Human Development Association

National Labor Relations Board - Board Decisions

May 22, 1989

293 N.L.R.B. 1228 (N.L.R.B. 1989)

1228 HUMAN DEVELOPMENT ASSN
Human Development Association and District 1199,
National Union of Hospital and Health Care
Employees , R.W.D.S .U., AFL-CIO and Local
6, International Federation of Health Profes-
sionals, International Longshoremen's Associa-
tion, AFL-CIO, Party to the Contract. Case
29-CA-9367
May 22, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 4, 1985, Administrative Law Judge
Arthur A. Herman issued the attached decision.
Thereafter, on June 30, 1987, the judge issued the
attached supplemental decision.' The Respondent
and Local 6 filed exceptions and supporting briefs,
and the General Counsel filed an answering brief.
The General Counsel filed cross-exceptions and a
supporting brief. The City of New York filed an
amicus brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified.
The judge found, inter alia, consistent with the
Board's Decisions and Orders in Res-Care, Inc., 280
NLRB 670 (1986), and Long Stretch Youth Homes,
280 NLRB 678 (1986), that the Respondent,
Human Development Association (HDA), is an
employer engaged in commerce within the mean-
i The supplemental decision was issued pursuant to a July 31, 1986
Board Order remanding this proceeding to the judge for further consider-
ation of the jurisdiction issue raised at the hearing by Local 6 alleging
that the City of New York, an entity exempt under Sec 2(2) of the Act,
exercises sufficient control over the Respondent 's labor relations so as to
prevent the Respondent from engaging in meaningful collective -bargain-
ing with Local 6
2 The General Counsel has excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
The judge 's supplemental decision contains an inadvertent error In the
section of the supplemental decision entitled "Supplemental Findings of
Fact ," par II , L 7, the sentence "This is not to say that HDA sets the
employees ' wages" is corrected to read "This is not to say that HRA sets
the employees ' wages "
The General Counsel's motion to strike portions of the Party to the
Contract's brief in support of exceptions is denied
Local 6, International Federation of Health Professionals filed motions
to reopen the record and/or remand the case to the judge for further
hearing The General Counsel opposed these motions We deny Local 6's
motions because the additional evidence sought to be adduced , if admit-
ted and credited , would not require a different result See Sec 102 48(d)
of the Board's Rules and Regulations
ing of Section 2(2), (6), and (7) of the Act, and that
the Board should assert jurisdiction over the Re-
spondent. We agree with the judge's conclusion
that the general overall review exercised by the
Human Resources Administration (HRA), a munic-
ipal agency of the City of New York, over the Re-
spondent does not sufficiently deprive the Re-
spondent of the ultimate control over essential
terms and conditions of employment to preclude it
from engaging in meaningful collective bargaining.
Accordingly, we find that it is proper to assert ju-
risdiction over the Respondent.3
In his original decision and recommended Order
in this case, issued prior to the Board's remand on
the jurisdictional issue , the judge concluded that
the Respondent violated Section 8(a)(2) and (1) of
the Act by recognizing Local 6 as the exclusive
bargaining representative of its home attendants on
June 22, 1981, when Local 6 did not represent a
valid majority of these employees. The judge fur-
ther concluded that by executing and enforcing a
collective-bargaining agreement containing a union-
security clause covering the Respondent's home at-
tendants on June 24, 1981, when Local 6 did not
represent a valid majority of the home attendants,
the Respondent violated Section 8(a)(3), (2), and
(1) of the Act. The judge held that it was unlawful
for the Respondent to have recognized Local 6
based on his determination that the appropriate unit
consisted of 190 employees and that Local 6 had
100 valid authorization cards, 6 of which could not
be counted toward majority support because they
had been executed by individuals who had also
signed District 1199 authorization cards. The judge
concluded that Local 6 possessed only 94 valid
cards and that, therefore, Local 6 did not represent
a majority of the 190 unit employees at the time
recognition was extended on June 22, 1981.
The General Counsel asserts that the judge's fig-
ures erroneously include five Local 6 cards that
were executed after the June 22, 1981 recognition.4
We find merit to the General Counsel's exception
and conclude that the five postrecognition cards
should not be counted toward Local 6's majority
In adopting the judge 's finding that the control exercised by the City
of New York in the area of health insurance is not sufficient to interfere
with the Respondent 's ability to bargain in a meaningful manner with
Local 6 regarding all other terms and conditions of employment, we dis-
avow the discussion contained in the "Analysis and Conclusions " section
of his decision that no evidence was introduced to show either that the
unions or the vendors were dissatisfied with the arrangement, or that
some other arrangement would be more cost efficient
Chairman Stephens agrees that jurisdiction is properly asserted under
the standards of Res-Care and Long Stretch , and he further finds the asser-
tion of jurisdiction consistent with the statutory standard under the ra-
tionale expressed in his dissent in Res-Care and concurrence in Long
Stretch
4 These are the cards of Ida Stotland , Mane Louisaiare , Madeline Hill,
Felicia Calo , and Eulalie Campbelle
293 NLRB No. 140
HUMAN DEVELOPMENT ASSN. 1229
support. Excluding the five postrecognition cards
reduces the number of valid authorization cards to
89.
The Respondent and Local 6 except to the
judge's finding that there were 190 employees in
the appropriate unit at the time of recognition. In
particular, the Respondent and Local 6 argue that
employees Lumpris and Williams are "hold-on"
employees and should not have been included in
the unit. Local 6 also asserts that employee
Mathew should have been included in the unit and
her Local 6 card counted. Even if merit were
found to these exceptions, Local 6 would have had
at most 90 valid authorization cards in a unit of 189
employees, an insufficient number to establish ma-
jority support. Accordingly, we find it unnecessary
to resolve the issues these exceptions raise.5
Accordingly, we adopt the judge's findings that
the Respondent violated Section 8(a)(2) and (1) by
recognizing Local 6 at a time when it did not rep-
resent a majority of the unit employees, and Sec-
tion 8(a)(3), (2), and (1) by executing and enforcing
its June 24, 1981 collective-bargaining agreement
containing a union-security clause and a dues-de-
duction authorization clause on behalf of the mi-
nority union.
The judge correctly ordered the Respondent to
reimburse all present and former unit employees,
except those who joined or signed authorization
cards for Local 6 prior to the execution of the col-
lective-bargaining agreement, for moneys paid by
or withheld from them on or after June 24, 1981,
for initiation fees, dues, or other obligations of
membership in Local 6. However, we modify the
judge's decision, remedy, and recommended Order
to the extent that it provides for reimbursement to
the home attendants who are "dual card" signers,
i.e., who signed authorization cards for both Local
6 and District 1199 prior to June 24, 1981.6 Al-
though the Local 6 cards of the dual card signers
were not counted for purposes of determining ma-
jority support, the employees' signing cards for
District 1199 does not vitiate the voluntary nature
of their signing Local 6 cards.? But consistent with
the Board's decision in Unit Train Coal Sales, we
conclude that reimbursement is appropriate only
with regard to employees who have been coerced
into membership in Local 6 by virtue of the union-
security clause in the unlawful collective- bargain-
5 The General Counsel raises several exceptions to the judge's determi-
nation about the size of the unit at the time of recognition , which, if
found to be meritorious, would increase the size of the unit The General
Counsel also argues that nine additional employees signed dual cards
thereby further reducing the number of valid authorization cards in
Local 6's possession at the time of recognition We also find it unneces-
sary to rule on these exceptions
6 See fns 59 and 61 of the judge's decision
7 See Unit Train Coal Sales, 234 NLRB 1265 fn 3 (1978)
ing agreement executed by the Respondent and
Local 6.8
In his recommended remedy, the judge provided
interest to be computed in the manner provided in
Florida Steel Corp., 231 NLRB 651 (1977). We shall
modify the judge's recommended remedy to re-
quire that interest be computed in the manner pro-
vided in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Human Development Association,
Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(b).
"(b) Reimburse all present and former unit em-
ployees, except those who joined or signed authori-
zation cards for Local 6 prior to the execution of
the collective-bargaining agreement on June 24,
1981, for moneys paid by or withheld from them
on or after June 24, 1981, for initiation fees, dues,
or other obligations of membership in Local 6,
with interest."
2. Substitute the attached notice marked "Appen-
dix B" for that of the administrative law judge.
8 The Respondent contends that a dues reimbursement Order is unwar-
ranted because "[a] contract provision for automatic dues check-off,
standing alone, does not constitute sufficient coercion under the law to
justify such a drastic remedy," citing Intalco Aluminum Corp V NLRB,
417 F 2d 36, 39-42 (9th Cir 1969), as support We reject this contention
The coercion is inferred from the union -security clause in the unlawful
agreement and its requirement of union membership as a term and condi-
tion of employment , rather than from the existence of a checkoff provi-
sion Furthermore, the Ninth Circuit itself has recognized the appropri-
ateness of the dues reimbursement remedy subsequent to its Intalco deci-
sion In NLRB v Jan Power, Inc, 421 F 2d 1058 at 1064 (9th Cir 1970),
the court, in upholding the dues reimbursement remedy provided by the
Board's order , specifically stated that it was reasonable "for the Board to
infer that those employees who joined the union after the execution of
the agreement could well have been motivated by the over-riding com-
pulsion of that agreement and its union -security clause [citations omit-
ted] " In Sheraton -Kauai Corp v NLRB, 429 F 2d 1352, 1357-1358 (9th
Cir 1970), the same court enforced a dues reimbursement remedy when
employees joined the union after being informed they were obligated to
do so under the union -security agreement entered into unlawfully by the
contracting parties In that decision , the court, at fn 6, observed that its
Intalco and Jan Power decisions could only be reconciled by restricting
Intalco to the specific facts of that case In any event , we do not sub-
scribe to the view expressed by the Ninth Circuit in its Intalco decision,
and note further that that view is not representative of the views of other
circuit courts See, e g, Longshoremen Local 1814 (Jackson Engineering) v
NLRB, 735 F 2d 1384, 1404-1405 (D C Cir 1984), NLRB v Hi-Temp,
Inc, 503 F 2d 583, 586-587 (7th Cir 1974), NLRB P Raymond Buick, per
cunam, 445 F 2d 644, 645 (2d Cir 1971)
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT contribute support to Local 6 or
to any other labor organization of the employees.
