D.T. Watson Home for Crippled Children

National Labor Relations Board - Board Decisions

Jun 22, 1979

242 N.L.R.B. 1368 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. T. Watson Home For Crippled Children and Dis-
trict 1199P, National Union of Hospital and Health
Care Employees, a Division of RWDSU, AFL-
CIO, Petitioner. Case 6-RC-7933
June 22, 1979
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer George W. Loveland
II on August 18, 19, and 23, 1977. Following the
hearing and pursuant to Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations,
Series 8, as amended, this case was transferred to the
National Labor Relations Board for decision. There-
after, the Employer and the Petitioner filed briefs in
support of their respective positions.
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 reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer' is a nonprofit Pennsylvania cor-
poration engaged in providing health care and educa-
tion services for physically handicapped, brain dam-
aged, and mentally retarded children between the
ages of 5 and 21.
The Home occupies an 85-acre site in Leetsdale,
Pennsylvania. There, its activities are centered in a
large main building which houses a hospital and 12
classrooms-the major portion of the space being de-
voted to health care facilities, including various ther-
apy rooms and wards where the resident children live.
The Home receives authority to operate from the
Pennsylvania Department of Health, is certified as a
hospital by the Joint Committee on Accreditation,
and is a member of the American Hospital Associ-
ation and a number of regional hospital organiza-
tions. In addition, it is licensed by the Pennsylvania
Department of Education to operate a private aca-
demic school in special education and has received
approval from that agency for its programs for brain
damaged, cerebral palsied, and muscular dystrophic
children-which approval validates the Home's eligi-
bility to receive state payments as an approved school
I Also referred to hereinafter as the Home.
for the education of exceptional children. The De-
partment of Health inspects the Home annually and
the Department of Education conducts an onsite
evaluation of its operations once every 5 years.2 The
Home submits no annual reports to the Department
of Education, but does furnish that agency with its
school calendar, a yearly projection of student enroll-
ment, and a quarterly list of students actually en-
rolled.
The Home provides both health care and education
for some children and health care alone for others.
Annually,3 approximately 145 children receive both
health care and educational services. Ninety of them
are residential student/patients who are generally
confined to bed in hospital wards 24 hours per day, 7
days per week, except for 5 hours each school day
when most of them are transported to classroom set-
tings. The remaining 55 are day student/outpatients 4
who are brought to the Home each school day to
attend classes. Although it is not entirely clear from
the record, it appears that most, if not all, of the day
students are categorized as either "cerebral palsied"
or "brain damaged," regularly receive health care re-
lated services, and are considered to be outpatients
(as well as students) and are so designated on the
patient charts which the Home keeps for them.
Health care alone (with no accompanying educa-
tional services) is provided for a considerable number
of additional children, including 59 resident partici-
pants in the Home's summer program, 12 respite care
patients,5 and a substantial but unspecified number of
hospital outpatients6 who are provided with medical
and dental services, physical therapy, occupational
therapy, speech and perception therapy, an infant
stimulation program, and the facilities of the Home's
brace shop.
While not attending classes, the resident children
live in the hospital wards where they are bathed, fed,
and given medication by nurses aides and licensed
practical nurses (LPNs) who also regularly check on
blood pressure, respiration, temperature, insert and
remove catheters, and administer injections. The
aides and LPNs perform functions of the same type
2 The Department of Education evaluation is mandatory al least once
every 5 years and, therefore, may occur more often. In fact. it has not
3 Most of the record evidence detailing the Home's operations and fi-
nances pertain to the fiscal year ending June 30, 1976.
'Referred to hereinafter as "day students."
Respite care patients are children in need of close medical attention after
undergoing major surgery at an acute health care facility. As they accumu-
lated a total of 442 hospital days. it appears that their average stay was 37
days.
6 The Employer's director of finance testified that the Home's records do
not reflect the number of such outpatients serviced, but do disclose that
charges for services endered them amounted to 8- I/2 percent of revenues. If
the 8-1/2 percent cited was a percentage of payments received for specifi-
cally medical services, the annual amount derived from these outpatients
would exceed $60.000. If it is a percentage of operating revenues or total
revenues, the sum would he considerably higher.
