Mt. Graham Community Hospital

National Labor Relations Board - Board Decisions

Jul 7, 1980

250 N.L.R.B. 433 (N.L.R.B. 1980)

MT GRAHAM COMMUNITY HOSPITAL
Mt. Graham Community Hospital and Retail Clerks
Union, Local 99, chartered by United Food &
Commercial Workers International Union,
AFL-CIO, CLC, Petitioner. Case 28-RC-3684
July 7, 1980
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered determinative chal-
lenges in an election held on September 14, 1979,1
and the Hearing Officer's report recommending
disposition of same. The Board has reviewed the
record in light of the exceptions2 and briefs, and
hereby adopts the Hearing Officer's findings3 and
recommendations as modified herein.
Jeannette Chavez: The Hearing Officer found
that Chavez at the time of the election was a Man-
power employee under the CETA (Comprehensive
Employment and Training Act) program who did
not have a sufficient community of interest with
other employees to warrant her inclusion in the
unit. We disagree.
As the Hearing Officer correctly noted, the goal
of the Manpower program is to provide individuals
with work experience to enhance their opportuni-
ties for unsubsidized employment within the public
or private sector. In line with that goal Chavez
was referred by the Arizona State Department of
Economic Security to the Graham County Man-
power Program (GCMP) as a candidate for the
federally funded CETA program. GCMP in turn
referred Chavez to the Employer for possible em-
ployment under the program. The Employer found
i The election was conducted pursuant to a Stipulation for Certifica-
lion Upon Consent Election The tally was 18 for, and 17 against. the
Petitioner; there were 5 challenged ballots
2 In the absence of exceptions we adopt pro forma the Hearing Off-
cer's recommendations with respect to the ballots of Eleanor Bruce, Lor-
raine Hardesty, and Jeff Hardwick, and as a result the challenges to the
ballots cast by Bruce and Hardesty are sustained and the challenge to the
ballot of Hardwick is overruled
I In agreement with the Hearing Officer we find that Joy Williams is
included in the unit. The stipulation of the parties specifically lists both
the classifications which are to be included (nurses aides, orderlies, main-
tenance employees, housekeeping employees, and dietary employees) and
those which are to be excluded (registered nurses, technical employees,
office clerical employees, professional employees and guards). Williams'
classification, physical therapy aide, is not included in either group How.
ever, as found by the Hearing Officer, Williams does share a community
of interest which closely aligns her with the included employees. Thus,
Williams as a physical therapy aide is closely aligned in interest with at
least the nurses aides and perhaps the orderlies She is not similarly
aligned with any of the excluded classifications Accordingly, we adopt
the Hearing Officer's recommendation that the challenge to her ballot be
overruled.
250 NLRB No. 60
Chavez acceptable and she went to work on Janu-
ary 2, 1979, as a nurses aide on a part-time basis.
Chavez was eligible to work under the program
for 6 months. 4 Pursuant to an agreement between
the Employer and GCMP, Manpower agreed to
pay Chavez for up to 30 hours per week 5 and
make the appropriate contributions to FICA and
state workmen's compensation.
Chavez, after an initial period of training, per-
formed the same duties as other nurses aides under
the same supervision. She received her check,
however, directly from GCMP on a different
payday from the other employees at the hospital,
and was paid $2.90 per hour rather than $2.96
which was the hourly rate for other nurses aides.
The higher rate of pay for the other nurses aides,
however, appears to be attributable to their being
experienced in the job, as the Employer, because of
the cost of training, has a policy against hiring
anyone without experience.
Chavez, like all employees who worked less than
32 hours a week, received only limited benefits,6
including a discount at the cafeteria. Unlike those
employees, however, Chavez did not earn any
credit for vacations,7 and she apparently was not
entitled to receive, as they were, double time for
working holidays.8 Furthermore, while other part-
time employees were eligible for discounts if they
availed themselves of the Employer's medical serv-
ices, the record does not indicate whether Chavez
would have been offered the same discounts had
she used such services. Finally, Chavez was subject
to a different grievance procedure from non-CETA
employees.
Chavez' participation in the CETA program was
originally expected to end July 14, 1979. But prior
to that date she was told that she would be hired
once her eligibility in the program expired. Subse-
quently, her eligibility was extended to September
15 and, when it then ended, she was placed on the
Employer's own payroll, which occurred on Sep-
tember 16, 1979.