WE WILL NOT recognize Local 6 as the repre-
sentative of any employees for the purpose of deal-
ing concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other condi-
tions of employment, unless and until the labor or-
ganization shall have demonstrated its exclusive
majority representative status pursuant to a Board-
conducted election among the employees.
WE WILL NOT give effect to the collective-bar-
gaining agreement dated June 24, 1981, between us
and Local 6, or to any extension, renewal, or modi-
fication, provided, that nothing in this Decision
and Order shall require us to vary or abandon any
wage, hour, seniority, or other substantive feature
of relations with employees established in the per-
formance of that agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL withdraw and withhold all recognition
from Local 6 as the exclusive bargaining represent-
ative of employees for the purpose of dealing con-
cerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of
employment, unless and until that labor organiza-
tion shall have demonstrated its exclusive majority
representative status pursuant to a Board-conduct-
ed election among the employees, and shall have
been certified by the Board.
WE WILL reimburse all present and former unit
employees, except those who joined or signed au-
thorization cards for Local 6 prior to the execution
of the collective-bargaining agreement on June 24,
1981, for all moneys paid by or withheld from
them on or after June 24, 1981, for initiation fees,
dues, or other obligations of membership in Local
6, with interest.
HUMAN DEVELOPMENT ASSOCIATION
Meredith A. Fisher, Esq., for the General Counsel.
Carolyn H. Henneman, Esq. (Scoppetta & Seif/), for the
Respondent.
Sipser, Weinstock, Harper, Dorn , Leibowitz, Esqs., for the
Charging Party.
William Perry, President , and Saul Jakubowitz, Esq., for
the Party to the Contract.
DECISION
STATEMENT OF THE CASE
ARTHUR A . HERMAN , Administrative Law Judge.
This proceeding under Section 10(b) of the National
Labor Relations Act, as tried before me pursuant to due
notice on November 28, 1983 , February 14-17, 21, 22,
March 19-23, 26, and May 1 , 2, and 5, 1984, in Brook-
lyn, New York, and New York , New York.
District 1199, National Union of Hospital and Health
Care Employees , R.W.D.S .U., AFL-CIO (District 1199),
filed its initial unfair labor practice charge on December
14, 1981,1 and an amended charge on January 6, 1982.
These charges culminated in the issuance of a complaint
and notice of hearing on February 3, 1982.
The complaint alleges that Human Development Asso-
ciation (the Respondent) violated Section 8(a)(1), (2), and
(3) of the Act , by recognizing Local 6, International
Federation of Health Professionals, International Long-
shoremen's Association , AFL-CIO (Local 6), at a time
when Local 6 did not represent an uncoerced majority
of employees in an appropriate unit and , thereafter, by
executing and enforcing a collective -bargaining agree-
ment with Local 6 which contains a union -security
clause and a dues-checkoff provision Respondent's duly
filed answer denied the commission of any unfair labor
practices.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel , Respondent, and
Local 6, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent admits that it is a not-for-profit New York
corporation engaged in the business of providing home
care attendant services to Medicaid recipients pursuant
to a contract between it and the City of New York, De-
partment of Social Studies of the Human Resources Ad-
ministration. Respondent further admits that during the
past year it has derived gross revenues in excess of
$500,000 from the City of New York in exchange for
providing home attendant services, and that during the
same period it purchased goods and materials valued in
' All dates herein refer to the year 1981 unless otherwise indicated
HUMAN DEVELOPMENT ASSN 1231
excess of $5000 from enterprises located in the State of
New York which enterprises received goods and materi-
als directly from States other than New York State.
Although Respondent meets the Board's monetary
standards for assertion of jurisdiction, it does not admit
in its answer, the conclusionary allegation, i.e., that it is
engaged in commerce within the meaning of Section
2(2),2 (6), and (7) of the Act. In addition, Local 6, the
party to the contract, disputes the Board's jurisdiction in
this proceeding, alleging that the City of New York, an
employer exempt from the Act, is a joint employer with
Respondent, and possesses significant control over Re-
spondent's labor relations decisions.
Testimony regarding this issue was elicited from Rabbi
Gruenwald, Respondent's director; William Perry, Local
6's president; and, Robert Shick, Director of the Bureau
of Home Care Contract Services for the Human Re-
sources Administration (HRA) of the City of New
York.3
Respondent, an independent private corporation, is one
of approximately 70 vendor agencies which the City
contracts with to provide personal care services to eligi-
ble Medicaid clients.4 The purchase-of-service agreement
between HRA and each of these agencies is negotiated
on an annual basis for the fiscal period from July to
June. The agreement has basic terms and provisions pur-
suant to which HRA monitors the operations of the
vendor agency (Respondent), and it sets a budget within
which Respondent is expected to operate. HRA audits
Respondent's books twice a year, and it reviews the re-
sumes of the top officials of Respondent.5 In addition,
HRA reviews vendor's leases to make sure that the city's
liability is limited, and Respondent seeks HRA's approv-
al before making large purchases of equipment. Howev-
er, the record evidence does not support Local 6's con-
tention that Respondent should be exempt from the
Board's jurisdiction because it has close ties to an exempt
entity, the City of New York. The evidence clearly
shows that the city's interest in reviewing certain aspects
of Respondent's operation is to protect the city by limit-
ing its liability under the purchase-of-service agreement.
HRA looks as those items that could possibly affect the
cost of the purchase-of-service agreement. But when it
comes to negotiating a collective-bargaining agreement,
HRA adopts a hands-off policy and leaves the Respond-
ent and the other vendor agencies to their own devices
2 Sec 2(2) of the Act reads The term "employer" includes any person
acting as an agent of an employer, directly or indirectly, but shall not
include the United States or any wholly owned Government corporation,
or any Federal Reserve Bank , or any State or political subdivision there-
of, or any person subject to the Railway Labor Act, as amended from
time to time , or any labor organization (other than when acting as an em-
ployer), or anyone acting in the capacity of officer or agent of such labor
organization
8 In its brief, Respondent , after hearing the testimony of Shick, now
takes the position that New York City is not a co-employer with Re-
spondent
4 R Exh 26 Eligibility to receive Respondent 's services is determined
by HRA
5 Respondent 's administration is vested in a director and deputy direc-
tor who are selected by the executive director and board of directors of
Respondent 's parent organization , Opportunity Development Association
The latter is also an independent private, nonprofit organization , not cre-
ated by the city of New York, nor is it a department of the City.
in dealing with the labor organization who represents the
home attendants. After negotiations between the vendor
and the union are completed, and a collective-bargaining
agreement executed, then a copy of the agreement is for-
warded to HRA. There is no prior review by HRA.
HRA will look at the economic terms of the agreement
for its impact on the city relating to its reimbursement
rate as stated in the purchase-of-service agreements. If
those economic terms exceed the reimbursement rate,
HRA will notify the vendor that the city will not exceed
its commitment and will not reimburse the vendor
beyond its commitment. There is nothing in the pur-
chase-of-service agreement between HRA and the
vendor that prohibits Respondent from committing itself
to a collective-bargaining agreement that exceeds HRA's
commitment, but Respondent does so at its own risk. 6 At
no time does HRA get involved in the terms and condi-
tions of employment of home attendants employed by
vendors, nor does it negotiate with unions on their
behalf. HRA does not discipline those employees, nor
does it get involved in disputes between Medicaid clients
and home attendants.
In National Transportation Service,' the Board conclud-
ed that it would no longer utilize the so-called "intimate
connection" test, but would instead determine whether
the employer itself meets the definition of "employer" in
Section 2(2) of the Act and, if so, determine whether the
employer has sufficient control over the employment
conditions of its employees to enable it to bargain with a
labor organization as their representative. Once it is de-
termined that the employer can engage in meaningful
collective bargaining with representatives of its employ-
ees, jurisdiction will be established. And, in ANKH Serv-
ices,8 a case very similar to the instant case, the Board,
citing National Transportation Service, supra, concludes
"that the Employer has substantial, if not total, control
over the wages, hours, and other terms and conditions of
employment of its in-home service workers, and that the
Employer is thus able effectively to engage in meaning-
ful bargaining over these matters with a labor organiza-
tion representing them. We shall therefore assert jurisdic-
tion over the Employer."
