Renaissance West Community Mental Health Center

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 441 (N.L.R.B. 1985)

RENAISSANCE WEST MENTAL HEALTH CENTER 441
Renaissance West Community Mental - Health Center
and Local 1640, American Federation of State,
County and Municipal Employees, AFL-CIO.
Case 7-CA-22310(2) -
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 5 March 1985 Administrative Law Judge
Hubert E. Lott issued the attached - decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the - recommended
Order. I -
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis=
missed. -
I In agreeing with the result reached herem , Chairman Dotson finds it
unnecessary to pass on the Respondent 's bargaining obligation as a suc-
cessor because the unit is inappropriate for bargaining under Sec . 9(b)(1)
of the Act
Ellen Rosenthal, Esq., of Detroit, Michigan, for the Gen-
eral Counsel.
Gregory Reed Esq., of Detroit, Michigan, for the Re-
spondent.
Kathleen Callahan, President Local 1640, AFSCME, of
Detroit, Michigan, for the Charging Party.
DECISION,
STATEMENT OF THE CASE
HUBERT E. LoTT, Administrative Law Judge. This
case was heard at Detroit, Michigan, - on November 28
and 29, 1983, on unfair labor practice charges filed on
June 29 and July 28, 1983, by Local 1640, American
Federation of State, County, and Municipal Employees,
AFL-CIO (the Union) against Renaissance West Com-
munity Mental Health Center (Respondent) and on the
complaint issued August 10, 1983.
The issues in this case are:
(a) Whether or not Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.- -
(b) Whether or not the Union is a labor organization
within the meaning of Section 2(5) of the Act.
(c) Whether or not-Respondent is a successor to Oper-
ation HOPE " and the West Central Division of New
Center Community Mental ` Health Services (New
Center).
(d) Whether or not the unit in question is an appropri-
ate bargaining unit.
(e) Whether or not Respondent failed and refused to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of its employees.
(f) Whether or not Respondent instituted a raise and
new personnel policies for its employees without prior
notice and bargaining-with the Union.
Respondent's answer to the complaint, duly filed,
denies the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard,
to call , examine , and cross-examine witnesses , and to in-
troduce relevant evidence. Since the close of the hearing,
briefs have been received from the parties in this case.
On the entire record and based on my observation of
the witnesses , and in consideration of the briefs submit-
ted, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a private, nonprofit corporation orga-
nized under the laws of the State of Michigan with its
office and place of business located at 13940 Tireman
Street, Detroit, Michigan: The Detroit-Wayne County
Community Mental Health Board (258 Board) was cre-
ated by Public Law 258 to disperse Federal, state, and
county funds for the provision of mental health services
to the citizens of Wayne County. Beginning on January
1, 1983, Respondent was under contract, with the 258
Board -to provide such services for the West Central De-
troit catchment area (geographic area) for which it re-
ceived $544,000 from State and local government and
$375,000 in Federal block grants. Respondent is required
by the 258 Board to provide five basic services to the
community: out-patient services, 24-hour emergency
services, partial hospitalization, precourt screening, and
consultation and education services; however, the 258
Board has no control over the labor relations of Re-
spondent who retains control over the terms and condi-
tions of employment of its employees. Respondent does
not dispute the amount of revenue received or the source
of the revenue, but instead contends that the Board has
declined to assert jurisdiction over nonprofit organiza-
tions such as Respondent citing cases that predate the
1974 health care amendments to the National Labor Re-
lations Act. I find based on the -evidence in this case that
Respondent is ,a health care -institution within the mean-
ing of Section 2(14) of the Act. Youth Guidance Center,
263 NLRB 1330 (1982). I further find that Respondent's
participation in the Federal block grant program and its
receipt of Federal funds, which obviously comes from
out-of-state sources, demonstrate that Respondent's oper-
ations have a substantial impact' on commerce. East Oak-
land Community Health Alliance, 218 NLRB 1270 (1975);
Malcom' X Center for Mental Health, 222 NLRB 944
(1976). Since Respondent has'complete control over its
personnel and labor relations, I find that it is engaged in
276 NLRB No. 50
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Respondent denies that the Union is a labor organiza-
tion although it offered no evidence or argument in sup-
port of its denial. The undisputed evidence indicates that
this Union has collective-bargaining agreements with 41
private nonprofit employers. The Union represents the
employees covered by these agreements which have pro-
visions relating to wages; hours, and conditions of em-
ployment. At duly conducted union- meetings, the em-
ployees represented by the Union discuss the terms and
conditions of the agreements before ratifying them.
Based on the above evidence, I find that the Union is a
labor organization within -the meaning of Section 2(5) - of
the Act. .
