Memorial Medical

National Labor Relations Board - Board Decisions

Jul 19, 1977

230 N.L.R.B. 976 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National G. South, Inc., a wholly owned subsidiary of
National Living Centers, Inc., a wholly owned
subsidiary of ARA Services, d/b/a Memorial
Medical ' and Retail Clerks Union, Local No. 455,
Retail Clerks International Association, AFL-
CIO, Petitioner. Case 23-RC-4440
July 19, 1977
DECISION AND DIRECTION OF
ELECTION
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held on October 19 and November 8 and
9, 1976, before Hearing Officer Frank L. Carrabba.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure, Series
8, as amended, and by direction of the Regional
Director for Region 23, this case was transferred to
the National Labor Relations Board for decision.
Thereafter, briefs were filed by the Employer and
Petitioner, both of which have been duly consid-
ered. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. His rulings are
hereby affirmed.
Upon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all
nonsupervisory employees, including licensed voca-
tional nurses and service and maintenance employ-
ees, at Memorial Medical Nursing Home in San
Antonio, Texas.
The Employer contends that a unit limited to
employees at the single nursing home is inappropri-
ate and that the petition herein should be dismissed.
The name of the Employer appears as amended at the hearing.
2 The Employer's request for oral argument is hereby denied, as the
230 NLRB No. 140
The Employer asserts that Memorial Medical is an
integral part of a group of approximately 89 nursing
homes in the State of Texas, and that the appropriate
unit is either a single statewide unit of employees at
all 89 nursing homes, or, in the alternative, a regional
unit of employees in National Living Centers, Inc.'s
nine nursing homes in the central Texas region.
The parties are also in disagreement as to the
composition of the appropriate unit, the Petitioner
seeking and the Employer resisting the inclusion of
licensed vocational nurses in a unit which would
otherwise include only service and maintenance
employees.
There is no prior bargaining history as to any of the
Employer's employees involved herein.
National Living Centers, Inc., is engaged exclusive-
ly in the operation of some 89 nursing homes situated
throughout the State of Texas. Some of the nursing
homes are owned directly by National Living
Centers, Inc., and some are owned indirectly through
the ownership of all outstanding shares of stock in
subsidiary corporations. National G. South, Inc.'s
ownership of Memorial Medical is an example of the
latter. From the record it appears that, where such a
relationship exists, the subsidiary corporation exer-
cises no independent control over the nursing home,
and the relationship between an individual nursing
home and National Living Centers, Inc., is therefore
unaffected by the presence of the intermediate
corporation. While ARA Services, Inc., owns all the
stock in National Living Centers, Inc., the record
indicates that the corporate officers are different, and
that National Living Centers, Inc., has an existence
independent of ARA Services, Inc. On the basis of
the foregoing, National Living Centers, Inc., will
hereinafter be referred to as the Employer.
The Employer's central office is located in Hous-
ton, Texas. Overall policies, procedures, and stan-
dards are formulated in this office, compiled in
manuals, and sent to the administrator of each
nursing home. Budgetary and staffing requirements
for the individual homes are determined at this level,
as well as job descriptions, wage scales, and fringe
benefits. Various departments of this office also
perform the following functions: billing patients,
operating a purchasing department and an account-
ing department, administering government contracts,
operating a payroll, and maintaining records on all
nursing home personnel and patients. Additional
personnel are employed to develop in-service educa-
tional materials to be administered in the individual
homes. Finally, a central quality control team
inspects the homes of the Employer twice a year and
reports back to the corporate president.
record and briefs adequately present the issues and the positions of the
parties.
976
NATIONAL G. SOUTH, INC.
None of the Employer's nursing homes uses the
corporate name. Without exception they do business
under assumed names, such as Memorial Medical,
Green Acres, Sunny Acres, and Golden Years Rest
Home. This double identity is highlighted by the
exclusive use of the assumed name in information
brochures for prospective patients and their families,
and personnel policy manuals for employees distrib-
uted at each individual nursing home. While these
publications are written at a central location, and are
uniform in content, a distinct set of publications is
prepared for each nursing home, and no mention is
made in any of them that National Living Centers,
Inc., is the owner of the facility.
According to the Employer's executive vice presi-
dent, the Employer is involved to a certain extent in
the day-to-day operations of the individual homes.