Applying the current Board law, therefore, to the facts
in the instant case, I conclude that because the Respond-
ent meets the mandatory standards for assertion of juris-
diction, and because the Respondent has control over the
wages, hours, and other terms and conditions of employ-
ment of its home attendants so that it can bargain effec-
tively with Local 6, Respondent is not a joint employer
with the City of New York and the Board should assert
its jurisdiction over Respondent, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
8 In fact, the city attempts to aid their vendors prior to their entering
into negotiations with the unions , by presenting them with facts and fig-
ures so as to give the vendors an idea of how much more money will be
available to them for the coming year so that the vendors could negotiate
intelligently with Unions See Party to the Contract Exh. 27.
7 240 NLRB 565
8 243 NLRB 478
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondent admits, and I find
that District 1199 and Local 6 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1980 Respondent has been engaged in providing
home care services to eligible Medicaid clients pursuant
to a purchase-of-service agreement between Respondent
and HRA. Respondent performs these services by hiring
home attendants who are dispatched to the clients'
homes. These home attendants are referred to as Tier 1
employees in the purchase-of-service agreement, distin-
guishing them from Respondent's administrative employ-
ees who are combined in a Tier 2 grouping. Two of Re-
spondent's employees in Tier 2, Marlene Paynter and
Mona Wilson, are classified as personnel specialists.9
When Respondent would obtain an eligible Medicaid
client from HRA, either Paynter or Wilson would visit
the client with a registered nurse to determine the needs
and requirements of the client. If a home attendant was
present, they would interview the home attendant; if not,
a home attendant that best suited the client's needs
would be assigned by them to the client. Paynter and
Wilson handled clients' complaints about home attend-
ants, and would attempt to work out the problem; if they
were unsuccessful, they had authority to change the
home attendant. Personnel specialists take care of the
home attendants' timesheets, and they arrange their vaca-
tion and sick leave. Home attendants are paid on an
hourly basis. They work from 4 to 24 hours a day,' ° and
from 2 to 7 days a week.' 1 All of these arrangements are
handled by personnel specialists.
Rabbi Gruenwald credibly testified that in addition to
the regularly employed home attendants who are as-
signed on a permanent basis to particular clients, Re-
spondent also calls on "hold-on" home attendants from
time to time. These hold-ons are home attendants who
do not wish to work on a permanent basis or there are
no openings for them on a permanent basis. They there-
fore work on a substitute basis, filling in when a home
attendant is sick, or takes a day off, or goes on vacation.
In Rabbi Gruenwald's own words, "A hold-on employee
is someone that works for a short period of time and
leaves Or works for a person, one day here, one day
there for a different client. And they would still be hold-
ons." In distinguishing between regular home attendants
and hold-ons, Rabbi Gruenwald stated, "We do not have
regular employees and ten different names. We have reg-
ular employees, working full time for the same client,
and we have, as I said in the beginning of the hearing,
hold-ons, for client 'a' today for client `b' next week,
and/or an hour here, an hour there." Although it is un-
disputed that the appropriate unit in this proceeding con-
sists of all home attendants employed by Respondent,
9 Both testified in this proceeding as witnesses for the General Counsel
10 A 24-hour home attendant is called a sleep-in
I1 Some 7-day clients have two home attendants-one for 5 days, and
one for 2 days
Respondent did not include hold-ons in the count when
it recognized Local 6.12
B. Recognition of Local 6
Turning now to Respondent's recognition of Local 6,
the following sequence of events is uncontroverted. For
several months prior to June 1981, Local 6 conducted a
mail campaign attempting to get Respondent's home at-
tendants to sign authorization cards designating Local 6
to represent them. On June 11, a card count was held on
Respondent's premises. Those present included Steve
Jarema, a business agent for Local 6, Rabbi Gruenwald,
and Dr. Arnold Wolf, Respondent's director,13 and their
attorney Lichtschein Bornstein, an attorney, conducted
the card count by checking Local 6's cards against Re-
spondent's personnel and payroll records. After the
count, Bornstein concluded that Local 6 did not have
enough cards to constitute a majority, and so Jarema
gathered up the cards and left.
On June 22, a second card count took place on Re-
spondent's premises. Perry and Jarema represented Local
6, Rabbi Gruenwald, Dr. Wolf, and Lichtschein repre-
sented Respondent, and Samuel Krieger, Esq. conducted
the card count. Krieger credibly testified as to who was
present and how he went about checking the cards, of-
fered by Local 6, against timesheets and other docu-
ments, offered by Respondent. He stated that the parties
stipulated that there were 181 employees in the unit, and
that when Perry presented him with 91 acceptable
cards,14 he announced that Local 6 represented a majori-
ty of the home attendants in the unit.15 On that same
day Krieger reduced his findings to writing by a letter to
all concerned parties, verifying his count, and adding the
fact that Local 6 "had in its possession 46 additional sig-
nature cards which were not submitted for verification."
(Party to the Contract Exh. 40.) Based on Krieger's find-
ings, Respondent recognized Local 6 as the collective-
bargaining representative of its home attendants, and 2
days later, June 24, executed a collective-bargaining
agreement with Local 6, containing a union-security
clause and a dues-deduction authorization clause, cover-
ing the terms and conditions of employment of its home
attendants.
Counsel for the General Counsel presented evidence
through Herbert Binger, a vice president and area direc-
tor for District 1199, relating to the latter's organizing
efforts concerning Respondent's home attendants. She
elicited testimony to the effect that commencing in or
about March 1981, District 1199 mounted a mail cam-
paign seeking to get Respondent's home attendants to
1 z The unit status of the hold-ons will be discussed infra
13 Dr Wolf left Respondent's employ in July 1982, and Rabbi Gruen-
wald replaced him as Respondent 's director
14 Some of the cards offered by Perry were duplicates and therefore
not counted
15 According to Joan Kaltschmidt, a secretary employed by Local 6
and the one who accumulated and counted the authorization cards as
they came in the mail, Local 6 received over 147 cards She concedes
that some were duplicates, and in that event, she stapled them together
with the latest date on top In any event the General Counsel introduced
into evidence Local 6's cards as G C Exh 15 and stipulated that they
numbered 134
HUMAN DEVELOPMENT ASSN 1233
sign authorization cards; that in late May or early June
to August, District 1199 began a personal solicitation
outside Respondent's premises; that District 1199 held
two meetings with Respondent's home attendants in Feb-
ruary-March and April, at which cards were distributed
to the home attendants; that despite its campaign efforts,
District 1199, the Charging Party, never filed an NLRB
petition to represent Respondent's home attendants; and
that after repeated attempts during late May and June to
reach Respondent's director, District 1199 on June 29,
sent a letter to Respondent requesting recognition.16
However, inasmuch as recognition had been extended to
Local 6 on June 22, and a contract executed on June 24,
Respondent ignored District 1199's letter.
And so, the issue was joined with District 1199 filing
the unfair labor practice in the instant proceeding, and
the complaint issued by the General Counsel alleging a
violation of Section 8(a)(2) of the Act, in that Respond-
ent granted recognition to Local 6 at a time when either
(1) Local 6 did not have a sufficient number of valid
cards to constitute a majority of the home attendants in
the unit on June 22, or (2) the existence of dual cards
held by District 1199 nullified the Local 6 cards suffi-
ciently to reduce its valid cards to below the necessary
majority.
C. The Size of the Unit as of June 22
As stated above, the card count on which recognition
of Local 6 was based, occurred on June 22. Among the
documents used by Krieger to verify the count was the
Respondent's latest payroll register prior to June 22,
which was dated June 18,17 and which contained the
names of 181 home attendants. However, the June 18
payroll register listed only those home attendants who
were employed for the period from May 30 through
June 12. And so, a look at prior and later payroll regis-
ters and quarterly ledger cards becomes necessary in
order to add those home attendants who were hired be-
tween June 13 and 22, and delete those home attendants
who no longer were employed on June 22,' a if any. In
addition, a determination regarding the unit status of
hold-ons must be made, if any appear on those payrolls.
Rabbi Gruenwald testified that eight regularly em-
ployed home attendants" should be included in the unit
18 Binger claims that District 1199 had about 50 authorization cards by
June 29
17 G C Exh 5
18 Extensive testimony regarding the status of certain home attendants
was elicited from Rabbi Gruenwald on behalf of Respondent , and Mar-
lene Paynter on behalf of the General Counsel My observation of the
witnesses as they responded to questions, leads me to place more reliance
on the cold record provided by the payroll registers and ledger cards and
I shall use them extensively
18 Victoria Bodden, Elsie Duperval , Eppie Edelstein, Mary Hopkin,
Rosetta Liburd, Violet Maxwell , Patricia Paul, and Juliette Rose. The
Rabbi inadvertently referred to Pauline Paul, but the record shows that
Paulina Paul appears on the June 18 payroll register as well as on several
other payrolls that follow immediately thereafter, whereas Patricia Paul's
name appears for the first time on the July 1 payroll register and contin-
ues on payrolls thereafter Because Paulina's status is not in dispute and
she is a regular employee, I will substitute Patricia for Paulina and in-
clude Patricia Paul in the unit as well
despite the fact that their names do not appear on the
June 18 payroll register. Rabbi Gruenwald contended
that he considered a home attendant to be a regular per-
manent employee who appeared consistently on the pay-
rolls working for the same client and who received at
least three consecutive paychecks. The reasons for the
absence on these employees from the June 18 payroll
could be. vacation, sick leave, or the client could be hos-
pitalized. And, according to Rabbi Gruenwald, these
eight employees' names do appear consistently on the
payroll except for the June 18 payroll. The General
Counsel does not dispute the inclusion of these employ-
ees, except for Bodden. Bodden's name does not appear
on the payroll registers for May 21, June 18, July 1, 16,
or 30, and August 13. The June 4 payroll register shows
an accumulated amount covering a period form April 13
to May 29, which leads me to believe that this check was
for vacation pay. And so, I find that Bodden was no
longer employed by Respondent on June 22, and is,
therefore, excluded from the unit. However, I shall in-
clude the other seven by consent of the parties and the
unit count now stands at 188. In addition, Rabbi Gruen-
wald, contrary to the General Counsel, would exclude
Andrea Inniss and Hilda Sears from the unit claiming
them to be hold-ons. I have checked the records20 and,
although I disagree with Rabbi Gruenwald regarding
Sears' hold-on status, I find that Sears ceased to work for
Respondent on June 18, and was not an employee on
June 22. Therefore, she shall be excluded from the unit.
