Developmental Disabilities Institute, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 2001

334 N.L.R.B. 1166 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
Developmental Disabilities Institute, Inc., Employer-
Petitioner and Local 2413, Developmental Dis-
abilities Institute Teachers Association, New
York State United Teachers, AFT, AFL–CIO.
Case 29–UC–492
August 17, 2001
DECISION ON REVIEW AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On October 10, 2000, the Regional Director for Re-
gion 29 issued a Decision and Order Clarifying Unit in
the above-entitled proceeding in which he found that the
newly created position of “therapy assistant/psychology”
is an accretion to the existing bargaining unit of “instruc-
tional employees” employed by the Employer in its Chil-
dren’s Day Services program in Smithtown, New York.
Thereafter, in accordance with Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations, the
Employer filed a timely request for review, maintaining
that the therapy assistants/psychology are not an accre-
tion to the existing bargaining unit, because they do not
share a sufficient community of interest with members of
that unit. Further, the Employer maintains that the Re-
gional Director erred in applying the accretion standard
set forth in The Sun, 329 NLRB 854 (1999).
By Order dated December 20, 2000, the Board granted
the Employer’s request for review. There were no briefs
filed on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully reviewed the entire record, we have
decided to affirm the Regional Director’s decision. As
we discuss below, however, we find that the therapy as-
sistants/psychology do not constitute an accretion to the
existing bargaining unit; rather, we find that it is appro-
priate to clarify the existing unit to include this newly-
created classification because these employees perform
the same basic functions historically performed by the
members of the bargaining unit. See Premcor, Inc., 333
NLRB No. 164 (2001).
The facts are not in dispute. The Employer provides
educational, social, and health-related services for devel-
opmentally disabled children and adults. Its Children’s
Day Services program serves approximately 240 children
and young adults between the ages of 3 and 21. The ma-
jority, if not all, of the students in this program are autis-
tic.
The Employer and the Union have had a collective-
bargaining relationship for several years, covering a unit
of approximately 126 teachers and assistant teachers.
The most recent contract was effective from July 1,
1996, to June 30, 2000.1 In the late fall of 1999, the Em-
ployer created the position of therapy assis-
tant/psychology. Although the program employs other
therapy assistants in various departments—including
vocational, adaptive physical education, and opti-health
care—no therapy assistant classification has ever been
included in the bargaining unit. The Employer maintains
that the new therapy assistant/psychology position also is
a nonunit position, and it has not applied the contract to
the six employees presently in this classification.2
Most of the children in the Children’s Day Services
program exhibit some form of disruptive behavior which
occasionally is violent, and which interferes with their
ability to function in a regular classroom setting. These
children require intensive instruction in classes which
normally consist of six children, conducted by one
teacher and two assistant teachers. Individual education
programs [IEPs] are formulated by the Employer’s
committee on special education, together with the child’s
teacher and parent(s). Each child’s IEP charts a series of
short and long-term goals, including the modification of
disruptive behavior and the teaching of various skills,
which the teachers and teachers’ assistants are expected
to follow.
The collective-bargaining agreement provides that the
program’s teachers have overall responsibility for the
administration and educational maintenance of their
classes. They may not alter the IEPs of their students,
and they are expected to work closely with the psychol-
ogy supervisor. They are responsible for routing data
sheets to various managers, graphing some of the data,
and preparing various notes and summaries. The teach-
ers have varying degrees of expertise, have completed
either a B.A. or an M.A., and may or may not be certified
by the State. The teachers and assistant teachers are su-
pervised by the building principal who also is the assis-
tant director for administration.
Two assistant teachers are assigned to each regular
classroom. The Regional Director found that assistant
teachers substitute for the teachers when they are absent,
and that one, Barbara Bombace, substituted for her regu-
lar teacher for an extended period of time during the past
year. Duties and responsibilities of the assistant teachers
include, inter alia, assisting students upon arrival and

