Flatbush Care Center

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 591 (N.L.R.B. 1993)

591
313 NLRB No. 73
FLATBUSH MANOR CARE
1 In denying Petitioner’s motions, the Board also carefully consid-
ered Intervenor’s letter and the amicus statements of SEIU and
AFSCME in support of the Petitioner’s position.
Flatbush Manor Care Center and Fair Manage-
ment Consulting Corp. and Local 1199, Drug,
Hospital and Health Care Employees Union,
Petitioner. Case 29–RC–7764
November 26, 1993
ORDER
The National Labor Relations Board has decided to
include in the bound volumes the attached Order,
which issued on August 19, 1993, and its Decision on
Review and Order, which issued on March 12, 1992.
By direction of the Board: John C. Truesdale, Exec-
utive Secretary.
ORDER
August 19, 1993
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Petitioner’s Motion to Consolidate this case with
Brookdale Hospital, 26–UC–149, is denied. Petition-
er’s Motion for Reconsideration of the Board’s Deci-
sion on Review and Order of March 12, 1992, is de-
nied as it raises no issues not previously considered
and it lacks merit. Petitioner’s Request for Oral Argu-
ment is also denied.1 The Special Appeal by S.S.I.
Agency, a non-party to this proceeding, for the Board
to stay the election and reverse the Regional Director
is denied as moot.
MEMBER DEVANEY, dissenting.
I would grant Petitioner’s Motion for Reconsider-
ation, as well as its Request for Oral Argument.
March 12, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The Request for Review by Schoen, the Temporary
Receiver of the Flatbush Manor Care Center, of the
Regional Director’s Decision and Direction of Election
is denied as it raises no substantial issues warranting
review. See, e.g., Stanley E. Stein, a Receiver for Holi-
day Inn Coliseum, 300 NLRB 631 (1990). Schoen’s
request to stay the election is also denied.
Fair’s Request for Review is granted solely with re-
spect to the issue of the inclusion of the LPNs pro-
vided to the Employer by agencies as it raises substan-
tial issues warranting review. Based on the Regional
Director’s findings, we conclude, contrary to the Re-
gional Director, that the Employer and the agencies re-
ferring the ‘‘pool’’ LPNs to the Employer, co-deter-
mine their essential terms and conditions of employ-
ment and are the joint employers of the pool LPNs
working at the Employer. The agencies recruit, hire,
and provide some orientation to the pool LPNs. The
Employer and the agencies agree to an hourly fee for
the use of the pool LPNs, but the agencies determine
their LPNs’ hourly wage. The agencies make social se-
curity, workers’ compensation, and disability insurance
deductions. Both the Employer and the agencies are in-
volved in discipline. The Employer may counsel an
unsatisfactory pool LPN and may request that the
agency not send that LPN back to the Employer, but
the agency determines whether the pool LPN will be
sent to another facility or terminated. The Employer
provides its own orientation and decides if it will ac-
cept LPNs sent by the agencies. The Employer assigns
and directs employees, establishes labor relations poli-
cies applicable to pool employees, and uses its own su-
pervisors to exercise day-to-day control over the pool
LPNs. The Employer determines hours and schedules
pool employees, but, at least with respect to Inter-
American, the agency may not allow the pool em-
ployee to work more than 40 hours per week. In these
circumstances, we find that the Employer and the re-
ferring agencies are joint employers. W. W. Grainger,
Inc., 286 NLRB 94 (1987), enf. denied other grounds
860 F.2d 244 (7th Cir. 1988).
Since we find the Employer and the agencies to be
joint employers of the pool LPNs, these LPNs must be
excluded from the unit found appropriate here. The
Board does not include employees of a joint employer
in the same unit with employees of a single employer,
without consent of the employers. Lee Hospital, 300
NLRB 947, 948 (1990), citing Greenhoot, Inc., 205
NLRB 250 (1973). See also International Transfer of
Florida, 305 NLRB 150 (1991). There is no indication
of such consent here. We therefore reverse the Rgional
Director and exclude the pool LPNs from the unit. In
all other respects, Fair’s Request for Review is denied.