As for Inniss, the records reflect sporadic earnings total-
ing a gross amount of $80.40 during the second quarter
of the year and her name does not appear on either the
July 1, 16, or 30 payroll register. Thus, at most she was a
hold-on employee on June 22. In deciding to exclude
Inniss, I have come to the conclusion to exclude all hold-
on employees. In the case of on-call employees, the
Board has taken the view that such employees may or
may not be considered regular part-time employees, de-
pending on the specific nature of their work. Where they
are employed sporadically with no established pattern of
regular continuing employment, they are excluded from
the unit 21 From the evidence presented I liken the hold-
ons to on-call employees, and I find that Respondent's
hold-on employees meet that criteria and, therefore, I
shall exclude all hold-on employees from the unit.22 By
excluding Sears, Inniss and Mathew from the unit, the
count stands at 185 employees in the unit on June 22.
Another employee in dispute is Melicia Wright. My
review of the records indicates that Wright 's name ap-
pears on the payroll register for June 18,23 but does not
20 Payroll registers received in evidence included those for May 21,
June 4 and 18, July 1, 16, and 30, and August 13 Also received in evi-
dence was the quarterly ledger card dated March 26, June 29, and Sep-
tember 24
21 giggly Wiggly El Dorado Co, 154 NLRB 445, 451 (1965)
22 A case in point is that of Gladys Mathew Although her name ap-
pears on the June 18 and July 1 payroll registers , it is not repeated either
before or after those dates, and her earnings show a much lower figure
than regular home attendants , suggesting that Mathew was a hold-on for
a very brief period of time I find that she does not share a community of
interest with the regular home attendants sufficient to warrant her being
part of the unit and therefore she shall be excluded from the unit
23 This payroll register covers the period from May 30 to June 12
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appear thereafter on any payroll register in evidence for
1981. I conclude, therefore that Wright was not em-
ployed by Respondent on June 22, and her name shall be
excluded from the unit.24 Thus, the unit count is now
184. Four other new employees, i.e., employees whose
names do not appear on the June 18 payroll register, but
who are conceded by Respondent to have been em-
ployed on June 22 as regular employees, namely, Joyce
Carnegie, Ana Fernandes, Sara Grunzweig, and Maria
Reyes, and whom the General Counsel wants included in
the unit, shall be included. The unit count now rises to
188, and as far as Respondent is concerned, that con-
cludes the number of eligible unit employees on June 22.
However, the General Counsel contends that there are
other employees who should be added to the list, and I
now direct my attention to them. Taking them alphabeti-
cally from the General Counsel's Appendix A attached
to her brief, I make the following findings of fact25
Marcella Aaron worked for Respondent during the
first and third quarters of 1981, but not in the crucial
second quarter. Her name does not appear on the payroll
registers of May 21, June 4 and 18, or July 1 or 16. It
appears on the payroll registers for July 30 and August
13, during which time Aaron serviced three clients.
Under the circumstances, I do not find her a regular per-
manent employee, and I shall not include her in the unit.
Lurrine Brown, an employee hired on June 22, is ad-
mittedly a hold-on, and for the reasons stated above, she
shall not be included in the unit.
According to Paynter, Coral Brownfield worked on
June 20 and 21 for Respondent.26 Except for her name
appearing on the payroll of July 1, covering those 2
days, it does not appear on the payroll registers of May
21, June 4 and 18, July 16 and 30, or August 13. I find,
therefore, that Brownfield was hired for one job only for
2 days, with no expectancy of continued employment
and in fact, was not recalled for at least 3 months there-
after, if ever. She shall be excluded from the unit.
The records show that Ernestina Lumpris started
working for Respondent on June 22. She worked a full
week in that pay period, and 2 full weeks in each of the
next two pay periods all for the same client. By Rabbi
Gruenwald's own standard, this employee meets the cri-
teria of a regular permanent employee, and I shall in-
clude her in the unit as of June 22. This brings the total
complement of the unit at this point to 189.
Lorraine Menake is admittedly a hold-on employee.
She worked a total of 39 hours through the first three
quarters of 1981 (all in July), and did not work on June
22. She shall be excluded from the unit.
Christine Nelson, according to Paynter, was a hold-on
employee on June 22, having worked for three clients
during the payroll period ending June 26. The payroll
registers for July 16 and 30 and August 13 show her
working full time for just one client. However, because
the crucial consideration is her status on June 22, and it
24 It should be noted that Mathew and Wright were card signers for
Local 6 Therefore, I shall reduce Local 6's count by two
25 Only those employees on the list who have not been previously con-
sidered will be discussed
26 Those 2 days were Saturday and Sunday
is clear that she was a hold-on on that date, I shall ex-
clude her from the unit.
Gloria Ogilvie worked a total of 69 hours through the
first three quarters of 1981, 36 of which she worked in
pay period ending July 24. She did not work on June 22
nor during that pay period. Her name does not appear
on the payroll registers for May 21, June 4 and 18, or
July 1 and 16. At most, 'Ogilvie was a hold-on, and she
shall be excluded from the unit.
The General Counsel concedes that Loncitta Roach
was a hold-on employee, having worked only 8 hours as
shown on the payroll register for July 16, and only 48
hours in each of the following two payroll registers. She
did not work for Respondent on June 22, nor did she
work from May to July. She shall be excluded from the
unit.
Lucy Sant started working for Respondent on June 22,
and appears on the July 1 payroll register as having
worked 2 full weeks. The payroll registers for July 16
and 30, however, show Sant working only 1 week in
each period, and the August 13 payroll register does not
show Sant at all. Under the circumstances, and applying
the principles enunciated above, I find that Sant was
only a temporary employee who should not be included
in the unit.
Cecilia Sobers was a hold-on employee who worked a
total of 4 hours some time during the week ending June
19. Her name does not appear on any payroll register
either before that date or after. She shall be excluded
from the unit.
Chaim Steinberg worked on June 22, a Monday, and 4'
hours each day that week, but not during the next week
of that payroll period. In the next payroll period shown
in the payroll register of July 16, Steinberg again worked
only 1 week for a total of 20 hours. The payroll register
for July 30 shows Steinberg working 4 hours each day
for both weeks. His name does not appear on the August
13 payroll register. I consider Steinberg to be a hold-on
employee, and I will exclude him from the unit.
Eileen Stroude's name appears on the July 1 payroll
register as having worked 1 full week in that pay period,
including June 22, and 2 full weeks on the July 16 pay-
roll register. Her name does not appear either before or
after these entries. She shall be excluded from the unit as
a hold-on employee.
The record shows that Zhanna Vitlina worked for Re-
spondent 25 hours a week from the week ending July 3
through the week ending August 7. However, there is no
record showing Vitlina working on June 22, despite the
fact that the record says she was hired on June 8. Be-
cause the records show that her earliest working date
was June 27,27 she was not employed on June 22 and,
therefore, shall be excluded from the unit.
The General Counsel admits that Zelpha (Maude)
Warden, is a hold-on employee, and the records show
that she worked sporadically at that. The July 1 payroll
register shows Warden working 2 full weeks for one
client, then there is a break in employment. Warden did
not work again until the payroll period covered by the
21 Respondent ' s workweek begins on Saturday
HUMAN DEVELOPMENT ASSN.
payroll register for August 13, which shows her working
another full 2 weeks but for another client. I find her to
be a hold-on employee and she shall be excluded from
the unit.
Bernice Williams started working for Respondent
some time during the week ending June 19 and worked
continuously for the same client (Caifa) for 6 consecutive
weeks to July 24. The payroll registers for July 1, 16,
and 30 reflect these facts. The payroll register for
August 13 shows Williams working 2 full weeks for an-
other client (Finnegan), and the quarterly ledger card,
dated September 24, shows Williams working into Sep-
tember. Inasmuch as Williams was employed by Re-
spondent on June 22, and worked full time consistently
thereafter for at least 3 months, I find her to be a regular
employee as of June 22, and she shall be included in the
unit . This brings the unit count to 190 as of June 22.