1 Historically, all employees covered by the contract have been in
one of two classifications: teacher and assistant teacher.
2 The Union filed an unfair labor practice charge in Case 29–CA–
23460, alleging, inter alia, that the creation of this position and the
failure to apply the contract to the employees occupying it, is a viola-
tion of Sec. 8(a)(5). The portion of the charge alleging the failure to
apply the contract has been held pending the disposition of the instant
case.
334 NLRB No. 143
DEVELOPMENTAL DISABILITIES INSTITUTE 1167
departure at school; collecting data on student behavior
and performance;3 providing one-on-one instruction and
small group instruction under the teacher’s direction; and
testing children on their understanding of various con-
cepts, such as quantity and the meaning of the word
“more.” The assistant teachers have ongoing training,
usually once a week. These sessions are held on two
different days, so that if someone is unable to attend on
one day, they can still attend the other session. They also
meet weekly with the psychology supervisor and some-
times with the speech and occupational therapist, to dis-
cuss a specific child’s progress and/or problems. Bom-
bace, who has been an assistant teacher since 1991, testi-
fied that she has written up behavioral protocols that had
been approved for implementation by the psychology
supervisor. However, Assistant Director Kim Tynan
stated that it is unusual for an assistant teacher to develop
protocols or to write up data sheets. According to the
Employer, Bombace’s added responsibilities were a re-
sult of her extensive experience and the fact that she
spent a considerable period of time substituting for her
regular teacher.
John Warner, director of Children’s Day Services, tes-
tified that the position of therapy assistant/psychology
was created to deal with six of the children whose behav-
ior had become so severely disruptive that it was affect-
ing the regular, six-student, classrooms. Their behavior
not only was interfering with the IEPs of the other chil-
dren, it was self-injurious and posed a threat to the safety
of the other children as well as to the teachers. Thus, the
position of therapy assistant/psychology was created in
order to provide one-on-one instruction for each of these
six children, and they were removed from the regular
classroom. Four of the children were placed in separate
rooms—each with an assigned therapy assistant. The
remaining two share one room with a separate therapy
assistant assigned to each. The Employer intends to re-
turn these children to the classroom once their destruc-
tive behavior has become manageable.4
The Employer filled the six new positions from within
the program. Two of the six were formerly assistant

3 This data includes, e.g., recording whether the child says “please”
or “thank you,” or exhibits a substantial degree of disruptive behavior
such as spitting or self-injury; and filling in a toilet training sheet which
includes every time the child goes to the bathroom. Most of the data
collected appears to be the same type of data collected by the disputed
therapy assistants.
4 At the time of the hearing, apparently one of the original six chil-
dren already was being reintroduced to the classroom. It was unclear
how much longer the other five would remain in the program or
whether other children will be placed in the program in the future.
teachers and one was a teacher.5 Warner testified that the
Employer was seeking individuals who previously had
demonstrated an ability to work with severely troubled
children. No academic degree was required, and al-
though the Employer maintained that the therapy assis-
tants are required to have extensive training, the record
showed that no special training was given to the indi-
viduals selected before they assumed these positions.6
The therapy assistants are supervised by team leader
Cindy Burger, who in turn reports to Tynan, who has an
M.A. in applied behavior analysis.7 They meet with their
team leader both before and after sessions with their pu-
pils. Tynan and the psychology supervisor often are at
these meetings as well. They also attend quarterly meet-
ings with the children’s parents and other therapists (e.g.,
speech or physical therapy).
The therapy assistants are expected to meet the school
buses when they arrive in the morning. They escort their
students from the bus to the classroom where they spent
most of the day alone with the child, monitoring and at-
tempting to lessen the severity of the disruptive behav-
ior—utilizing applied behavior analysis methods. They
record the child’s destructive behaviors on data sheets,
including the number of times the child engages in such
behavior. Subsequently, they or their team leader may
graph the results. The therapy assistants independently
may modify the child’s behavioral protocol during the
course of the day; however, they do not have the author-
ity to modify the child’s IEP. Once the disruptive behav-
iors have been brought under control, the therapy assis-
tant can introduce other educational activities, including
the teaching of communication skills.
It is well established that a unit clarification petition is
appropriate for resolving ambiguities concerning the unit
placement of individuals who come within a newly cre-
ated classification. Union Electric Co., 217 NLRB 666,
667 (1975); Bethlehem Steel Corp., 329 NLRB 241
(1999). In the instant case, the Union maintains that the
individuals filling the position of therapy assis-
tant/psychology have the same duties that have been per-
formed by, and are still being performed by, the assistant
teachers, including working in an intensive relationship
with specific students; monitoring and recording data on
the students in numerous activities; assisting the child in
a variety of ways; and attempting to lessen the severity of
the disruptive behavior in which these children engage.
5 There was no specific information about the other three who were
selected.
6 The record was not clear as to whether they participate in the ongo-
ing training described above.
7 It is unclear, however, who evaluates the therapy assistants.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
The Employer, on the other hand, contends that these
therapy assistants are not “instructional employees” be-
cause their principal activity is to modify disruptive be-
havior and not to provide classroom instruction. Further,
they have a significantly greater degree of initiative and
self-direction in the management and oversight of the
students than that of the assistant teacher, who works
under the direction and instruction of the teacher who is
responsible for the classroom.
We find that the therapy assistant/psychology classifi-
cation is properly included in the unit. As the record
establishes, and as the Regional Director found, the dis-
puted therapy assistants perform the same basic educa-
tional functions that historically have been performed by
bargaining unit members. In this regard, they work with
the same children formerly taught by the teachers and
their assistants. Further, since virtually all the students in
the program are challenged by varying degrees, the ther-
apy assistants/psychology, teachers, and assistant teach-
ers all utilize applied behavior analysis on a daily basis
both to modify behavior and to attain other educational
goals. All the children require intensive relationships
and monitoring. Further, the immediate goal of the ther-
apy assistants/psychology is to return each child to a
regular classroom situation, and their ultimate goals of
behavior modification and learning are the same as those
of the teachers and assistant teachers.
Similar data is collected and recorded for all the chil-
dren, using the same forms; and the therapy assistants,
like the teachers and assistant teachers, have frequent
contact with the psychology supervisor regarding the
progress of each child. Contrary to the Employer’s as-
sertion, there is no evidence that these therapy assis-
tants/psychology have been more intensively trained than
the assistant teachers who have weekly training sessions.
Further, although the therapy assistants/psychology may
have more autonomy than the assistant teachers, the
teachers are granted at least as much discretion in the
manner in which they run their classrooms. As the dis-
puted therapy assistants/psychology perform the same
functions that historically have been performed by unit
employees, we find that they are appropriately included
in the unit. Premcor, supra.
While we agree with the Regional Director that the
unit should be clarified to include the classification of
therapy assistant/psychology, we disagree with his appli-
cation of an accretion analysis and his finding that they
are an “accretion” to the unit.8 Once it is established that

