Herbert Lipton Community Mental Health Center

National Labor Relations Board - Board Decisions

Sep 18, 1981

258 N.L.R.B. 38 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Mental Health Association of North Central
Massachusetts, Inc. d/b/a Herbert Lipton Com-
munity Mental Health Center' and Health
Care Division, Local No. 285, Service Employ-
ees International Union, AFL-CIO, 2 Petitioner.
Case 1-RC-17272
September 18, 1981
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Robert D.
McGrath on April 28 and May 6 and 13, 1981. 3
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board's
Rules and Regulations, Series 8, as amended, this
case was transferred to the National Labor Rela-
tions Board for decision. Thereafter, the Employer
and Intervenors Massachusetts Nursing Associ-
ation, Local 509, Service Employees International
Union, AFL-CIO, and the Commonwealth of Mas-
sachusetts Office of Employee Relations filed
briefs.
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
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
I. The Mental Health Association of North Cen-
tral Massachusetts (hereinafter the Association or
the Employer) is a private nonprofit corporation
organized under the laws of Massachusetts. In ad-
dition to other functions, it operates the Herbert
Lipton Community Health Center (hereinafter the
Center). The Center at its four locations provides a
comprehensive array of community mental health
related services, including prevention, treatment,
and rehabilitation, covering a 15-town area. The
Association and the Center operate, in part,
The Employer's name appears as amended at the hearing.
2 The Petitioner's name appears as amended at the hearing.
a The Department of Mental Health and the Office of Employee Rela-
tions of the Commonwealth of Massachusetts, the Massachusetts Nursing
Association, and Local 509, Service Employees International Union,
AFL-CIO, were permitted to intervene. The Massachusetts Nursing As-
sociation and Local 509, Service Employees International Union, AFL-
CIO, because of their representation of certain Commonwealth employ-
ees, intervened solely for the purpose of contesting the assertion of juris-
diction; they do not seek to appear on the ballot with the Petitioner.
258 NLRB No. 5
through a partnership agreement with the Com-
monwealth of Massachusetts.
The Employer, the Petitioner, the Office of Em-
ployee Relations, and the Departement of Mental
Health contend that the Board should properly
assert jurisdiction in this matter and find appropri-
ate a unit of professional employees.
The Massachusetts Nursing Association (herein-
after the MNA), which represents certain Com-
monwealth employees assigned to the Center under
the partnership agreement, contends that the Em-
ployer and the Commonwealth are joint employers.
The MNA further asserts that the Board lacks ju-
risdiction because, as a joint employer, the Em-
ployer would share with the Commonwealth its
statutory exemption under Section 2(2) of the Act.
It is the position of Local 509, Service Employ-
ees International Union, AFL-CIO (hereinafter
Local 509), which also represents Commonwealth
employees assigned to the Center, that all employ-
ees of the Center are employees of the Common-
wealth because of the various funding arrange-
ments.
The Petitioner does not seek to represent Com-
monwealth employees who are assigned to the
Center, some or all of whom are represented by
Local 509 and the MNA under collective-bargain-
ing agreements with the Commonwealth.
As we stated in National Transportation Service,
Inc.,4 we will no longer utilize the so-called inti-
mate connection standard for ascertaining whether
the Board's assertion of jurisdiction over an em-
ployer with close ties to an exempt entity is war-
ranted. Instead, we said that, in future cases involv-
ing a determination of whether the Board should
assert jurisdiction in such situations, we shall deter-
mine whether the employer itself meets the defini-
tion of "employer" in Section 2(2) of the Act and,
if so, determine whether the employer has suffi-
cient control over the employment conditions of its
employees to enable it to bargain with a labor or-
ganization as their representative.
Applying these principles to this case we find the
following:
The Association was incorporated in 1951 and
thereafter operated a mental health clinic in Fitch-
burg, Massachusetts. The Association is governed
by an independent board of directors who are
elected by the members of the Association. As
stated in article 2, section 1, of the Association's
bylaws, "Any person, association, corporation,
partnership, firm, fiduciary or estate having an in-
terest in promoting the Association's purposes shall
be eligible for membership."
4 240 NLRB 565 (1979).
38
HERBERT LIPTON COMMUNITY MENTAL HEALTH CENTER
In the early 1970's the Association executed a
partnership contract with the Department of
Mental Health (hereinafter DMH). The partnership
agreement concept originated from a decision by
the Commonwealth to provide statutorily mandat-
ed mental health services through community-
based facilities, essentially through a loan of Com-
monwealth employees to various organizations en-
gaged in providing community-based services. The
partnership contract entered into between the As-
sociation and the DMH is renewed annually. The
form and the content of the contract are prenego-
tiated by a group known as the Coalition of Com-
munity Health Partners.
At the same time the Commonwealth contracts
were started, the Association received a Federal
grant as a result of organizing itself as a community
mental health center under Federal guidelines.
Thus, from a small clinic with less than 25 employ-
ees, the Center has grown to 184 employees plus
41 Commonwealth employees loaned under the
partnership agreement.
The facilities operated by the Center are either
the property of the Association or leased. The
equipment used in the facilities is the property of
the Association even though some of it may have
been purchased by funds received from the Com-
monwealth or the Federal Government.
The Center has a wide variety of income sources
that are not in any way related to DMH funds
from the partnership agreement. These include var-
ious grants and other contracts with other depart-
ments of the Commonwealth and with the Federal
Government. Funds are also received from various
organizations and agencies in the community.
Other sources include fees derived from insurance
companies, Medicaid, client payments, and contri-
butions. A little more than half of the Center's
funds come from the Commonwealth under the
partnership agreement.
The partnership agreement between the Employ-