Two employees, Bernadette Connell and Marilyn Jer-
nck whose names appear on the June 18 payroll register
and who were included in the count by Krieger, were
the subject of conflicting testimony, i.e., the General
Counsel contends they are hold-on employees, whereas
Respondent classifies them as regular employees. How-
ever, both would include them in the unit. I agree for a
different reason . The records show that Connell worked
for a client (Bongiovanni) for 40 hours during the week
ending May 1; that she then went to work for a client
(Bloomfield) on a part-time basis, beginning during the
week ending May 22 for 22 hours, the week ending June
5 for 22 hours, the week ending June 12 for 22 hours,
the week ending June 19 for 11 hours, the week ending
July 3 for 16 hours, the week ending July 10 for 8 hours,
the week ending July 17 for 16 hours, and the week
ending August 7 for 16 hours. Jerrick was equally as
consistent an employee.
The record shows the following:
Week
Ending
Client No. of Hrs.
5/8 Bongiovanni 40
5/15 Bloomfield 77
5/22 Bongiovanni 40
5/29 Laplaza 60
5/29 Bloomfield 22
6/5 Laplaca 24
6/5 Teitlebaum 12
6/12 Teitlebaum 84
6/19 Gazzetta 60
6/26 Ambrosio 77
7/3 Ambrosio 77
7/10 Ambrosio 77
7/17 Ambrosio 77
7/24 Ambrosio 77
7/31 Solomon 32
8/7 Solomon 32
While neither meets the standard set down by Rabbi
Gruenwald, supra, the consistency of their employment,
whether for one client or several or the length of hours
performed, is scarcely the pattern of a temporary or
casual employee. The Board has held that part- time em-
1235
ployees are included in a unit whenever they perform
work on a regular basis for a sufficient period of time to
demonstrate that they have a substantial community of
interest with full-time employees. Such part-time employ-
ees are considered regular part-time employees, and I
find Connell and Jerrick to fit that description.28 Be-
cause they have already been included in the unit, the
count stands at 190.
D. Local 6's Status
The first issue in the complaint raises the question of
Local 6's majority on June 22, and whether proper rec-
ognition was extended to Local 6 by Respondent.
The General Counsel placed into evidence29 copies of
the authorization cards obtained by Local 6., They to-
taled 138 cards, of which 4 were duplicates, leaving a
balance of 134 cards. Perry testified that this represented
all the cards that Local 6 obtained from Respondent's
home attendants. By comparing the names on the cards
with the names of the 190 employees in the unit on June
22, taking into consideration the two employees
(Mathew and Wright) who signed Local 6 cards but
whom I have excluded from the unit,30 I find that Local
6 had 100 valid cards, giving it a majority of the 190 em-
ployees in the unit. (See App. A attached hereto.)$1
Under the circumstances, I find that recognition by Re-
spondent of Local 6 on June 22 was granted in good
faith on the basis of a previously demonstrated showing
of majority.
E. The Existence of Dual Cards and Their Effect of
Local 6's Majority Status
Having concluded that Local 6 possessed valid author-
ization cards from a majority of the unit employees on
June 22, I am now confronted with the General Coun-
sel's second argument for voiding a portion of these
cards. The General Counsel contends that a sufficient
number of Local 6 card signers also signed cards for Dis-
trict 1199 prior to recognition, and therefore those dual
card signers should not be counted,32 When an employ-
ee signs an authorization card for each of two unions, it
is settled Board law that, absent evidence of the signer's
intent, neither of the authorizations is valid because it is
impossible to determine which union the employee
would designate as the exclusive bargaining representa-
tive .33 In support of its contention, the General Counsel
28 Farmers Insurance Group, 143 NLRB 240, 244, 245 (1963)
29 G.C. Exhs. 15(A)-(EH).
so Supra, fn. 24 . Although Bodden signed a card for Local 6 and I
have excluded her from the unit, the count is not affected because she
does not appear on the payroll register for June 18 and I have-not added
her name to the count.
31 Respondent, while admitting that Mathew should be excluded, con-
tends that there were 101 valid cards However , on examination, Re-
spondent will note that I have excluded Wright, for reasons given supra
32 See Hi Temp Inc., 203 NLRB 753 (1973), Intalco Aluminum Corp,
169 NLRB 1034 (1968); Allied Supermarkets, 169 NLRB 927 Respond-
ent's argument to the contrary and its reliance on Wavecrest Home for
Adults, 217 NLRB 227, is misplaced See Board's in 2 therein
33 United McGill Corp, 235 NLRB 564, 565
1236, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attached an Appendix C to its brief, listing 15 home at-
tendants whom it claims signed dual cards. 34
Mathew' s name can be immediately discounted be-
cause it is not included in the list of 190 eligible employ-
ees. Four other employees, Benjamin , Boucher, 35 John-
son, and Stephen did not testify in this proceeding. The
General Counsel relied on the testimony and memory of
Paynter, an alleged supervisor, in trying to establish the
fact that all four had signed cards and given them to
Paynter to hold. Paynter stated that she had received
about 20-30 District 1199 cards from employees and kept
them in a basket on her desk; that sometime after the
June 22 count, Respondent moved its offices from up-
stairs to downstairs on the same premises , and Paynter
threw the District 1199 cards out; that, however, she re-
members some of the names on the cards. At this point,
from memory, she recited four names including Johnson
and Stephen .36 She then was shown a payroll list of
names by the General Counsel, and she rattled off ap-
proximately 20 names including Boucher. Of the four
names under discussion only, Johnson's card is in the
record, and that is dated September 18 a date long after
the count.37 I find that Paynter's testimony was uncon-
vincing as was her manner in testifying, and I discredit
her with regard to the alleged cards. Therefore, I find
that dual cards for Benjamin, Johnson and Stephen did
not exist prior to June 22.38
Four other employees, Decasseres, Marcel, Michael,
and Wilson did testify, Decasseres contends that she re-
members signing a card for Local 6 and a card for Dis-
trict 1199 about the same time sometime in May.39 How-
ever, the only card in evidence from District 1199 is
dated July 24;40 Decasseres states that she had signed
two cards for District 1199. Marcel also claims to have
signed two cards for District 1199 but only one card is in
evidence and it is dated August 1.4 1 Michael claims to
have signed three cards for District 1199-two in April
or May and one in January 1983. However, none are in
evidence. Wilson claims, to have signed two cards for
Distnct 1199, but only one card is in evidence, and it is
dated July 18 42 Having before me only the cold, hard
evidence of three cards all dated after June 22, and the
testimony of a fourth witness who claims to have signed
three cards, none of which appears in the record, I find
the testimony of these witnesses contradictory, confus-
ing, and lacking trustworthiness. I, therefore, discredit
34 The General Counsel introduced into evidence , through Binger, 72
District 1199 authorization cards allegedly obtained from Respondent's
employees See G C Exh 36. However, a review of those cards indicates
an assortment of reasons why the only cards relied on by the General
Counsel are contained in App C, and I shall confine my discussion to the
App C list
35 Boucher 's name appears on the June 18 payroll register under her
first name, Jocelyne I have listed her name correctly on App A
36 Nowhere in her direct testimony did she ever mention the name
Benjamin
31 G C Exh 36 NN
38 Although I find Paynter to be a supervisor within the meaning of
their testimony as to when they signed cards that are not
available to me, and I do not accept the General Coun-
sel's argument that valid dual cards had been signed by
these four employees.
The six remaining employees on General Counsel's
Appendix C: Cruz, Hyacinth, Lefkowitz, Rankin, Rich-
ardson, and Spence all testified in this proceeding.
Juanita Cruz credibly testified that she started to work
for Respondent in December 1980, and that she is still
working there; that she was handed a District 1199 au-
thorization card by Joan Johnson on Respondent's prem-
ises; that her daughter filled the card out; and that she,
Juanita Cruz, signed the card on March 27,43 and mailed
it.44 Cruz also testified that she signed a card for Local 6
on May 8 after her daughter filled it out.45 Cruz stated
that she was not coerced into signing either card. I find
that Cruz signed dual cards, both prior to June 22.
Patricia Hyacinth credibly testified that she is present-
ly employed by Respondent and that she signed a card
for Local 6 on May 17,46 and one for District 1199 on
June 19;47 that she put each card in an envelope on the
day she signed it and mailed them to the respective
unions. On this testimony, I hold that Hyacinth signed a
District 1199 card on June 19 and mailed it the same
day, and signed a Local 6 card earlier. She, therefore,
signed dual cards prior to June 22.
Ana Mercedes Lefkowitz, a Spanish-speaking employ-
ee, presently employed by Respondent, credibly testified
that she was handed a District 1199 card outside Re-
spondent's premises on Friday, a payday, before noon,
by a lady who explained to her in Spanish what the card
said, and that she, Lefkowitz, signed and dated it that
day, June 19, and handed it back to the lady.48
Lefkowitz then identified a Local 6 card as bearing her
signature but she, admitted that she could not remember
the surrounding details of her signing it.49 I examined
the signatures on both cards and found them to be the
same. Therefore, I find that Lefkowitz signed a card for
District 1199 on June 19, and a card for Local 6 on June
1, and I find that Lefkowitz signed dual cards before
June 22.
Betty Rankin credibly testified that she worked for
Respondent from March to July; that a lady working for
District 1199 handed her a card; that she filled it out,
signed and dated it June 5, at home;50 but that she does
not remember what she did with it thereafter. As for the
Local 6 card, Rankin states that she received it in the
mail; that her brother filled out the information on the
card; that she signed and dated it May 19, and mailed it
back to Local 6.51 I find, therefore, that Rankin signed
dual cards before June 22.