In Mon Valley United Health Services. Inc., 238
NLRB 916 (1978), the Board, while acknowledging
4 This period was later extended to almost 9 months
s Although in July the maximum number of hours was increased II 40
hours, Chavez continued to work 30 hours per week or less
6 The Hearing Officer incorrectly compared the benefits receilsed hb
Chavez with those recei ved by employees who worked 32 hours or
more
? Vacation benefits were determined oin a fiormula based on the number
of hours worked
' The record is nlot entirely clealr ion this pOini\ sunce the record is sileint
as to whether Chasez in fact worked on an) holida), Htisscer. there is
nothing to indicate Manpower hwould hale paid Chase, more Ihan $2 10)
an hour if she worked on holidays
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it had excluded them in earlier cases,9 includ-
ed Manpower employees in a unit of that employ-
er's regular work force because "these employees
[have] substantially the same community of inter-
ests as do the other employees involved in this pro-
ceeding." In so finding, the Board relied on the
fact that "their wages, fringe benefits, and working
conditions are identical to those of the Employer's
regular employees." It found that the indefinite
length of employment for Manpower employees,
due to financial constraints facing the Manpower
program, was not a sufficient basis for excluding
them from the bargaining unit. The Board also
noted that the "assimilation of the unemployed and
underemployed into the Nation's work force is a
fundamental aim of Manpower in general . . . [and
that] no useful purpose [would be] served by ex-
cluding such employees . . . particularly in light of
the substantial work interests they share with other
unit employees."
Since Mon Valley, supra, the Board has included
CETA employees in the bargaining unit where
they share a substantial work interest with other
unit employees.' ° Our review of the facts here
leads us to conclude that Chavez shares such a
work interest with other nurses aides. Thus, she
performs the same work as they do under common
supervision. Further, her wage rate, while slightly
lower than that received by unit employees, is
comparable to theirs when the differing levels of
experience are taken into account. As to those
benefits which the Employer's regular part-time
employees working less than 32 hours a week re-
' See 238 NLRB 916, supra, citing The Clark County Mental Health
Center, d/b/a The Mental Health and Family Services Center, 225 NLRB
780 (1976); The Kent County Association for Retarded Citizens d/b/a J.
Arthur Trudeare Center, 227 NLRB 1439 (1977). The Hearing Officer
cited these last two cases in support of her finding that Chavez should
not be included in the unit.
'o The Workshop, Incorporated, 246 NLRB No. 145 (1979): Evergreen
Legal Services, 246 NLRB No. 146 (1979): Montgomery County Opportuni-
ty Board. Inc., 249 NLRB No. 103(1980).
ceived, Chavez received the meal discount but did
not receive vacation credit and probably could not
have received double time for working holidays. "
These differences, however, and the fact that a spe-
cial grievance procedure applied to her as a CETA
employee, 2 as well as the fact that she was paid
directly by GCMP on paydates which differed
from the Employer's, are outweighed by the simi-
larities in her working conditions with the afore-
mentioned part-time employees. Thus, we find that,
despite the relatively minor differences noted,
Chavez, as a CETA employee, shared a substantial
work interest with the Employer's regular employ-
ees and that, therefore, her inclusion in the unit
while employed in that capacity is warranted.13
Accordingly, we shall overrule the challenge to
Chavez' ballot and direct that it be opened and
counted.
DIRECTION
It is hereby directed that the Regional Director
for Region 28 shall, pursuant to the Rules and Reg-
ulations of the National Labor Relations Board,
within 10 days from the date of this Decision and
Direction, open and count the ballots cast by Jean-
nette Chavez, Jeff Hardwick, and Joy Williams and
thereafter prepare and cause to be served on the
parties a revised tally of ballots and issue the ap-
propriate certification.
I As noted above, the record is silent as to her eligibility for hospital
services.
12 Indeed. all CETA employees, regardless of the employer, are sub-
ject to a separate grievance procedure.
13 In Mon Valley, supra, the Board pointed to the fact that the employ-
er there attempted to absorb Manpower employees into the regular work
force. Here, since Chavez is the only CETA employee ever hired by the
Employer, it is unclear whether the Employer has such a policy. Howev-
er, we note that, as of July, theEmployer had already offered Chavez
regular employment when her CETA eligibility was finished and subse-
quently hired her as a regular employee when her status as a CETA-
sponsored employee terminated
434