with the Employer’s respiratory therapists. There-
after, on January 3, 1992, the Regional Director issued an Order to
Show Cause why the Decision and Order should not be reconsidered
in light of recent Board precedent which the parties did not have an
opportunity to brief. On review and consideration of the briefs sub-
mitted, the Regional Director reconsidered his decision.
2 In addition to the Employer’s request for review, we have also
carefully considered the opposition filed by the Petitioner, the
memorandum to the Board as amicus curiae of the League of Vol-
untary Hospitals and Homes of New York, and the statement in sup-
port of Petitioner as amicus curiae of the International Brotherhood
of Teamsters.
3 The Regional Director properly found that the UC petition was
both timely and adequate. Although the placement of the agency-re-
ferred therapists was never raised at the negotiation table, both par-
ties knew, by virtue of the Petitioner’s letter requesting inclusion of
those employees and the Employer’s refusal, that a dispute existed
as to the placement of these therapists which was not resolved dur-
ing negotiations. Thus, the petition, filed shortly after the current
contract was consummated, was timely. The absence of an explicit
reservation by the Petitioner here of its right to pursue the issue with
the Board does not evidence a waiver of this right when it agreed
to the contract. St. Francis Hospital, 282 NLRB 950 (1987).
The UC petition is adequate even though it does not refer to the
League of Voluntary Hospitals, of which the Employer is a member
and which bargains for the Employer on certain issues. Under the
terms of the League’s collective-bargaining agreement, bargaining
units are established at the individual employer level in local nego-
tiations. Because the League has not objected to the petition, no
other League member has intervened in this case, and the grant of
the petition does not require a change in individual unit descriptions
of any other employer, the petition referring only to the Employer
is adequate. Peninsula Hospital Center, 219 NLRB 139 (1975).
The Brookdale Hospital Medical Center & Member
of League of Voluntary Hospitals and Homes
of New York and Local 1199, Drug, Hospital
and Health Care Employees Union, Retail,
Wholesale, Department Store Union, AFL–
CIO, Petitioner. Case 26–UC–149 (formerly 29–
UC–371)
November 26, 1993
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 27, 1992, the Regional Director for Re-
gion 26 issued a Supplemental Decision, attached here-
to, in which he reconsidered his earlier Decision and
Order,1 and found, inter alia, that the Employer is the
sole employer of the agency-referred respiratory thera-
pists working at the Employer’s facility and that the
unit should therefore be clarified to include these
therapists. The Employer filed a timely request for re-
view.
The Board, having duly considered this matter,2
grants review solely with respect to the Regional Di-
rector’s inclusion of the Employer’s agency-referred
therapists and finds, contrary to the Regional Director,
that the Employer and the various referring agencies
are joint employers of the referred therapists. Accord-
ingly, under Greenhoot, Inc., 205 NLRB 250 (1973),
they must be excluded. In all other respects the Em-
ployer’s request for review is denied.3
The undisputed facts in this case are almost identical
to those in Flatbush Manor Care Center, Case 29–
RC–7764, decided March 12, 1992, motion for recon-
sideration denied August 19, 1993, Member Devaney
dissenting (reissued simultaneously at 313 NLRB 591),
wherein the Board found a nursing home and the agen-
cies referring licensed practical nurses (LPNs) to the
home to be joint employers of the referred LPNs and
therefore excluded the LPNs from the bargaining unit
comprised solely of the employer’s employees.
Applying Flatbush, and based on the Regional Di-
rector’s uncontradicted factual findings, we conclude
that the Employer and the agencies referring res-
piratory therapists to the Employer codetermine their
essential terms and conditions of employment and
therefore are joint employers of the referred therapists.
The referring agencies recruit and hire the referred
therapists. Occasionally, the Employer will commu-
nicate directly with the therapist after the initial refer-
ral rather than go through the referring agency. The
Employer and the agencies agree to an hourly fee for
the use of the respiratory therapists, but the agencies
determine the therapists’ hourly wages. The agencies
provide workers’ compensation; one of the two agen-
cies the Employer primarily used at the time of the
hearing makes social security deductions and the other
provides state disability insurance. Both the Employer
and the agencies are involved in discipline. For exam-
ple, the agencies discipline the referred therapists when
they refuse to work a shift or for repeated tardiness.