43 G C Exh 11
44 Both District 1199 and Local 6 use self-addressed business reply
cards (postage to be paid by addressee) for their authorization cards
Sec 2(11) of the Act, based on the duties she performs as enumerated 45 G C Exh 15 AJ
supra, I do not believe that such a resolution bears any weight in the final 45 G C Exh 15 BP
analysis of this case 47 G C Exh 13
3a In fact, the Local 6 card is dated May 7 48 G C Exh 20
40GC Exh 26 49 G C Exh 15 Cl, dated June 1
41 G C Exh 28 50GC Exh 10
41 G C Exh 24 51 G C Exh 15 DU
HUMAN DEVELOPMENT ASSN. 1237
Lynn Richardson credibly testified that she signed two
cards for District 1199 and one card for Local 6; that she
received the first card from District 1199 in April; she
signed and dated it and mailed it; that she signed Local
6's card in May;52 that she filled out, signed, and dated a
second Distnct 1199 card in June, and handed it to
Paynter.53 I find that Richardson signed dual cards prior
to June 22, one for Local 6 on May 25 and one for Dis-
trict 1199 on June 8.
Jennifer Spence credibly testified that while she
worked for Respondent she received a card in the mail
from Local 6; she filled it out, signed and dated it, and
mailed it .54 Later on, she received a card in the mail
from District 1199. Because she had heard from a friend
that District 1199 was a better union, she filled out that
card, signed and dated it and mailed it.55 I find from my
examination of the cards that Spence signed the Local 6
card on May 6 and the District 1199 card on June 7. I
hold, therefore, that Spence signed dual cards prior to
June 22.
Despite the efforts of Respondent and Local 6 to dis-
credit the testimony of these six employees, I find their
testimony plausible on its face and totally convincing and
believable. And, it should be noted, that no evidence was
produced by either Respondent or Local 6 to refute the
testimony of these witnesses. Neither conjecture nor sur-
mise can override their sworn, spoken, words and their
identification of the cards that they signed. And, except
for Spence who said she favored District 1199, none of
the other five employees expressed any preference for
either union. On that basis I find that these six employees
signed dual cards thereby affecting the majority status of
Local 6. Of the 100 employees in the appropriate unit
who signed cards for Local 6, 6 also signed cards for
District 1199 before Local 6 was recognized as the ex-
clusive bargaining agent of Respondent's home attend-
ants. Under established Board law these six cannot be
counted towards Local 6's majority.56 Thus, Local 6 is
left with 94 valid cards. It necessarily follows that Local
6 did not represent a majority of the 190 employees in
the appropriate unit at the time they were recognized,
i.e., June 22, 1981, and Local 6 was not, therefore, enti-
tled to be the exclusive bargaining agent. By granting
recognition under the circumstances, Respondent violat-
ed Section 8(a)(1) and (2) of the Act, and this is equally
as true without regard to the Respondent's good faith.57
F The Collective -Bargaining Agreement Executed on
June 24 and its Effect on the Unit Employees
It is undisputed that on June 24 , 2 days after Respond-
ent extended recognition to Local 6 , Respondent and
Local 6 executed a collective -bargaining agreement con-
taining a union -security clause and a dues-deduction au-
thorization clause .S11 Rabbi Gruenwald testified that pur-
suant to that agreement, Respondent began deducting
dues from the wages of home attendants in September
1981.59 Inasmuch as Respondent's recognition of Local 6
on June 22 was invalid, Respondent's execution and en-
forcement of its collective-bargaining agreement with
Local 6 was equally invalid. Under the circumstances, I
find that Respondent has violated Section 8(a)(1), (2),
and (3) of the Act, and I shall order Respondent to reim-
burse all present and former unit employees, except those
who joined or signed authorization cards for Local 6
prior to the execution of the collective-bargaining agree-
ment on June 24, 1981,60 for moneys paid by or with-
held from them on or after June 24, 1981, for initiation
fees, dues, or other obligations of membership in Local
6,61 with interest thereon computed in the manner de-
scribed below in the remedy section.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 6 and District 1199 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By recognizing Local 6 as the exclusive bargaining
representative of its home attendants, at a time when
Local 6 did not represent a valid majority of said em-
ployees, Respondent violated Section 8(a)(2) and (1) of
the Act.
4. By entering into a collective-bargaining agreement
covering Respondent's home attendants, which contains
a union-security clause, at a time when Local 6 did not
represent a valid majority of the home attendants, and by
enforcing the union-security clause, Respondent has vio-
lated Section 8(a)(1), (2), and (3) of the Act.
5. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As Respondent has been found to have engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
I shall recommend that (1) Respondent withdraw and
withhold all recognition from Local 6 as exclusive bar-
gaining representative of its home attendants, unless and
until Local 6 has been certified by the Board as the ex-
clusive collective-bargaining representative of home at-
tendants; (2) Respondent cease giving effect to the June
24, 1981 collective-bargaining agreement it executed with
Local 6, or to any extension, renewal, or modification
thereof; nothing herein, however, shall authorize or re-
52 GC Exh 15 DX
s8GC Exh 25 58 G C Exh 4
54 G C Exh 15 Z 58 Hold-ons, employees working less than 20 hours, probationary em-
55 G C Exh 12 ployees, and a priest, were exceptions to this practice
56 Intalco Aluminum Corp, 169 NLRB 1034 (1968), enfd 417 F 2d 36
(9th Cir 1969)
51 Ladies Garment Workers (Bernhard Altmann Corp) v NLRB, 366
U S 731 (1961)
60 This exception does not include the six home attendants whose
Local 6 cards were invalidated by their signing dual authorization cards
for Distnct 1199
81 Unit Train Coal Sales, 234 NLRB 1265 (1978)
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quire the withdrawal or elimination of any wage increase
or other benefits or terms and conditions of employment
which may have been established pursuant to the per-
formance of that agreement; and (3) Respondent shall re-
imburse all present and former unit employees, except
those who joined or signed authorization cards for Local
6 prior to June 24, 1981, for moneys paid by or withheld
from them on or after June 24, 1981, for initiation fees,
dues, or other obligations of membership in Local 6,62
with interest thereon computed in the manner provided
in Florida Steel Corp., 231 NLRB 651 (1977) (see general-
ly Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed63
ORDER
The Respondent , Human Development Association,
Brooklyn , New York, its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Recognizing or dealing with Local 6, International
Federation of Health Professionals , International Long-
shoremen 's Association , AFL-CIO, as the bargaining
representative of its employees in the appropriate unit
unless and until Local 6 shall have been certified by the
Board as the exclusive representative of such employees.
The appropriate unit consists of:
All home attendant employees employed by Re-
spondent excluding all RNs, guards, clerical work-
ers, personnel specialists and secretaries , guards and
supervisors as defined in the Act.
(b) Assisting Local 6 in any manner to become the col-
lective-bargaining representative of its employees in the
aforesaid appropriate unit
(c) Performing or giving effect to its contract of June
24, 1981 , with Local 6, or to any modification, extension,
supplement , or renewal thereof; to any dues-checkoff
cards executed pursuant thereto; or to any other con-
tract , agreement , or understanding entered into with
Local 6 or its successor , relating to grievances, labor dis-
putes, wages, rates of pay , hours of employment, or
other terms and conditions of employment, unless and
until said Union , or its successor , shall have been certi-
fied by the National Labor Relations Board ; provided,
however , that nothing in this Order shall authorize or re-
quire the withdrawal or elimination of any wage increase
of other benefits , terms, and conditions of employment
which may have been established pursuant to the per-
formance of said contract.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
62 This is exclusive of the employees who signed dual authorization
cards See fn 59, supra
63 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local
6 as the exclusive bargaining representative of its em-
ployees for the purpose of dealing with Respondent con-
cerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employ-
ment, unless and until the labor organization shall have
demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among Respond-
ent's employees, and shall have been certified by the
Board.
(b) Reimburse all present and former unit employees,
except those who joined or signed authorization cards
for Local 6 prior to June 24, 1981, for moneys paid by
or withheld from them on or after June 24, 1981, for ini-
tiation fees, dues, or other obligations of membership in
Local 6, with interest thereon computed in the manner
set forth above in the remedy section.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at its Brooklyn, New York place of business
copies of the attached notice marked "Appendix B."64
Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
64 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
LIST OF ELIGIBLE UNIT HOME
ATTENDANTS EMPLOYED BY
HUMAN DEVELOPMENT ASSOCIATION ON
JUNE 22, 1981
Alfred J . Krashonsky*
Alfred J.M. Kuchmirowska*
Altman Laguerre*
Alvarez Lazarre*
Amato Lefkowitz*
Andrew Lerouge*
Arrington * Lewis, A
Ashby Lewis, C.
Bailey Liburd*
Barrow*
Barthelemy
Benjamin*
Berman
Boucher*
Brodsky*
Cabrera
Calo*
Campbelle
Carnegie
Castillo
Champegne
Clebert
Coats
Cohens*
Connell*
Craig
Cruz*
Cukierman*
Cyprien
Damato
Danielewski*
Decasseres*
Delgaudio
Deutsch*
Diaz, C.
Diaz, L.