242 NLRB No. 187
1368
D. T. WATSON HOME FOR CRIPPLED CHILDREN
as would persons in those classifications in general
hospitals. A wide variet) of consultations by physi-
cians are also performed and, as indicated, the brace
shop is utilized by both residents and outpatients. In
addition, there is a complete staff of dietary employ-
ees and specialists in the areas of hydrotherapy. phys-
ical therapy, occupational therapy, and speech ther-
apy. The Home's educational services include the
basic subjects taught by public schools, as well as
such specialized subjects as music therapy. perceptual
therapy, and gross motor training. As few of the resi-
dent children are ambulatory, nurses aides transport
them to and from the classrooms in wheelchairs or on
stretchers.
The Home maintains a staff of approximately 190
employees, 43 of whom work directly in the educa-
tional program. Of the latter, 12 are certified teachers
and the remaining 31 are teacher assistants and
school aides. The health care related employees in-
clude registered nurses, LPNS, nurses aides, various
types of therapy aides and instructors, housekeeping,
dietary, laundry, and maintenance employees. In ad-
dition, there are 6 active staff physicians and another
12 physicians whose services are utilized on a consult-
ing basis.
Operations of the Home are under the overall di-
rection and control of its executive director, an indi-
vidual whose education and experience are in the
field of hospital administration. Reporting to him are
the heads of various departments, including a director
of education who is in immediate charge of the school
program. All ultimate authority rests in a self-perpet-
uating board of trustees. None of its members is a
representative of any governmental entity and state
agencies exercise no control over the board's selection
or composition. The board alone has authority to set
employee wages and benefits, and they are not regu-
lated in this regard by the State. Furthermore, the
Home has full control over the hiring, firing, and dis-
ciplining of its employees, and there is no governmen-
tal impact with respect to these decisions, except for
the setting of such basic standards as requiring that
teachers have certifications appropriate to their as-
signments.
Of the 145 children who are provided with educa-
tional services, the vast majority are referred and ap-
proved by the Pennsylvania Department of Educa-
tion which, in accordance with the provisions of
applicable statutory law and department regulations,
reimburses the Home for a substantial portion of the
costs incurred for the tuition and maintenance of
these children.7 Neither the Department of Education
7 Department of education approval of a child's placement at the Home is
a prerequisite for state tuition and maintenance payments. But such ap-
proval is not required for a child's enrollment if the costs are to be funded
entirely by its parents or fully assumed by the child's school district.
nor any other governmental entity has any input in
the formation or implementation of the Home's budg-
ets or expenditures. However, some months after the
end of each fiscal year the department of education
audits the Home's budget for the previous year to
determine the reasonableness of the expenditures
which the Home has allocated to the education and
maintenance costs of these children, with the costs
approved by the department forming the basis for de-
termining the amount of the Home's entitlement to
reimbursement. For the 1975-76 fiscal year, the
Home's approved costs were well in excess of the stat-
utorily established maximum payments per child and,
therefore, the costs disapproved by the department
had no net effect upon the total amount of costs to be
reimbursed.
Since the Home is prohibited from charging par-
ents for any of the education and maintenance costs
of children whose enrollment has been governmen-
tally approved, the difference between the costs in-
curred by the Home and the amount of state reim-
bursement is made up from other funds-particularly
the Home's considerable endowment income, cited
infra. Thus, in budgeting its overall expenses. the
Home takes into consideration sources of income in
addition to that which it expects to recieve from the
Commonwealth of Pennsylvania. We also note that.
both at the time the budget is established and during
the year when expenses based thereon are incurred,
the Home has no sure knowledge as to the amount
the State will pay as the department of education
does not commence its budget review until well after
the fiscal year has ended and the Home appears to
have no budgetary consultations with any govern-
mental agency prior thereto.
For the fiscal year ending June 30, 1976, the Home
had gross revenues of $2,100,000, of which: (1) 33
percent was received from the Commonwealth of
Pennsylvania: (2) 3 percent came from other States
which enrolled children at the Home: (3) 34 percent
represented receipts for medical services which were
largely derived from health insurance company pay-
ments made on behalf of the parents of children re-
ceiving such services: and (4) 30 percent came from
' The Home's total costs for the year approximated $2.100.000. of which
the department of education approved all but $SS50.000. Of the balance, the
department allocated S946.650 to "educational costs" which would be eligi-
ble fior reimbursement and the balance to "hospital costs" which would not.
However. as the approved "educational costs" exceeded the statutorily es-
tablished per child maximum reimbursement levels (8.500 per enrolled res-
idential child. 5,100 per cerebral palsied day student. and 4.100 per brain
damaged day student), the Home's total entitlement to reimbursement was
reduced accordingly to 753,405. And that latter amount was subsequently
reduced by 10 percent because of a shortfall in the State's funding for the
program.
