Columbus Area Community Mental Health Center, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1340 (N.L.R.B. 1987)

1340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Columbus Area Community Mental Health Center,
Inc. and District 1199 WV/KY/OH National
Union of Hospital and Health Care Employees,
AFL-CIO, Petitioner. Case 9-RC-15090
30 November 1987
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On a petition filed under Section 9(c) of the Na-
tional Labor Relations Act, a hearing was held
before Hearing Officer Bruce Meizlish. On 27
April 1987,1 pursuant to Section 102.67 of the Na-
tional Labor Relations Board Rules and Regula-
tions, the Regional Director for Region 9 trans-
ferred this proceeding to the Board for resolution
of the issue whether to assert jurisdiction over the
Employer based on Res-Care, Inc.2 and Long
Stretch Youth Home.3 Thereafter, the Petitioner and
the Employer filed briefs with the Board.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this proceeding, the
Board finds:
1. The Employer is an Ohio corporation engaged
in the business of operating mental health care fa-
cilities in Columbus, Ohio. The Employer has an
annual gross volume of business in excess of $1 mil-
lion and purchases and receives goods and materi-
als valued in excess of $25,000 from suppliers locat-
ed in the State of Ohio, which, in turn, purchase
and receive the goods and materials at their loca-
tions in Ohio directly from points outside the State
of Ohio.
2. District 1199 WV/KY/OH National Union of
Hospital and Health Care Employees, AFL-CIO is
a labor organization within the meaning of Section
2(5) of the Act.
3. The labor organization involved claims to rep-
resent certain employees of the Employer.
4. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
5. The Employer contends that the Board should
not exercise jurisdiction over it because it is unable
to engage in meaningful collective bargaining. We
find that it would effectuate the purposes and poli-
' A hearing in this matter was held on 2 April 1987
2 280 NLRB 670 (1986) (Member Stephens concurring and dissenting).
8 280 NLRB 678 (1986) (Chairman Dotson dissenting , Member Ste-
phensconcurnng)
cies of the Act to assert jurisdiction over the Em-
ployer.
In Res-Care, the Board reaffirmed the basic two-
fold inquiry enunciated in National Transportation
Service4 for determining when to assert jurisdiction
over an employer providing services to or for an
exempt entity. Further, the Board stated that it
would examine not only the control over essential
terms and conditions retained by the employer, but
also the scope and degree of control exercised by
the exempt entity over the employer's labor rela-
tions, to determine whether the employer is capa-
ble of engaging in meaningful collective bargain-
ing.
In ARA Services,5 the Board analyzed Res-Care
as follows. The Board concluded in Res-Care that
it was the exempt entity (the Department of Labor)
that, in every sense, retained the ultimate discretion
for setting wage and benefit levels; thus, the
exempt entity effectively precluded the employer
from engaging in collective bargaining. Although
the employer initially set the wage and benefit
levels for each job classification in its operating
budget, the Board noted that the budget required
approval by the exempt entity and, once approved,
became the basis for the contract price. In addition,
the employer was required to obtain approval from
the exempt entity of the wage ranges to be paid to
the employer's employees, including a maximum
for each classification, and the substantive terms of
several employee benefits. The contract specifically
provided that any proposed changes in the ap-
proved wage ranges or fringe benefit plans had to
be submitted to the exempt entity for approval,
along with any proposed changes in the staff man-
ning table, labor grade schedule, or salary sched-
ule.
In the instant case, the Employer is a private,
nonprofit Ohio corporation established in 1965 that
principally provides long-term care for severely
mentally handicapped individuals. The Employer is
governed by a board of trustees that consists of ap-
proximately 26 members. The board of trustees
votes on trustee nominees and none of the repre-
sentatives of the board of trustees is appointed by
or subject to approval of any governmental
agency. The trustees meet once each month and
are responsible for establishing the Employer's
policy. The trustees hire the Employer's executive
4 240 NLRB 565 (1979) In National Transportation Service, the Board
majority stated that the inquiry is "whether the employer itself meets the
definition of `employer' in Section 2(2) of the Act and, if so whether
the employer has sufficient control over the employment conditions of its
employees to enable it to bargain with a labor organization as their repre-
sentative." 240 NLRB at 565
5 283 NLRB 602 (1987)
286 NLRB No. 130
COLUMBUS MENTAL HEALTH CENTER 1341
director who, in turn, hires the rest of the staff.
The executive director is responsible for the day-
to-day operations of the center. The executive di-
rector hires and fires employees without the trust-
ees' approval. All labor relations decisions are
made in-house.
The Employer receives its funds from the Frank-
lin County Mental Health Board6 (the 648 Board),
Medicaid, and third-party and private pay sources.
The 648 Board furnishes 83 percent of the Employ-
er's funding. To obtain 648 Board funding, each
year the trustees approve a budget, including pro-
jected revenues from other sources, which is then
submitted to the 648 Board. The Employer's
budget provides for proposed labor expenditures
for the year, including salaries for each employee,
salary increases, and fringe benefits. The 648 Board
has never disapproved the salary schedules. The
Employer's personnel manual is not subject to the
648 Board's approval.
The 648 Board enters into a contract with the
Employer funding the services7 the 648 Board has
selected for the Employer to provide. The contract
sets the amount the Employer may charge for serv-
ices and requires the 648 Board 's approval to
change programs or services . The Employer is paid
only for the units of service actually provided. If
unit costs are below projection, actual costs are
paid. If unit costs are above projection, only pro-
jected costs are paid. The Employer need not ask
permission to give raises while in midcontract with
the 648 Board. As long as the Employer abides by
the terms of the 648 Board contract, it can allocate
funds as it wishes.8 The Employer can give raises
in excess of the 648 Board funding and can create
new positions if it can obtain the necessary funding
through other sources.