Dolce
Donofrio*
Dorleans*
Dufont
Duperval*
Eastman
Edelstein
Edwards
Etienne*
Ewart*
Faustin*
Feldman*
Fernandez
Forbes*
Fortune
Fowler
Francois
Gayzler
Gonzales
Gonzalez
Goode
Goroberts
Grant, A.
Grant, B.
Greenberg*
Greenfield
Griffith*
Grossman
Grunzweig
Hanley*
Harper
Hayes
Hendy*
Hernandez
HUMAN DEVELOPMENT ASSN.
Lopez
Louisaiare*
Lumpris
Lyublinsky*
MacDonado
Mann*
Manning
Marcel*
Martinez
Maxwell*
McCarthy
McDonald*
McLennan
Merzel
Mesquita
Michael*
Minto
Moontack*
Moore
Nakhmanovich*
Nieves*
Ovitsh*
Panya
Patrick
Paul, Patricia
Paul, Paulina*
Pereira*
Phillips
Pierre
Pointdjour
Porter*
Portnoy*
Potapousky*
Profis*
Proto*
Ramsaran
Rankin*
Rapaport
Reyes
Richardson*
Roitman*
Roldon*
Romero
Ronnie*
Rose*
Rosenberg*
Ross
Rouse
Sauage
Scheindel*
Scott*
Segal
Shames
Shindman*
Silberman*
Sinciha*
Smith
Solomon*
Soto
Spence, J.*
Spence, S.*
Herold
Herskowitz*
Hill*
Hills
Hirsch*
Hopkin*
Hughes
Hyacinth*
Jackson*
Jeffrey
Jerrick
Johnson, A.*
Johnson, J.*
Jolibois*
Jones
Karabas
Katz*
Kedsler*
Khaves
Khavkin
Kingston*
Klaynberg*
Klipper
Kogan*
Spira*
Stephen*
Stotland*
Strachan*
Sylvestre
Tarulli*
Toilia*
Thelot*
Theus*
Thomas*
Toe*
Tsivina*
Vasquez
Vernell*
Vitiello*
Voskoboynik
White*
Williams
Wilson*
Wint*
Yakir*
Young
Zakharyan
Zeitser
1239
* Denotes names of employees who signed valid au-
thorization cards for Local 6.
Meredith A. Fisher, Esq., for the General Counsel.
Carolyn H. Henneman, Esq. (Scoppetta & Seiff), for the
Respondent.
Sipser, Weinstock, Harper, Dorn , Leibowitz, Esqs., for the
Charging Party.
William Perry , President , for the Party to the Contract.
Jonathan Walters, Esq. (Kirschner, Walters & Willig), for
the Party to the Contract.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge. On
4 April 1985, I issued my decision in this proceeding, in
which, inter aha, I asserted jurisdiction over Respondent.
Thereafter, on 31 July 1986, the Board issued an order
remanding this proceeding to me for further consider-
ation of the jurisdiction issue, including if necessary, a re-
opening of the record, consistent with the Board's deci-
sions issued on 24 June 1986, in Res-Care, Inc., 280
NLRB 670, and in Long Stretch Youth Homes, 250
NLRB 678. On 12 December 1986, I advised the parties
to this proceeding that after having re-read the record
and the cases cited by the Board, I found the record suf-
ficiently adequate to permit me to respond to the Board's
remand without the necessity of reopening the record,
and requested the parties to file briefs to aid me in my
deliberations. Thereafter, counsel for the Charging Party
submitted a letter in support of its position that the
Board should assert jurisdiction over Respondent; the
City of New York submitted a brief as amicus curiae to
this proceeding, suggesting that the Board assert jurisdic-
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion over Respondent;' and Local 6 submitted a position
statement and reply brief urging me not to assert juris-
diction in this proceeding.
On the entire record, I make the following
FINDINGS OF FACT2
Local 6 raised the jurisdiction issue at the hearing al-
leging that the City of New York, an employer exempt
under Section 2(2) of the Act, exercises sufficient control
over Respondent's labor relations so as to prevent Re-
spondent from engaging in meaningful collective bar-
gaining with Local 6, thereby extending the 2(2) exemp-
tion to Respondent and removing it from the Board's ju-
risdiction. The issue was fully litigated through the testi-
mony elicited from Rabbi Gruenwald, Respondent's di-
rector, William Perry, Local 6's president, and Robert
Schick, director of the Bureau of Home Care Contract
Services for The Human Resources Administration
(HRA), a municipal agency of the City of New York.
The record in the instant case shows that all hiring
and firing of home attendants, the collective-bargaining
unit of employees involved, is done by the Respondent
without any supervision or guidance by HRA, the
exempt entity. Home attendants' qualifications are pre-
scribed by New York Department of Social Services and
carried out by the City of New York.3 The Employer
must determine for itself whether an employee is quali-
fied and it does not need nor get the approval of the
exempt entity. Moreover, if the employer needs addition-
al home attendants because of an increase in clients, the
Employer does not need the exempt entity's approval to
hire them.
Schick testified, without contradiction, that there are
certain funding issues that are addressed in the purchase-
of-service agreement that keep the city's liability to the
Respondent within certain limits. He readily admitted
that because the purchase-of-service agreement provides
for reimbursement of expenses to Respondent by the
city, the latter was naturally concerned with the amounts
of money expended by Respondent. And, he stated that
any collective-bargaining agreement arrived at between
Respondent and Local 6 would have an economic effect
on the monetary terms of the purchase-of-service agree-
ment . However, Gruenwald testified that after he had
completed negotiations with Local 6, at which the city
was not present, he did not seek authorization from the
city to enter into a final agreement, and no authorization
by the city was required. Gruenwald's sole concern
before signing such an agreement was to be certain that
there was enough money in the budget portion of the
purchase-of-service agreement to pay any negotiated in-
creases to employees.
i It is the close relationship between the City of New York and Re-
spondent that forms the basis for this inquiry
2 The facts stated are in addition to those facts set forth in my prior
decision , and together, they comprise the basis for my determination
3 The requirements are
(1) Home attendants must be 18 years of age or older
(2) They must possess a social security card
(3) They must possess a basic fluency in English
(4) They must be understanding of people and have a sympathetic atti-
tude
Schick further stated that additional items that con-
cerned the city, and that would have an impact on the
cost of the purchase-of-service agreement, included the
amount of the lease that Respondent would sign for the
premises it occupied, and the rental of computer serv-
ices. Gruenwald pointed out that the purchase-of-service
agreement limited, by a fixed amount, the money that
Respondent could spend for the purchase of a piece of
equipment. However, as long as the item's price was
below the fixed amount, Respondent could buy as many
of the items it wished without the approval of the city.
Perry introduced into evidence through Gruenwald,
the fiscal year 1984 percent value of sample wage in-
creases including fringe benefits for home attendants.4
Gruenwald testified that this document was prepared by
the city to aid Respondent, as a guideline in its negotia-
tions with Local 6, and that Respondent could not go
beyond the guidelines without the consent of the city.
Schick readily admitted that the purchase-of-service
agreement stated a specific monetary amount, known as
the hourly reimbursement rate, which it hoped was not
exceeded in a collective-bargaining agreement. In the
event it was exceeded, HRA would inform the Respond-
ent, or any other vendor, what the city's commitment
was limited to in the purchase-of-service agreement, and
advise the vendor that the city could not reimburse it for
the overage. Gruenwald contends that the city could
veto any collective-bargaining agreement negotiated be-
tween Respondent and Local 6 that exceeds the guide-
lines, but Schick disputes that.
On cross-examination by the General Counsel, Gruen-
wald admitted that the guideline figure used in Party to
Contract's Exhibit 27 could be split up in any manner
agreed to by Respondent and Local 6, and that the
guidelines do not discuss any noneconomic terms and
conditions of employment.
Perry introduced into evidence, through Gruenwald, a
series of letters and memoranda sent by either HRA or
HDA to the other entity, aimed at showing the connec-
tion between the two. These consisted of letters by HRA
approving the purchase of equipment,5 permission given
by HRA to all vendor agencies to increase salaries of
nurses,6 approval by HRA to HDA for the latter to shift
funds in its line budget so as to hire a field security
person,7 and HRA's approval of the resume of a person
for the position of assistant director for field operations
at HDA.8
The chief concern of Local 6 centered on the fact that
because HRA assumed the entire responsibility of pro-
viding health benefits to all home attendants through
Blue Cross/Blue Shield, it deprived Local 6 of the right
to discuss health benefits with Respondent during the
course of their collective-bargaining negotiations. In this
vein, Perry introduced into evidence the City of New
York's projected costs for the home attendants' health in-
surance program,9 and Local 6's desire to negotiate the
4 Party to Contract Exh 27
5 Party to Contract Exhs 16 and 23
6 Party to Contract Exh 18
7 Party to Contract Exh 17
8 Party to Contract Exh 25.
9 Party to Contract Exh 21
HUMAN DEVELOPMENT ASSN.
medical and hospital benefits with the City.' ° The city
rejected Perry's request."
Schick stated that the city held an informational meet-
ing with the vendor coordinating Council and union rep-
resentatives, to advise them regarding the cost of the
city's health insurance program, but not to discuss
whether the unions should take over the program.