8 As we recently discussed in Premcor, supra, in the traditional ac-
cretion analysis, the Board examines community-of-interest factors to
determine whether the employees at issue may constitute a separate
appropriate unit or constitute an accretion to the existing bargaining
a new classification is performing the same basic func-
tions as a unit classification historically had performed,
the new classification is properly viewed as belonging in
the unit rather than being added to the unit by accretion.
Premcor, supra. Accordingly, an accretion analysis in
these circumstances is inapplicable.9
ORDER
The contractual collective-bargaining unit covering all
the instructional employees at the Developmental Dis-
abilities Institute represented by Local 2413, Develop-
mental Disabilities Institute Teachers Association is
clarified to include the position of therapy assis-
tant/psychology.

CHAIRMAN HURTGEN, concurring.
I concur in the result. However, I wish to limit the
holding of this case.
The majority states:

Once it is established that a new classification is
performing the same basic functions as a unit classi-
fication historically had performed, the new classifi-
cation is properly viewed as remaining in the unit
rather than being added to the unit by accretion.

I agree that where a new classification clearly falls
within a unit description, and the employees in that new
classification are employed at the unit facility, these em-
ployees are in the unit, and no “accretion” analysis is
required. In the instant case, the unit covers “instruc-
tional employees.” Previously, only teachers and assis-
tant teachers fell within that category. In my view, the
new position of therapy assistant/psychology clearly falls
within the term “instructional employee.” These em-
ployees “instruct” the students just as teachers do, albeit
they deal one-on-one with students who have particularly
severe problems.
In the above-limited circumstances, i.e., where new
employees clearly fall within the unit description, I agree
that an accretion analysis is not necessary.1 However,

unit. 333 NLRB No. 164, slip op. at 2. See also Towne Food Sales,
270 NLRB 311 (1984).
Chairman Hurtgen agrees with his colleagues that the case does not
involve the accretion doctrine. He does not agree that an ordinary
“community of interest” analysis is used in accretion cases. See his
dissenting opinion in The Sun, supra, which sets forth his views on
accretion.
9 The accretion analysis used in this case by the Regional Director is
inapplicable in any event. As the Employer points out, The Sun, relied
on by the Regional Director, involved a bargaining unit which was
functionally described. In the instant case, the unit is not functionally
described. See Archer Daniels Midland Co., 333 NLRB No. 81 (2001).
1 See Premcor, Inc., 333 NLRB No. 164. In that case, the unit de-
scription included production and maintenance employees, and the
position of Operator I fell within the scope of the unit. The Operator I
DEVELOPMENTAL DISABILITIES INSTITUTE 1169
the mere fact that a new classification performs “the
same basic functions as a unit classification historically
had performed” is insufficient to dispense with an accre-
tion analysis. That is too slippery a slope. It would in-
clude, for example, employees who work at a different

classification was being eliminated and the new classification would
perform essentially the same functions as the Operator I.
facility, or employees who are functionally similar to
unit employees but who do not fit within the unit descrip-
tion. In such cases, I would employ an accretion analy-
sis. And, in my view, a finding of accretion depends
upon an “overwhelming community of interest.”2
2 See my dissent in The Sun, 329 NLRB 854 (1999).