er and the Commonwealth specifies the geographic
area the Center is required to serve; the hours of
operation; the type, level, and amount of services;
the support services required of the Center; and the
classification, salary, and hours of Commonwealth
employees on loan to the Center.
While the Petitioner does not seek to represent
Commonwealth employees assigned to the Center,
discussion of their circumstances is relevant to
whether jurisdiction should be asserted. Under the
partnership agreement the Commonwealth pays the
salaries, travel expenses, and cost of fringe benefits
of employees loaned or assigned to the Center.
These employees are covered also by the personnel
policies of the Commonwealth or, if applicable,
collective-bargaining agreements with the Com-
monwealth covering such employees. The Center's
management provides only clinical and administra-
tive supervision of Commonwealth employees.
Thus, while the workload of Center and Common-
wealth employees is the same, other terms and con-
ditions of employment differ.
Commonwealth employees are paid directly by
checks from the Commonwealth. Some Common-
wealth employees work more than 40 hours per
week. Their salaries for that additional time are
paid by the Center.
The Employer has no authority with respect to
the hiring, assignment, or termination of Common-
wealth employees. At most the Employer may re-
quest that such employees be removed or reas-
signed, but this must be approved by the area di-
rector of the DMH. Grievances of Commonwealth
employees are not handled by the Center but go to
the Department of Employee Relations and are
handled under the collective-bargaining agree-
ments, covering the Commonwealth employees if
applicable. The Center management does not
evaluate Commonwealth employees.
The board of directors of the Association has
delegated labor relations functions with respect to
Center employees (as distinguished from Common-
wealth employees on loan or assigned to the
Center) to the Center director. The director,
through the various department or unit supervisors,
is responsible for all hiring, termination, and disci-
pline of Center employees. The Center does its
own advertising of openings and screening of appli-
cants. While the director has final authority in
hiring and promotion, he generally acts upon the
recommendation of immediate supervisors. The
Center need not obtain the approval of or inform
the Commonwealth of its intention to fill a vacancy
or terminate an employee. Evaluations of Center
employees are done by their immediate supervisors.
Wages, hours, and other terms and conditions of
employment for Center employees are determined
by the Center. Such determinations do not require
the approval of the Commonwealth or the Federal
Government. In establishing rates of pay for
Center employees, such factors as the individual's
personal qualifications, education, and experience
are considered along with the availability of Center
funds and judgment as to the marketplace salary.
While the Center might take into consideration the
salaries paid to a comparable employee of the
Commonwealth, there is no mandate that rates of
pay be the same as those of Commonwealth em-
ployees placed at the Center. Moreover, the Com-
monwealth has no say in determining what the sal-
aries of Center employees will be.
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Personnel policies of Center employees are set
forth in the Center's personnel policy handbook.
This is distributed to Center employees at the time
of hire, but is not distributed to Commonwealth
employees assigned to the Center. Such policies
were formulated by the management of the Center
under the supervision of the Center's director and
approved by the personnel and executive commit-
tees of the board of directors of the Association.
Such policies, which apply only to Center employ-
ees, include fringe benefits such as sick leave, holi-
days, and vacations, as well as a grievance proce-
dure applicable to Center employees. The policies
also cover such matters as promotion, layoff,
recall, sick leave, and holidays (the holidays of
state employees are different from those of the
Center).
On the basis of all the foregoing, we conclude
that the immediate formulation of labor relations
policies and procedures for the employees sought is
a function performed by the Employer. The Com-
monwealth's interest is to see that the services con-
tracted for are provided. The Employer is exclu-
sively responsible for hiring, firing, and disciplining
its employees. With respect to other working con-
ditions, the record reveals that the Employer can
negotiate and enter into an agreement with the rep-
resentative of its employees. Accordingly, we con-
clude that the Employer does not share the Com-
monwealth of Massachusetts' exempt political
status under Section 2(2) of the Act.
The parties stipulated that, during the past calen-
dar year, the Employer received gross income of
over $4 million and made purchases from points
outside the Commonwealth of Massachusetts ex-
ceeding $50,000. Since the Employer's revenues ex-
ceeded any jurisdictional standards we might
apply, we find that the Employer's operations
affect commerce within the meaning of the Act
and it will effectuate the purposes of the Act to
assert jurisdiction herein.
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 Employ-
er within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The parties stipulated,5 and we agree, that the
appropriate unit consists of:
All full-time and regular part-time professional
employees, including psychologists, social
workers, registered nurses, counselors (mas-
ter's degree or higher in a relevant field), oc-
cupational therapists, physical therapists, certi-
fied developmental specialists and certified
speech therapists employed by the Employer
at its Ayer, Clinton, Fitchburg and Leomin-
ster, Massachusetts locations, but excluding all
other employees, center director, associate
center directors, consultation and education di-
rector, MIS director, out-patient and commu-
nity treatment program unit directors, resi-
dence program supervisors, BUDD director,
access program directors, day treatment activi-
ties program supervisor, respite program su-
pervisor, records coordinator, apartment pro-
gram supervisor, managerial employees, tech-
nical employees, office clerical employees,
service and maintenance employees, guards
and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
5 Of course, Commonwealth employees on loan or assignment to the
Employer are not included in the stipulated unit, since they are employ-
ees of a State within the meaning of Sec. 2(2) of the Act. Moreover, the
parties do not seek to include them.
40