Schick countered the testimony of Gruenwald and
Perry by explaining the city's interest in the negotiations
held between Respondent and Local 6. He stated that
the city looks at the collective-bargaining agreement to
see just what economic impact it will have on the pur-
chase-of-service agreement that the city has with the Re-
spondent. Schick admitted to having a conversation with
Perry regarding two issues. He said Perry called him to
find out how much of an increase there would be in the
hourly reimbursable rate allowed by the city to Re-
spondent in the purchase-of-service agreement, so as to
give Perry an idea what he could bargain for in his ne-
gotiations with Respondent. Schick says he made it clear
to Perry that that issue was strictly between Local 6 and
HDA, and HRA had no role in the negotiations. In the
same conversation, Perry and Schick also discussed the
status of some retroactive pay that was due Respondent's
home attendants. Schick stated that there was no require-
ment that copies of communications between HDA and
Local 6 be sent to HRA. Schick pointed out that even
though the hourly reimbursement rate increase could not
exceed a fixed percentage, no limitation was placed by
the city on the Respondent as to how it was to be allo-
cated. Schick further stated that HRA plays no role in
disciplining Respondent's employees, nor in discharging,
promoting, scheduling working hours, establishing size of
work force, assigning home attendants, establishing work
rules, or setting up either a seniority or grievance
system.
On cross-examination by Perry, Schick reiterated the
fact that the purchase-of-service agreement between
HRA and HDA defines the responsibilities of both, and
that by signing the agreement they agreed to live within
its boundaries. Thus, the agreement provides a dollars-
per-hour reimbursement rate that HRA pays to HDA for
the hours of service home attendants perform for clients.
If there is money left over in the budget, and HDA did
not exceed the limit set, HDA could give the employees
more money up to the limit; however, if HDA exceeds
the limit, HRA will not reimburse HDA. This is not to
say that HDA sets the employees' wages. Wages are ne-
gotiable, within limits, between HDA and Local 6.
Schick further stated that HDA could sign a lease with-
out showing it to HRA, but HRA will only reimburse
HDA for the amount specified in the budget, which is
part of the purchase-of-service agreement . In addition,
Schick pointed out that the purchase-of-service agree-
ment provided that HRA has the right to purchase
health care insurance for HDA's employees, which it
did, but if there is a problem, HDA must contact the
health care carrier directly.
10 Party to Contract Exh 26
11 G C Exh 45
1241
Once a year, HRA monitors the quality of service
being performed by the home attendants. If it is deter-
mined that the service is not up to standard, HRA noti-
fies HDA to correct it. If, on reexamination, the situation
is not corrected, HRA will not do anything in the par-
ticular case; but HRA will use it in an overall evaluation
of HDA, and might not renew the purchase-of-service
agreement.
Analysis and Conclusions
Based on the Board law at the time I issued my deci-
sion in this proceeding, as stated in National Transporta-
tion Service,' 2 I decided to assert jurisdiction over Re-
spondent. In Res-Care, Inc., 280 NLRB 670 (1980), the
Board reaffirmed the basic twofold test it had enunciated
in National Transportation Service,13 but it went a step
further. The Board stated that from now on it would ex-
amine not only the control over essential terms and con-
ditions retained by the employer, but also the scope and
degree of control exercised by the exempt entity over
the employer's labor relations, in order to determine
whether the employer is capable of engaging in meaning-
ful collective bargaining. And, in Res-Care, the Board
concluded that because the exempt entity retained the ul-
timate discretion for setting wage and benefits levels,
thus precluding the employer from engaging in a mean-
ingful collective bargaining, it would not assert jurisdic-
tion over the employer. The Board found that although
the employer initially set the wage and benefit levels for
each job classification in its operating budget, the budget
required approval by the exempt entity and, once ap-
proved, it became the basis for the contract price. More-
over, 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 em-
ployee benefits. Also, the labor contract specifically pro-
vided that any proposed changes in the approved wage
ranges or fringe benefit plans had to be submitted to the
exempt entity for approval, along with any proposed
changes in the staff manning table, labor grade schedule,
or salary schedule.
On the very same day that the Board issued its deci-
sion in Res-Care, it also-issued its decision in Long Stretch
Youth Home, 280 NLRB 678 (1986), in which it dis-
cussed the very same issue , and in which it asserted juris-
diction over the employer. In Long Stretch, the Board
found that the exempt entity did not exercise ultimate
discretion over wage and benefit levels. Although the
employer does submit to the exempt entity, with its ini-
tial license application , minimum-maximum salary ranges,
as well as other personnel policies it may have, the
exempt entity does not maintain strict standards for the
content of those policies and the employer largely deter-
12 240 NLRB 565
12 The twofold test is
(a) Is the employer an employer within the meaning of Section
2(2) of the Act?
(b) Does the employer have sufficient control over the employ-
ment conditions of its employees to enable it to bargain with a
union?
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mines for itself what those salaries and other policies will
be. The Board stated that the exempt entity's salary
ranges were merely guidelines , as was its policy of sug-
gesting a percentage limit of the employer 's budget for
salaries. Also, the employer did not have to obtain prior
approval from the exempt entity for changes in personnel
policy. Another distinction drawn by the Board, as com-
pared to Res-Care, is that in Long Stretch the wage and
benefit levels approved by the exempt entity were not di-
rectly tied to funding . Even though Long Stretch submit-
ted a proposed operating budget for review and approval
each year of the exempt entity, the proposed salary
ranges and benefit levels were not submitted with the
budget , but with the initial license application and at re-
evaluation . Also, in Res-Care, the total salaries and bene-
fits were one component of the employer 's operating
costs, and the total of the operating cost plus a fixed fee
became the contract price upon approval of the employ-
er's bid. Not so in Long Stretch. The Board found that
the exempt entity had little or no control over the setting
of salaries , the content of the benefits provided, or the
content of other personnel policies, as long as Long
Stretch satisfied minimum standards and qualifications. In
addition, even though the exempt entity did exercise
some control over the employer 's hiring and firing, and
did require that employees meet certain minimum qualifi-
cations for certain positions , the Board found these to be
minimal limitations on Long Stretch's authority and did
not significantly limit its ability to engage in meaningful
bargaining.
In the instant case , it is clear that HDA is not a Feder-
al agency and thus is not exempt under Section 2(2) of
the Act . It also is clear that HDA employs employees as
defined in Section 2(3) of the Act. My only inquiry,
therefore , goes to the question : Should I decline to assert
jurisdiction because of the extent to which the City of
New York , an entity exempt from the Board 's jurisdic-
tion , controls the employment conditions of HDA's em-
ployees? Is the relationship such as to prevent HDA
from engaging in meaningful collective bargaining with
Local 6?
Having examined the record and the current Board
law as expressed in Res-Care and Long Stretch, I find
that , unlike the employer in Res-Care, HDA does retain
sufficient control over economic terms and conditions of
employment to allow it to engage in meaningful collec-
tive bargaining . The creditable testimony of Schick es-
tablished the fact that while the City of New York moni-
tored HDA 's performance in providing services under
the purchase -of-service agreement , such monitoring con-
sists largely of operational controls and is not so restric-
tive as to preclude HDA from engaging in meaningful
collective bargaining . As stated by Schick, HRA only
seeks to advise HDA and not to order it, and HRA
cannot prevent HDA from signing a collective -bargain-
ing agreement with Local 6. Moreover , HDA determines
for itself the size and composition of its work force; it
hires, promotes , and disciplines its employees without in-
terference by the exempt entity; it is free to bargain with
Local 6 as to the nonmonetary terms and conditions of
employment of the home attendants ; and, within limits, it
bargains freely with Local 6 with regard to wages and
other economic fringe benefits . As stated by the Board at
footnote 14 of its Long Stretch decision, "Courts have
held that employers do not lack the freedom to bargain
effectively over wages and benefits simply because they
are subject to budgetary limitations because of their de-
pendance on public funds. In the absence of specific
limits on employee compensation expenditures , such as
were present in Res-Care , the fact that the government
entity places an effective ceiling on such expenditures by
limiting the private employer 's total budget is not the
type of control over labor relations that would cause us
to decline to assert jurisdiction . [Citations omitted.]"
In only one area , of HDA 's employment relations does
HRA have exclusive control , and that is health insur-
ance . The City of New York contracts, on behalf of all
home attendants, with a nonprofit private institution to
provide them with health care services . This matter was
the subject of discussion among the vendors, unions, and
HRA, and no evidence was introduced to show that
either the unions or the vendors were dissatisfied with
the arrangement , or that some other arrangement would
be more cost efficient . Under the circumstances , I do not
find that the degree of control exercised by the exempt
entity in this one area is sufficient to interfere with Re-
spondent 's ability to bargain in a meaningful manner
with Local 6 regarding all other terms and conditions of
employment of Respondent's home attendants.
In the instant case, I find that the general overall
review exercised by HRA over HDA does not sufficient-
ly deprive HDA of the ultimate control over essential
terms and conditions of employment to preclude it from
engaging in meaningful collective bargaining . I find that
the actions of HRA do not rise to a level that impinges
on either the day-to-day operations of HDA or on
HDA's ultimate control of labor relations . Accordingly,
I conclude that it will effectuate the purposes and poli-
cies of the Act to assert jurisdiction.
As a result of the foregoing supplemental findings of
fact , and in light of the Board's decisions in Res-Care and
Long Stretch , I reaffirm my original conclusion that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
that the Board should assert jurisdiction over Respond-
ent.