The Employer may counsel the referred therapists and
may request that the agency not send the therapist to
the Employer again, but the agency determines wheth-
er the referred therapist will be sent to another facility
or terminated. The Employer provides its own orienta-
tion and decides if it will accept the therapists sent by
the agencies. The Employer assigns and directs these
employees, establishes labor relations policies applica-
ble to the referred employees, and uses its own super-
visors to exercise day-to-day control over the referred
therapists. The Employer also determines hours and
sets the work schedule. Based on the above, we con-
clude that the Employer and the referring agencies are
joint employers of the referred respiratory therapists.
Contrary to the Regional Director, Lee Hospital, 300
NLRB 947 (1990), does not require a different result.
There, the Board held that the hospital was the sole
employer of certified registered nurse anesthetists
(CRNAs) working in the hospital’s anesthesia depart-
ment which was operated by a separate corporation
593BROOKDALE HOSPITAL MEDICAL CENTER
4 Chairman Stephens agrees that this conclusion is in accord with
Board law, but he notes that over the last decade health care em-
ployers have increasingly utilized contract labor to perform work
formerly done by their permanent work forces. See Hiatt &
Rhinehart, The Growing Contingent Workforce: A Challenge for the
Future (paper presented to the ABA Section on Labor & Employ-
ment Law Annual Meeting (Aug. 10, 1993)), pp. 5–6. In light of
these changes in working conditions, it may be appropriate for the
Board at some point to reexamine the continuing validity of
Greenhoot.
1 For over 25 years, the hospital and the Petitioner have had a col-
lective-bargaining relationship.
2 At the time of the hearing, the hospital employed 34 staff thera-
pists and 9 agency-referred therapists.
(AAI) with whom the employer had a contract. In
finding that AAI was not a joint employer of the
CRNAs, the Board concluded that the control over
critical terms and conditions of employment for the
CRNAs rested solely with the hospital. Hiring was
normally initiated and approved by the hospital. AAI’s
hiring of some CRNAs was an anomaly involving ei-
ther past employees of the hospital or students from
the hospital’s now defunct school for CRNAs and was
inconsistent with the hospital’s formal hiring proce-
dure. Only the hospital had the authority to terminate
the CRNAs. The hospital set wages and fringe benefits
for the CRNAs. Here, by contrast, the referring agen-
cies recruit and hire the respiratory therapists, although
the Employer has a right of refusal. The therapists’
wages are set by the referring agencies. Although the
Employer may refuse to permit a referred therapist to
return to the hospital if dissatisfied with her work, it
is the agency which decides whether the therapist is
terminated or will be sent to another placement. Al-
though, unlike AAI, the referring agencies here do not
provide onsite supervision, engage in formulating pol-
icy, or assign the referred workers, these factors are
not necessary for a joint employer finding; neither are
they evidence of a stronger relationship between the
hospital and AAI (where no joint employer relation-
ship was found) than is found here between the Em-
ployer and the referring agencies. Indeed, in Lee, the
Board specifically found these factors to be insubstan-
tial: the supervision exercised by AAI through the de-
partment’s medical director was related to the physi-
cian-nurse relationship and patient care issues; policy
was implemented only by the hospital; and work as-
signment generally consisted of placing a CRNA in a
particular operating room, a decision that could be
changed unilaterally by the hospital.
Having found joint employer status between the Em-
ployer and the various agencies with respect to the re-
ferred respiratory therapists, we also find that the
therapists must be excluded from the unit of the Em-
ployer’s employees as the Board will not include em-
ployees of a joint employer in a unit with employees
of a single employer, unless the parties consent.
Greenhoot; Lee Hospital. Here, the Employer has
never consented to the inclusion of the referred thera-
pists in its bargaining unit or agreed to bargain jointly
with the referral agencies over the terms and condi-
tions of its employees.4
Our dissenting colleague finds that the referral agen-
cy is not a ‘‘full fledged employer.’’ He does not de-
fine this phrase. We prefer to use the term ‘‘joint em-
ployer,’’ a term that traditionally has been used by the
Board and the courts, and one whose principles have
been well established over the years.
It is clear that, under these principles, the referral
agency is a joint employer of those therapists whom
they refer to the hospital. These therapists, by virtue of
their referral status, differ from the regular therapists
employed solely by the hospital. Our colleague seeks
to minimize these differences. He says that ‘‘the only
difference between the two groups [the therapists hired
by the agencies, and those hired by the Hospital] is
how they initially applied for employment at the hos-
pital . . . how much they are paid . . . and who fur-
nishes their weekly paychecks.’’