He stated that although hiring is done at the local
level, the central office may cause an employee to be
"dehired" if personnel records sent to the central
office indicate that the employee fails to meet the
minimum standards of the job classification. Like-
wise, he stated that if a local administrator disci-
plines or discharges an employee in a manner
inconsistent with established corporate guidelines the
employee may seek redress through a grievance
procedure which provides for appeals up to the
corporate level. However, it is clear that such
personnel actions are the exception and not the rule.
Finally, the executive vice president testified that he
visited Memorial Medical five or six times during the
previous year for at most half a day at a time.
The Employer employs approximately 4,400 work-
ers in all of its nursing homes. In the 6 to 10 months
preceding the hearing, there were approximately
280-300 permanent transfers throughout the entire
system of nursing homes. The Employer provided no
breakdown detailing how many of these transfers
involved supervisory personnel and how many
involved nonsupervisory employees. Moreover, the
record contains no evidence of the number and
classification of employees who have transferred into
and out of Memorial Medical. Furthermore, no
evidence was introduced regarding temporary trans-
fers.
The Employer's operations are administratively
divided into geographic regions. Each regional office
has a separate staff and is given certain responsibili-
ties regarding the operations of the nursing homes in
its jurisdiction. Its basic responsibility is to see that
the policies, standards, and procedures centrally
formulated are being properly implemented at the
local level. The record does not indicate how often
:' The record is devoid of any significant evidence which might indicate
that the three nursing homes in San Antonio comprise an appropriate unit,
and neither party herein has asserted that such is the case.
regional employees visit the individual nursing
homes, but daily contact is maintained by telephone.
The officer in charge of the regional office has the
power to hire, fire, and resolve grievances, but, as
previously stated, most of these decisions are made
locally. Although the central office establishes the
wage range for each job classification, these wage
ranges vary among the regions, and the exact wages
paid at the individual nursing home may vary within
the range, depending on local market conditions.
Memorial Medical is one of nine nursing homes
operated by the Employer in the central Texas
region, which also includes two other homes in San
Antonio besides Memorial Medical. 3
The administrator of each individual nursing home
is responsible for the day-to-day operations of the
facility in his or her charge. Although staffing
requirements are centrally controlled, the administra-
tor does most of the hiring, firing, and disciplining.
The administrator or assistants are responsible for
the orientation of the employees, the scheduling of
employees' workdays and vacations, and the overall
operation of the nursing home.
In compliance with state law, all the Employer's
nursing homes have executed agreements with
several other nursing homes providing for the
transfer of patients. These agreements exist between
homes that provide both identical and nonidentical
services. Other nursing homes operated by the
Employer provide services not available at Memorial
Medical, including mental health, mental retarda-
tion, and pediatric services, but none of these nursing
homes is in the same regional grouping as Memorial
Medical. There is no evidence detailing the exact
parties to these contracts or the existence or
frequency of patient transfers.
After carefully considering all the facts herein and
the entire record, we find that Memorial Medical
operates with sufficient autonomy, and that conse-
quently the employees at this individual facility
constitute an appropriate unit for collective-bargain-
ing purposes. In reaching this conclusion, we are
fully aware that most of the Employer's policies and
procedures are centrally controlled and basically
uniformly applied to the various individual facilities.
The Board has held that such centralization and
uniformity does not necessarily render a unit at a
single facility inappropriate. 4 On a day-to-day basis,
the administrator at Memorial Medical retains a
significant degree of control in the direction and
retention of employees in her charge. She has the
authority to hire and fire, orients new employees,
schedules vacations, and is directly responsible for
4 Salvation Army, Inc., 225 NLRB 406 (1976): Schwob Foods. Inc., dbia
Scotts IGA Foodliner. 223 NLRB 394 (1976): AlleghenT Pepsi-Cola Bottling
Company, 223 NLRB 45 (1976).
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the adequacy of the services rendered the nursing
home occupants. From these facts, we find that the
employees at Memorial Medical share a community
of interest with each other that is of far greater
weight and immediacy than any possible commonali-
ty they might feel with 4,400 nursing home employ-
ees scattered throughout the State of Texas.
Although the record is far from clear on this point,
it appears that the degree of interchange among
nonsupervisory employees is negligible. The Employ-
er's evidence indicates that, at most, 2 nonsuperviso-
ry employees out of approximately 85 in the
petitioned-for unit had transferred into or out of
Memorial Medical in the 6 to 10 months preceding
the hearing. We therefore conclude that employees at
Memorial Medical comprise a distinct and stable
grouping of employees.