II. THE ALLEGED UNFAIR LABOR PRACTICES
Operation - HOPE was established to provide mental
health services , i.e., outpatient services , 24-hour emer-
gency services, partial hospitalization, precourt screening
and consultation , and education services for the citizens
living in the West Central- catchment area of Detroit Its
offices were located at 13940 Tireman Street and its di-
rector was Dr. Wilhelmenia Howell . Sometime after Oc-
tober 1 , 1981, Operation HOPE contracted with the 258
Board to provide the above services.
On May 1 , 1979, Michigan Council No. 25 AFSCME,
AFL-CIO, was certified by the Michigan Employment
Relations Commission as the exclusive bargaining repre-
sentative of the employees of Operation HOPE in a unit
consisting of.
All clerk typists, secretaries, billing clerks , special-
ists , accountants , intake clerks , medical records li-
brarians, building attendants , therapists , art recrea-
tion and occupational therapists , and community
mental health' workers; excluding , confidential em-
ployees and supervisors as defined by the Act.
Thereafter, pursuant to the policies of the International
union , the bargaining unit was placed within the jurisdic-
tion of Local 1640 (the Union). Union President Kath-
leen Callahan subsequently negotiated a collective-bar-
gaining agreement extending from March ' 1 , 1980, to
September 30, 1981, for the employees of -Operation
HOPE in a contract unit which is identical to that of a
certified unit . After the expiration of the - collective-bar-
gaining agreement , the Union attempted to negotiate a
new contract but was unsuccessful . A new agreement
was never successfully negotiated with any of the parties
in this case . The parties did verbally agree to apply the
terms of the old agreement up until the time the 258
Board terminated its contract with Operation HOPE.
On July 21, 1982, the 258 Board terminated its con-
tract with Operation HOPE and entered into an agree-
ment with New Center to provide the same services in
the same catchment area . This agreement was finalized in
a signed contract dated August 25, 1982. The . same serv-
ices were continued without interruption from the same
location , to the same clients. New Center retained Dr.
Howell as its director and all the employees formerly
employed by Operation HOPE . In an agreement execut-
ed on September 11, 1982, New Center agreed to recog-
nize the Union and further agreed to maintain the Oper-
ation HOPE employees in a separate unit, covered by
the old collective-bargaining agreement. The agreement
further stated that, in the event of layoffs, "the West
Central unit will be seen by the New Center administra-
tion as an individual unit, separate and apart from the
New Center CMHC unit and staff." Job classifications
remained the same as those set forth in the prior contract
with Operation HOPE. Furthermore the terms including
dues checkoff of the expired agreement were adhered to
by New Center management. •
New Center ceased operations for the West Central
catchment area on December 31, 1982, and so informed
the Union by letter dated December 20, 1982. It further
informed the Union that Renaissance West would assume
its responsibilities for the West Central catchment area
on January 1, 1983. By letter dated December 30, 1982,
Jane Everhart, president of the board of directors for
Respondent, informed the Union that all employees of
New Center were terminated; however, they would be
retained until such time as Respondent could review per-
sonnel files in an effort to determine whether to continue
their employment permanently. Respondent contracted
with the 258 Board to provide the services formerly pro-
vided by New Center effective January 1, 1983. Re-
spondent continued without interruption to provide the
same services to the same clients in the same catchment
area at the same location on Tireman Street, using essen-
tially the same equipment and supplies which were left
by New Center. When Respondent commenced oper-
ations, it retained all the New Center staff which consist-
ed of 23 employees and 9 supervisory and management
personnel. On January 5, 1983, it discharged 7 employees
and 1 supervisor, retaining 16 former New Center em-
ployees and 8 supervisory and management personnel
who received the same wages and benefits as they had
been receiving when employed at New Center.
Although some job classifications were changed in
mid-January 1983, the General Counsel presented evi-
dence on the unit issue as follows:
1. Community care giver technician under Respondent
performs the work of community mental health worker.
2. Respondent has occupational therapists although the
Union was not aware of it.
3. It is questionable whether or not .Respondent em-
ploys art and recreational therapists.
4. Although Respondent employs secretaries, the
Union is not sure whether it employs clerk typists.
5. Both New Center and Respondent employ intake
clerks. ' - -
6. It is unclear whether-or not Respondent employs
medical records librarians.
7. Respondent employs quality assurance person who
keeps some client records but it is unclear whether New
Center employed quality assurance person. °
8. Both Respondent and New Center employed build-
ing attendants , but it is unclear whether -that job classifi-
cation exists at Respondent.
9. The General Counsel is without knowledge whether
or' not Respondent employs specialists.
RENAISSANCE WEST MENTAL HEALTH CENTER
10. Both Respondent and New Center have a fiscal de-
partment but the General Counsel is without knowledge
as to whether or not Respondent employs accountants.