The 648 Board has adopted a new program,9
which apparently will increase the 648 Board's
direct participation in the day-to-day management
of facilities, providing services for the severely
mentally disabled. Seventy-five percent of the Em-
ployer's business falls within the program. The pro-
gram was in the early stages of its implementation
at the time of the hearing. There is initially a 5-
year phase-in period. The Employer's allocation of
funds for 1987 was not affected by the program be-
cause it was approved in 1985 . Under the program,
the 648 Board's area of authority would include
how treatment teams operate, which services are
delivered and in what manner, and salaries and
benefits.
We find under these circumstances that the
exempt entity does not exercise such control over
the Employer's labor relations policies as would
remove the Employer's control over decisions af-
fecting the "core group of `basic bargaining sub-
jects,"' and thereby prohibit meaningful bargain-
ing.10 Res-Care, supra. Further, unlike the situation
in Res-Care, there are no line-by-line budgetary
controls imposed on the Employer by the 648
Board. Id. The Employer is free to determine for
itself any increases in wages and/or benefits as long
as costs do not rise above the contractually speci-
fied level and the Employer has sufficient funds
earned from the 648 Board contract or other
sources. As noted above, the 648 Board has never
disapproved the Employer's proposal for salaries,
wage increases , or fringe benefits. Further, the Em-
ployer has exclusive control over the hiring, firing,
promotion, and disciplinary policies at the facility.
Based on the above, we find that the contractual
limitations imposed by the 648 Board do not sub-
stantially affect the Employer's ultimate discretion
over wage and benefit levels. Long Stretch Youth
Home, supra. We therefore conclude-that the Em-
ployer retains substantial control over all economic
matters that are central to the employer-employee
relationship and that enable it to engage in mean-
ingful collective bargaining, and that it will effectu-
ate the purposes of the Act to assert jurisdiction."
In accordance with the parties' stipulations at
hearing, we shall direct separate elections in the
following voting groups:
(a) All office clerical employees, custodial em-
ployees and all other employees employed at the
Employer's 1515 E. Broad Street, Columbus, Ohio
facility, but excluding all professional employees,
guards and supervisors as defined in the Act.
(b) All professional employees employed at the
Employer's 1515 E. Broad Street, Columbus, Ohio
facility, but excluding all office clerical employees,
confidential employees, managerial employees,
guards and supervisors as defined in the Act.
The employees in the professional voting group
(b) will be asked two questions on their ballots:
(1) Do you desire to be included in the same unit
as other employees in the Employer's 1515 E.
6 This entity is a political subdivision of the State of Ohio.
4 The contract addresses services on the basis of units A unit of serv-
ice is I day of care Labor cost is the largest cost element of a unit
8 Although the contract specifies a level above which unit costs may
not rise, it appears from the record that the Employer retaMs some
degree of latitude in its ability to raise wages above the budget level
9 This program is referred to throughout the record and accompanying
documents as the Robert Wood Johnson pioposal
10 Changes that might be made under the Robert Wood Johnson pro-
posal were speculative at the time of the hearing The changes that al-
ready had been made do not significantly impinge on the Employer's
control over its labor relations policies, which we note above and below
11 Pursuant to his dissenting opinion in Res-Care, Inc, 280 NLRB 670
(1986), Member Stephens agrees that we should assert jurisdiction over
this Employer
1342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Broad Street, Columbus, Ohio facility for the pur-
poses of collective bargaining?
(2) Do you desire to be represented for the pur-
poses of collective bargaining by District 1199
WV/KY/OH National Union of Hospital and
Health Care Employees, AFL-CIO?
If a majority of the professional employees in
voting group (b) vote "Yes" to the first question,
indicating their wish to be included in a unit with
the nonprofessional employees , they will be so in-
cluded. Their votes on the second question will
then be counted together with the votes of the
nonprofessional voting group (a) to decide the rep-
resentative for the whole unit . If, on the other
hand, a majority of the professional employees in
voting group (b) do not vote for inclusion, they
will not be included with the nonprofessional em-
ployees, and their votes on the second question
will then be separately counted to decide whether
they desire District 1199 WV/KY/OH National
Union of Hospital and Health Care Employees,
AFL-CIO to represent them in a separate profes-
sional unit.
Our unit determination is based in part, then, on
the results of the elections . However, we now
make the following findings in regard to the appro-
priate unit:
(1) If a majority of the professional employees
vote for inclusion in a unit with nonprofessional
employees, we find that the following employees
will constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All office clerical employees, custodial em-
ployees and all other employees, including
professional employees, employed at the Em-
ployer's 1515 E. Broad Street, Columbus, Ohio
facility, but excluding all confidential employ-
ees, managerial employees , guards and supervi-
sors as defined in the Act.
(2) If a majority of the professional employees
do not vote for inclusion in the unit with nonpro-
fessional employees , we find that the following two
groups of employees will constitute separate units
appropriate for collective bargaining within the
meaning of Section 9(b) of the Act:
(a) All office clerical employees, custodial
employees and all other employees employed
at the Employer's 1515 E. Broad Street, Co-
lumbus, Ohio facility, but excluding all profes-
sional employees, guards and supervisors as
defined in the Act.
(b) All professional employees employed at
the Employer's 1515 E. Broad Street, Colum-
bus, Ohio facility, but excluding all office cler-
ical employees, confidential employees, mana-
gerial employees , guards and supervisors as
defined in the Act.
[Direction of Election omitted from publication.]