The cases cited by the Employer to support the
argument that a statewide or regionwide unit is the
smallest appropriate unit are readily distinguishable.
In Saddleback Community Hospital, 223 NLRB 247
(1976), the Board held inappropriate separate units at
the employer's hospital and medical clinic. However,
in Saddleback, those two facilities were in close
proximity to one another, separated by a distance of
only 400 feet, and the employees therein had
significant contact with one another. In the instant
case, on the contrary, the distances between homes,
even within the central Texas region, may exceed 100
miles. In Kaiser Foundation Health Plan of Oregon,
225 NLRB 409 (1976), the Board held inappropriate
a unit of psychotherapists at a single health clinic,
since the clinic was highly integrated with the
employer's eight other facilities in the Portland,
Oregon, metropolitan area. This case is not control-
ling not only because of the lesser distances between
facilities in Kaiser, but also because some of the
psychotherapists therein regularly performed work at
some of the employer's other facilities. Finally,
Mercy Hospitals of Sacramento, Inc., 217 NLRB 765
(1975), is distinguishable since the hospitals in the
' The Employer has asserted that congressional intent underlying the
1974 amendments to the Act, specifically the charge to prevent undue
proliferation of bargaining units in the health care industry, renders
inappropriate a unit of nursing home employees, if these employees work in
a single facility of a multifacility operation. Mercy Hospitals of Sacramento,
217 NLRB 765 (1975). We find the Employer's argument to be unpersuasive
in this regard. All references in the appropriate legislative history cautioning
against undue proliferation of bargaining units in the health care field refer
to matters involving unit composition, that is, the types of employees to be
represented in a bargaining unit, which consequently determine the number
of bargaining units with which any single institution must collectively
bargain. This limitation on congressional intent is aptly illustrated by
Senator Taft's comment that such cautionary language was meant "to stress
the necessity to the Board to reduce and limit the number of bargaining
units in a health care institution." 120 Cong. Rec. S. 6940 (1974) (emphasis
supplied). Senator Taft's primary concern was that a high degree of unit
fragmentation within any single facility would fosterjurisdictional disputes
and strikes by small units of employees which would seriously hamper the
operations of the entire facility. In the present instance we are concerned
multifacility unit found appropriate therein were
separated by a distance of only 13 miles, were
functionally integrated, and regularly interchanged
supplies, equipment, and support personnel.
Thus, we conclude that the unit sought by the
Petitioner is an appropriate unit for collective-bar-
gaining purposes.5 Accordingly, we shall direct an
election among the employees petitioned for with the
exclusions and inclusions discussed hereafter.
As previously stated, the unit petitioned for
includes licensed vocational nurses (LVNs) as well as
service and maintenance employees. The Employer
seeks to have the LVNs excluded from the unit on
the basis that they are technical and supervisory
employees. From the record in this case it appears
that the LVNs, who are examined and licensed by
the State after a year of specialized training, spend
approximately 25 percent of their working time
administering medication and performing other
specialized duties. However, the record also clearly
indicates that the LVNs, in providing nursing care
for the residents, work in close association with the
nurses aides and orderlies, whose inclusion in the
unit is not in issue. The LVNs and the aides and
orderlies are hourly paid, work identical schedules,
are both under the supervision of the director and
assistant director of nursing, perform their duties in
the same area, and consequently have substantial
and frequent contact with each other. In view of the
above indicia of a common community of interest, it
does not appear that the LVNs should be excluded
from the unit solely on the basis that they are
technical employees who perform certain distinct
functions. Here, it should be specifically noted, the
Petitioner seeks to include the LVNs in a broad unit
of nursing home employees. It has long been settled
that the unit sought need only be an appropriate unit,
not the most appropriate unit.6 In previous cases the
not with unit composition, but with unit scope, that is, the consideration of
whether the appropriate unit of employees is to comprise the employees at a
single facility or at several. Congressional intent regarding undue prolifera-
tion of bargaining units has no bearing on this issue because jurisdictional
disputes and work stoppages at one facility would hardly interfere with the
operation at other facilities of a single employer. We reaffirm prior policy
that in chain operations, including health care facilities, single-facility units
are presumed appropriate. In this case the Employer has presented
insufficient evidence to rebut this presumption.
