Mental Health Services-Erie County South East Corp. V

National Labor Relations Board - Board Decisions

Sep 3, 1975

220 N.L.R.B. 96 (N.L.R.B. 1975)

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mental Health Services-Erie County South East
Corp . V and New York Council 66, AFSCME,
AFL-CIO, Petitioner. Case 3-RC-6157
September 3, 1975
DECISION AND DIRECTION OF ELECTION
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Raymond J.
Ratajczak. Following the hearing, and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of Pro-
cedure, Series 8, as amended, and by direction of the
Regional Director for Region 3, this case was trans-
ferred to the National Labor Relations Board for de-
cision . The Employer filed a brief in support of its
position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed.
Upon the entire record in this case , including the
Employer's brief, the Board finds:
1. The Employer, Mental Health Services-Erie
County South East Corp. V, is a nonprofit corpora-
tion organized under section 402 of the Not-For-
Profit Corporation Law of the State of New York.
The Employer is engaged in the business of organiz-
ing, coordinating, monitoring, and performing men-
tal health services in a designated geographical area
within the county of Erie, State of New York. The
Employer is party to a contract with the county
which sets forth the functions to be performed and
the consideration to be paid by the county for the
performance of such services.
The Employer fulfills its responsibilities by enter-
ing into subcontracts with established organizations
or groups on a consulting basis, dealing with such
problems as alcoholism, narcotic addiction, mental
stress, and also by setting up organizations to deal
with such problems. In addition, the Employer coor-
dinates and monitors the work of health agencies
which do mental health work in the geographical
area. The Employer may also directly perform men-
tal health services itself where no other organization
is available. Some of its mental health counseling
may be on an individual or group basis, involving
initial treatment, crisis intervention, and counseling
individuals with longtime mental problems for the
purpose of helping the individuals involved adjust to
community, work, or family situations. Its staff con-
sists mainly of social workers, who have done gradu-
ate work in psychology and related fields and have
had extensive work experience in the area of the care
and treatment of the mentally ill, and supporting per-
sonnel.
Although the county of Erie has "ultimate control"
over the Employer's activities, the relationship be-
tween the parties is a contractual one, and their re-
spective rights and obligations are spelled out in a
written agreement. Except for overall guides and
standards, the county does not have the authority to
tell the Employer how to conduct its day-to-day op-
erations.
The Employer develops job descriptions for the
various classifications of employees, interviews and
hires its own employees, determines their starting sal-
ary within an established range, develops its own
program of fringe benefits, and has the sole power to
discharge and discipline its employees. The
Employer's executive director has the ultimate re-
sponsibility of overseeing the work of the Employer
and is not subject to direct supervision or control by
the county. The only provision in its contract with
the county relating to labor relations merely requires
the Employer to furnish the county with the details
of any collective-bargaining agreements negotiated.
It is clear from the above that the Employer is a
health maintenance organization devoted to the care
of sick, infirm, or aged persons within the meaning of
the new Section 2(14) of the Act, effective August 25,
1974, which enlarged our jurisdiction in the health
field to include:'
[A]ny hospital, convalescent hospital, health
maintenance organization, health clinic , nursing
home, extended care facility, or other institution
devoted to the care of sick, infirm, or aged person.
[Emphasis supplied.]
Moreover, we find that the services provided by
the Employer are not so intimately connected with
the county of Erie as to consider it a joint-employer
with the county, or to justify the extension of the
county's exempt status as a political subdivision of
the State of New York under Section 2(2) of the Act
to the Employer.2 We further find that the Employer
1 P L. 93-360, July 26, 1974 The instant petition was filed on October 9,
1974.
2 See Herbert Harvey, Inc., 171 NLRB 238, 240 (1968); cf Ohio Inns, Inc,
205 NLRB 528 (1973), Current Construction Corp., 209 NLRB 718 (1974). In
asserting jurisdiction over this Employer , Member Fanning is not relying on
220 NLRB No. 18
MENTAL HEALTH SERVICES 97
exercised sufficient control over the wages, hours,
and other conditions of employment of its employees
to enable it to bargain effectively with the Union.'
The Employer's gross revenues for 1974 were
$234,000 and for 1975 will exceed $300,000. Approxi-
mately $10,000 in goods and services purchased dur-
ing the 1974 accounting period in connection with
the Employer's functions came from sources located
outside the State of New York.
As the Employer's annual gross income for the
current year will exceed the $250,000 jurisdictional
standard established by the Board for health care fa-
cilities, other than nursing homes and visiting nurse
associations, and as it has a substantial inflow of ma-
terials from outside of the State of New York, we
find that the impact of the Employer's operation on
commerce is sufficient to warrant assertion of juris-
diction herein, and that it will effectuate the policies
of the Act to do so.4
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
the Employer 's lack of initimate connection with the county of Erie, but
rather relies only on the Employer's degree of control over the working
conditions of its employees which enables it to bargain effectively with the
Union . See Member Fanning's dissenting opinion in Current Construction
Corp, supra, and Rural Fire Protection Company, 216 NLRB No. 95 (1975)
J See Yosemite Park and Curry Co., 172 NLRB 1740, 1741 (1968), Sis-Q
Flying Service, inc., 197 NLRB 195, 197 (1972).
4 East Oakland Health Alliance, 218 NLRB No 193 (1975)
4. While the Petitioner and the Employer agree on
the scope of the appropriate unit, they disagree as to
the unit placement of "program directors." As the
uncontroverted testimony in the record shows that
"program directors" effectively participate in the in-
terviewing and hiring of employees and use indepen-
dent judgment in supervising, assigning, and direct-
ing the work of unit employees, as well as having the
authority to discipline and effectively recommend
unit employees for promotion, we find that they are
supervisors within the meaning of the Act and shall
exclude them from the unit.
Accordingly, we find that the following employees
of the Employer at its Buffalo, New York, location
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act:
All secretary-receptionists, secretaries, crisis
counselors, and expeditors, employed at the
Employer's Seneca Street office; excluding all
program directors, executive secretary, executive
director, controller, direct service manager,
guards and supervisors as defined in the Acts
[Direction of Election and Excelsior footnote omit-
ted from publication.]
5 The Employer in its brief argues that the petition should be dismissed as
it intends to subcontract out its direct services function "before the end of
the calendar year," and it will maintain merely an administrative role No
date certain was named and such contemplated change seems either specu-
lative or dependent upon facts which are uncertain at present. We note that
Employer has a present budget for at least I year for the employees in the
appropriate unit Accordingly, we reject the Employer's contention See,
e g, Federal Electric Corporation, Western Test Range, 157 NLRB 1130, 1133
(1966).