Of the S150.000 of expenses disapproved by the Department of Education,
oser half appear to be expenditures for which the Home had received grants
or prior reimbursement from other sources, and none appear to be related to
the grant of increases in wages or benefits for employees
1369
D LCISIONS OF NATIONAL. LABOR RELATIONS BOARD
income on the Home's endowment funds, grants, and
contributions. During the same period, the Employer
purchased goods and supplies valued in excess of
$50,000 directly from sources located outside the
Commonwealth of Pennsylvania.
The Employer, citing Overbrook School b/or the
Blind, 213 N IRB 511 (1974), and Pennsylvvania School
Jbr the Deafj, 213 NLRB 513 (1974), contends that the
Board should decline to assert jurisdiction herein. In
those cases, the Board refused to assert jurisdiction
over private nonprofit schools for blind and deaf chil-
dren essentially on the basis that such schools were
adjuncts to the public school system because they
provided state-mandated education in satisfaction of
the State's statutory obligation and declared purpose
to provide educational opportunities to handicapped
children. More recently, however, in National Tran.s-
portalion Service, Inc., 240 NLRB 565 (1979), we indi-
cated that--when ascertaining whether jurisdiction
should be asserted over an employer which appears to
maintain close ties to an exempt governmental en-
tity-we shall no longer decline jurisdiction solely be-
cause of the relationship between the "purposes" of
the exempt entity and the nature of the services pro-
vided to it by such an employer. Rather, for the rea-
sons expressed therein, we decided to henceforth re-
solve such jurisdictional questions by first
determining whether the subject employer itself meets
the definition of "employer" in Section 2(2) of the Act
and if it does-then determining whether that em-
ployer has sufficient control over the employment
conditions of its employees to enable it to bargain
with a labor organization which represents them. Ac-
cordingly, to the extent that they are inconsistent
herewith, the cases cited by the Employer are no
longer controlling.
Applying the above-noted principles to the instant
case, we note that it is undisputed that the Employer
is not an exempt governmental subdivision. With re-
spect to the Home's control over the employment
conditions of its employees, the Employer asserts that
the auditing of its budget by the department of educa-
tion and the satutorily prescribed maximums on state
reimbursement for tuition and maintenance expenses
effectively limit its expenditures for employee wages
and benefits. However, it is clear from the record that
these limitations do not prohibit the Home from
granting increased wages and benefits. Rather, the
Home need only get state approval in order to secure
full reimbursement of the additional costs incurred. It
is in no way prevented from utilizing its funds from
other sources to cover expenditures which will not be
state-reimbursed. And the testimony shows that, in
fact, the Employer knowingly provides educational
services substantially in excess of that which will be
funded by the Commonwealth of Pennsylvania.
Moreover, neither the department of education nor
the school districts exercise any appreciable control
over the Home's employees with respect to hiring,
firing, supervision, or discipline.
On the basis of the facts set forth above, we find
that the Employer, which is not itself a government
entity, retains sufficient control over the employment
conditions of its employees to enable it to bargain
with a labor organization as the representative of its
employees.
The Employer, operating facilities for the treat-
ment and education of handicapped children, is
clearly a health care institution within the meaning of
Section 2(14) of the Act.' Inasmuch as its gross an-
nual income well exceeds the $250,000 jurisdictional
standard which the Board has established for this
type of health care institution, we find that the impact
of the Employer's operations on commerce is suffi-
cient to warrant assertion of jursidiction herein and
that it will effectuate the purposes of the Act to do so.
2. The parties stipulated, and we find, that the Pe-
titioner is a labor organization within the meaning of
Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time service, main-
tenance, and technical employees including die-
tary department employees, housekeeping em-
ployees, laundry employees, maintenance
employees, nurses aides, physical therapy aides,
brace shop employees, school aides, teacher as-
sistants, licensed practical nurses, certified occu-
pational therapy aides and hydrotherapy instruc-
tors; excluding all other employees, clerical
employees, guards, professional employees, and
supervisors as defined in the Act.
Accordingly, we shall direct that an election be
held among the employees in the unit found appro-
priate.
[Direction of Election and Excelsior footnote
omitted from publication.]
9 See Resident Home for the Mentally Retarded o/ almilton (Count, Inc..
239 NIRB 3 11978; Wods Schools, 219 NLRB 242 (1
97
5). and Beterlt
Farms Foundation, 218 NLRB 1275 (1975). We note that these cases involved
institutions for the education and treatment of mentall, retarded and phssi-
call) handicapped children which provide a suhstantially lesser degree of
direct medical care than does the employer herein
1370