We believe that these very matters—hire and remu-
neration—are essential terms and conditions of em-
ployment.
With further respect to hiring, we recognize that the
hospital can reject a referred therapist, and can ask for
another. However, this establishes only that both the
agency and the hospital must consent before a hiring
is accomplished. It seems to us that this joint process
is a hallmark of joint employer status.
With particular respect to remuneration, we note that
agency therapists receive a higher hourly wage, but no
benefits. Given the relationship between the agency
and the hospital, it would seem that any demand for
change in remuneration could not ignore the referral
agency.
Accordingly, the unit involved here is clarified to
exclude agency-referred therapists.
MEMBER DEVANEY, dissenting in part.
In my view, the Regional Director correctly found
that the agency-referred respiratory therapists are the
employees of the hospital alone, and he properly in-
cluded them in the existing contractual unit. Therefore,
unlike my colleagues, I would deny review on all the
issues raised by the Employer’s request for review.
The Petitioner has historically represented the res-
piratory therapists working at the hospital.1 In 1987,
the hospital began using therapists referred by an out-
side agency in addition to its regular staff therapists.2
The agency therapists currently working at the hospital
were originally furnished by Ultracare and Midpoint
Health Care Services, Inc. In return for a set hourly fee
negotiated with the hospital, these two agencies have
contracted to refer therapists and perform certain ad-
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In that case, the hospital was found to be the sole employer of
the certified registered nurse anesthetists working in the hospital’s
anesthesia department despite the fact that the hospital had con-
tracted with an independent outside professional corporation, Anes-
thesiology Associates, Inc. (AAI) to be responsible for some of the
supervisory and managerial functions in that department.
ministrative and personnel functions associated with
those referrals. The agencies do administrative paper-
work, skill qualifying, interviewing, reference checks,
and verification and payroll services including making
deductions for taxes, workers’ compensation insurance,
and state disability and unemployment insurance. Un-
like my colleagues, I am not willing to find that those
routine administrative and personnel functions have
transformed Ultracare and Midpoint from employment
referral agencies into full-fledged employers of the
agency therapists working at the hospital.
As found by the Regional Director, the agency
therapists’ contact with the referral agencies, except for
their paychecks, essentially ceased when they began
working for the hospital. No onsite representative of
either referral agency is present at the hospital to han-
dle these individuals’ work questions, problems, or
complaints. Rather, it is the hospital alone which as-
sumes this role. The hospital, and not the referral agen-
cy, is the entity that actually controls the essentials:
whether, when, where, and how the agency therapists
will be utilized at the hospital
My colleagues do not dispute the Regional Direc-
tor’s factual findings reflecting the almost identical
symmetry of the staff and agency therapists. Both
groups perform the same job duties with the same hos-
pital equipment and supplies. They have identical job
descriptions, supervision, and work hours and sched-
ules. They are subject to the same work rules and
company policies. Like the staff therapists, the agency
therapists submit any requests for time off to the hos-
pital’s supervisors, and they can be counseled, dis-
ciplined, and terminated by the hospital for inappropri-
ate conduct.
The only difference between the two groups is how
they initially applied for employment at the hospital,
how much they are paid based on the timesheets pre-
pared by the hospital, and who furnishes their weekly
paychecks. The staff therapists apparently submitted
their applications directly to the hospital, whereas the
agency therapists took the other route via the referral
agencies. Unlike the staff therapists, the agency thera-
pists receive a higher hourly wage, but no fringe bene-
fits. They also receive their paychecks from the refer-
ral agencies, while the staff therapists are directly paid
by the Employer.
In Lee Hospital, 300 NLRB 947, 948 (1990), relied
on by the Regional Director, the Board recently re-
affirmed the governing principles for establishing joint
employer status. The Board stated that
[t]he appropriate standard for determining joint
employer status is whether two separate entities
share or codetermine those matters governing the
essential terms and conditions of employment.
Further, to establish such status there must be a
showing that the employer meaningfully affects
matters relating to the employment relationship
such as hiring, discipline, supervision, and direc-
tion. [Case citations omitted.]