It should be noted that this is not the first time that the Board has been
faced with this exact issue. We have recently decided a case in which the
petitioner therein requested a unit of employees at a single hospital and the
employer objected to the appropriateness of such a unit since the employer
owned 13 other hospitals, including one in the same city as the hospital
containing the employees in the petitioned-for unit. Saint Anthony Center,
220 NLRB 1009 (1975). In that case, we directed an election at the single
hospital.
6 Morand Brothers Beverage Co., 91 NLRB 409. enfd. 190 F.2d 576 (C.A.
7, 1951).
978
NATIONAL G. SOUTH, INC.
Board has included employees similar to those LVNs
in broader units of health care employees.7 On the
basis of the above, we find that the LVNs share a
substantial community of interest with the other
employees in the unit.
The Employer also asserts that all of the LVNs
should be excluded from the unit on the ground that
they are supervisory. The Employer claims that the
LVNs, whom it also calls "charge nurses," 5 assign
duties to nursing personnel, discipline employees,
recommend additional staff or new employees,
excuse employees from duties, discharge or suspend
employees from the LVNs' station, recommend
discharge from the home, and excuse absences. The
record reveals, however, that the Employer bases its
claim on the testimony of the Employer's executive
vice president, George Hargrave. Hargrave is not
employed at the San Antonio facility and stated he
has only visited Memorial Medical five or six times
in the past year, never for more than 4 or 5 hours at a
time. When questioned whether he had ever wit-
nessed the exercise of certain examples of the types
of supervisory authority he claimed LVNs possess, he
denied ever having seen LVNs so act. Therefore, his
testimony is, at best, probative only of overall
company policy. Witnesses who are employed at
Memorial Medical, on the other hand, described a
completely different picture of the functions of the
LVNs employed there. They stated that the director
of nursing or her assistant hires new employees,
schedules nursing employees, corrects timesheets,
grants time off, and is involved in temporary
transfers of unit personnel. Additionally, the LVN
who testified stated that she never disciplined
employees, sent them home, recommended dis-
charge, excused absences, or evaluated employees.
She acknowledged that she has recommended the
hiring of additional personnel, but added that
nothing resulted from her recommendation. She also
testified to having written "incident reports" on
others, but such reports were written only upon the
request of the director of nursing, who subsequently
conducted an independent investigation of the
incidents involved therein. Any instructions given by
Mount Airy Foundation, d,/b'/a Mount Airy Psychiatric Center, 217
NLRB 802 (1975): Marquette General Hospitals Inc, 218 NLRB 713 (1975).
1 The record indicates that the director of nursing is officially classified
the LVNs to the other nursing employees are clearly
connected with providing patient care to the resi-
dents. Additionally, if the Board were to find that
LVNs are supervisors, this would lead to an
unusually high ratio of supervisors among nursing
employees, as there are approximately 16 LVNs and
only 37 nursing aides and orderlies. Based on these
facts, we conclude that the LVNs are employees
within the meaning of the Act," share a substantial
community of interest with the other included
employees, and shall be included in the unit found
appropriate.
For the reasons set forth in Morristown-Hamblen
Hospital Association, 226 NLRB 76 (1976), and St.
Catherine's Hospital of Dominican Sisters of Kenosha,
Wisconsin, Inc., 217 NLRB 787 (1975), we shall
include patient admitting clerks and patient records
clerks; for the reasons stated in The Clark County
Mental Health Center d/b/a The Mental Health and
Family Services Center, 225 NLRB 780 (1976), we
shall exclude those temporary employees hired
pursuant to governmental training programs. Finally,
the petition seeks to exclude the activity director, and
the Employer requests the exclusion of the patient
activities coordinator. We assume that both parties
are referring to the same employee and we shall
therefore exclude this employee.
In view of the foregoing, we shall direct an election
by secret ballot in the following unit found appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All regular full-time and part-time nonprofession-
al employees, including employees classified as
orderly, nurses aide, licensed vocational nurse,
housekeeping, maintenance, laundry, dietary,
patient admitting clerk and patient records clerk
employed at Memorial Medical Nursing Home,
San Antonio, Texas; but excluding professional
employees, the activity director (patient activities
coordinator), guards, confidential employees, and
supervisors as defined by the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
as a "charge nurse." and that the LVNs are only informally referred to as
charge LVNs or charge nurses.
9 Shaderest Health Care Center. 228 NLRB 1081 (1977).
979