Although Lee Hospital did not involve an employ-
ment referral agency’s relationship to the employees of
its customer, my colleagues and I agree that it squarely
focuses on what the critical inquiry should be in this
kind of situation.3 Hiring, discipline, supervision, and
direction are the key indicators. Interviewing the em-
ployees, checking their prior work references, and pre-
paring their paychecks is not sufficient to establish
joint employer status. See, e.g., Storall Mfg. Co., 275
NLRB 220 fn. 3 (1985). We also agree that the referral
agencies here do not have or exercise any responsibil-
ity or control in terms of the supervision and direction
of the agency therapists. The hospital alone assigns
and directs the agency therapists, establishes the labor
relations policies applicable to them, and uses its own
supervisors to exercise day-to-day control over them.
However, we disagree over whether the referral agen-
cies have a meaningful role in terms of hiring and dis-
ciplining the referred therapists. In my view, the an-
swer is clearly no.
My colleagues find that the referral agencies ‘‘hire’’
the agency therapists and can ‘‘discipline’’ them. How-
ever, the evidence does not support their finding. With
respect to hiring, the agency does the initial screening
of applicants and the necessary paperwork associated
with this process. But, the hospital management also
interviews the applicant, conducts the job orientation,
and alone makes the final hiring decision which cannot
be overridden by the agency. Thus, the agency’s serv-
ice to the hospital is not significantly different from
the tasks routinely done by a supervisor of a compa-
ny’s own personnel department or by a separate head-
hunting company who is interested in sending its cli-
ents possible candidates for hire. Regarding the dis-
cipline of agency therapists, there is no indication that
the agency can punish an agency therapist for any
work rule infractions at the hospital. Even in the case
of a refusal to work or repeated lateness, it is the hos-
pital which decides to terminate its relationship with
the therapist if he is to be fired. The agency does not
have the prerogative to remove him if the hospital pro-
tests. All that the agency can do is restrict its future
referrals of that individual or remove him from its re-
ferral lists. This has nothing to do with that therapist’s
employment at the hospital. The agency’s ability to af-
fect the therapist’s employment elsewhere is irrelevant
to whether the agency ‘‘share[s] or co-determine[s] the
595BROOKDALE HOSPITAL MEDICAL CENTER
1 Service Employees International Union, AFL–CIO, CLC and the
League of Voluntary Hospitals and Homes of New York filed ami-
cus briefs.
matters governing the essential terms and conditions of
employment’’ at the hospital.
Thus, applying the joint employer standard set forth
in Lee Hospital, I would find no joint employer status
between the employer and the various agencies with
respect to the referred respiratory therapists. Accord-
ingly, I would affirm the Regional Director’s Supple-
mental Decision.
APPENDIX
SUPPLEMENTAL DECISION
On December 26, 1991, I issued a Decision and Order
Clarifying Bargaining Units in which it was determined that
the bargaining unit for the Employer should be clarified to
include agency-referred respiratory therapists who exceed the
contractual definition for exclusion, i.e., those agency-re-
ferred therapists who regularly worked at the Employer in
excess of 1 workday a workweek.
Subsequently, on January 3, 1992, I issued an Order to
Show Cause why the Decision and Order should not be re-
considered in light of recent Board precedent which the par-
ties did not have an opportunity to brief. All interested par-
ties have had the opportunity to submit additional briefs.1 On
review and consideration of the briefs submitted, I have de-
cided to reconsider my Decision and Order Clarifying Bar-
gaining Units as set forth below.
In Lee Hospital, 300 NLRB 947 (1990), the Board de-
clined to find a joint employer relationship under cir-
cumstances parallel to those here. In view of the Board’s de-
cision in Lee Hospital and in reconsideration of facts pre-
sented in the instant case, I have decided to reverse my origi-
nal finding and conclusion regarding the joint employer find-
ing. I now conclude the agency-referred therapists are em-
ployees of the Employer and the unit should be clarified to
include them on that basis alone.
In reconsideration of the earlier decision, I have exten-
sively reviewed the lengthy transcript for any additional indi-
cia regarding the employee status of the agency-referred
therapists. The record reflects that at the time of the hearing
the Employer mainly utilized therapists originally referred by
the Ultracare and Midpoint Health Care Services, Inc. (Mid-
point) agencies. At the time of the hearing, the Employer and
Midpoint were operating under a written agreement effective
for the period from April 1990 through March 1991. This
agreement provided that the referred therapists were employ-
ees of Midpoint, that Midpoint would deduct Federal and
state payroll taxes and provide workers’ compensation, state
disability, and unemployment insurance. The agreement
leaves to the Employer the responsibility of establishing
guidelines necessary for performance including establishing
hours of work, vacation, holiday and sick leave, and notice
requirements in conjunction with the absence of personnel.
There is no written agreement between Ultracare and the
Employer. Under their arrangement the referred therapists are
considered employees of Ultracare, who deducts all taxes
from the referred therapists’ pay. Also Ultracare is respon-
sible for certain licensing requirements, liability and workers’
compensation insurance, health exams, and that the therapists
meet certain professional qualifications. Ultracare does not
provide unemployment insurance.
Except for determining the amount of pay due agency-re-
ferred therapists from the timesheets maintained by the Em-
ployer and distributing the pay checks, the record does not
demonstrate any additional responsibilities the agency exer-
cises with respect to the therapists who are regularly used by
the Employer, with respect to that employment.
In view of the above, and the information contained in my
initial decision, it appears clear that in applying the Board’s
decision in Lee Hospital a joint employer relationship does
not exist between the Employer and the referral agencies.
Joint employment is a status resulting from an interpretation
of law as assessed by the Board. It is a conclusion of law
reserved to the Board. In comparison, the relationship be-
tween the subcontractor in Lee (AAI) and the employees in
issue (CRNAs) is much greater than the relationship between
the agencies and the referred therapists. Thus, AAI was re-
sponsible for the supervision and evaluation of the CRNA’s
clinical performance on a daily basis. Representatives of AAI
controlled the decisions regarding the daily work assign-
ments, i.e., attendance, lunch and work breaks, and the length
of the workday for CRNAs. Representatives of AAI were
also involved in formulating policies regarding other terms
and conditions of employment such as vacation policies, re-
ducing scheduled work hours, department time schedules,
overtime compensation, and job qualifications. Representa-
tives of AAI also had the authority to discipline and transfer
CRNAs and participated in the hiring process. However, the
Board found that officials of Lee Hospital had primary re-
sponsibility for administrative and personnel matters, includ-
ing preparing work schedules, making regular overtime as-
signments, and determining the number of CRNAs to report
to work. Hospital officials could also change the assignments
of AAI without consultation. Among other things, hospital
officials scheduled vacations and handled requests for non-
emergency leave. The Board ultimately concluded the hos-
pital determined the essential terms and conditions of em-
ployment and labor relation policies for the CRNAs. Thus,
the Board found no joint employer relationship and con-
cluded the CRNAs were employees of the hospital.
In reviewing the relevant record evidence in the instant
case, I find and conclude that the agency-referred therapists
in issue are employees of the Employer. Thus, as noted in
my initial decision, for those agency-referred therapists regu-
larly used by the Employer, contact with the agency essen-
tially ceases with the Employer’s decision to utilize the
therapists referred. Afterwards, all matters concerning sched-
uling of the therapists, job and area assignments, supervision,
scheduling time off from the Employer, granting emergency
or unexpected time off from the Employer, and discipline
and retention by the Employer are controlled solely and ex-
clusively by representatives of the Employer. Although the
contract with Midpoint and arrangement with Ultracare pro-
vides that the therapists are employees of the agencies, this
assignment is not controlling before the Board. The deter-
mination of employee status is not left to the self-serving
agreements of the parties. Accordingly, on further reconsider-
ation, I find and conclude that the relationship between the
Employer and the referral agencies is similar to that found
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Under the provisions of Sec. 102.67 of the Board’s Rules and
Regulations, a request for review of this decision may be filed with
the Board in Washington, D.C. This request must be received by the
Board in Washington by April 10, 1992. Any party may waive its
right to request review by signing the attached waiver form and sub-
mitting it to the Board in Washington with a copy to the Regional
Director.
by the Board found existed in Storall Mfg. Co., 275 NLRB
220 (1985). Thus, the referral agencies are agents of the Em-
ployer in providing the therapists used by the Employer to
perform unit work. As part of their function, the agencies
provide services such as administrative paperwork, skill
qualifying, interviewing, reference, verification, payroll and
insurance related to the referred employees.
Accordingly, having found the agency-referred therapists
in issue are employees of the Employer, I conclude the con-
tractual unit should be clarified to include the therapists who
exceed the contractual definition for exclusion from the bar-
gaining unit.2