11. Both New Center and Respondent employ psychia-
trists.
Respondent presented unit evidence that it employs a
psychometrician who is a therapist who performs psy-
chological testing. _
The first week of January 1983 Callahan contacted
Howell,rtwho was then director at Renaissance West, and
asked for a meeting to discuss the discharged employees,
accrued sick leave, and vacation benefits for retained em-
ployees and wages under the expired agreement.' The
parties met on January 7, 1983, at the Tireman address.
Callahan and Howell discussed the reasons for discharg-
ing the seven employees and the Union felt Respondent's
reasons were inadequate. Howell apparently made no re-
sponse. They discussed accrued benefits and Howell indi-
cated that Respondent was not responsible for honoring
any accrued benefits. Callahan told Howell that retained
employees should not have to apply for a job as a new
employee and Howell made no response. Callahan told
Howell that the Union considered the expired Operation
HOPE agreement to be in effect and requested more
meetings. Howell refused to respond to the agreement
but agreed to further meetings.
Four or five subsequent meetings were held between
Callahan and Howell wherein Callahan was permitted to
review the personnel files of the discharged employees;
however, Howell refused to discuss the reasons for dis-
charge with Callahan. On January 26, 1983, Callahan
sent Howell a letter requesting that the discharged em-
ployees either be reinstated or that their grievances be
processed. Everhart responded to Callahan's letter by
her letter dated February 2, 1983, wherein she informed
Callahan that Respondent had no contract with the
Union. Thereafter, Callhan's attempts to contact Howell
were unsuccessful.
Everhart testified that since January 1, 1983, Respond-
ent has not recognized the Union and will not bargain
with the Union because there is no contract between the
parties. She testified that Respondent is a separate entity
from that.of New Center and since there is no signed
agreement, Respondent is under no duty to bargain col-
lectively -with the Union.
The parties stipulated that during February 1983, Re-
spondent instituted new personnel policies relating to
leave time, vacations, and fringe benefits which were dif-
ferent from those that had previously existed. The parties
further stipulated that in the latter part of February 1983,
Respondent gave a wage increase to all its employees.
The testimony indicates that the Union was never noti-
fied by the Respondent of these actions.
. On January 31, 1983, the Union filed a representation
petition with'the Michigan Department of Labor. This
petition which was withdrawn on February 28, 1983,
does not include art and recreation therapists or occupa-
tional therapists. The petition also lists the approximate
number of unit employees as 25.
443
Analysis and Conclusions
A. Successorship Issue
From the undisputed evidence offered, I find that New
Center was a successor-to Operation'HOPE and, in fact,
accepted its status as a successor employer by recogniz-
ing and bargaining with the Union. Moreover, I have
very little difficulty finding that-Respondent was the suc-
cessor of New Center. Respondent's counsel disputes this
by arguing that Respondent operated with some different
furniture and equipment and had some specialized pro-
grams (rape prevention, handicap programs,' workshops,
and volunteer programs) that New Center did not have.
I find that the furniture and equipment argument is of
very little significance when weighed against the evi-
dence that both employers were performing the same
services to the same clients in the same area using the
same business location. Respondent's other argument also
is accorded little weight because the evidence indicates
that these services. were in existence at New Center
under the consultation and education program. Further-
more, Respondent's counsel made no attempt to prove
that other than unit employees were performing these
services. It is true, however, that one or two services
were performed by either volunteers or contract employ-
ees, but. they would not be included in the bargaining
unit in any event. _
The evidence supports a finding that Respondent per-
formed the same'services for the same clients in the same
catchment area as that of its predecessor, using all the
employees and supervisors of the predecessor. Further-
more, it performed these services 'at, the same business
address and without any hiatus. Therefore, I find that
Renaissance West is a successor employer to New
Center. Virginia Sportswear, 226 NLRB 1296 (1976); Mag-
nolia Manor Nursing Home, 260 NLRB 377 (1982).
B. Unit Issue
The status of the unit in this case raises serious ques-
tions that were never resolved by the General Counsel at
the hearing. To begin with, the agreement between New
Center and the Union executed on September 11, 1982,
taken literally, because there was no explanation, indi-
cates that New Center would treat the Operation HOPE
employees as a separate unit, apart from any New Center
unit employees. This strongly suggest that there were
New' Center unit employees who were not in the bar-
gaining unit. If that were not the case, I can see no
reason for the language in that letter of recognition. This
situation raises the question as to whether a bargaining
order should issue , when some of Respondent's employ-
ees that it retained may be in the bargaining unit and
some may not, without giving Respondent an opportuni-
ty 'to litigate each employee 's status.
I find that I cannot, under the circumstances, order the
Respondent to bargain when the unit status of its em-
ployees is unresolved and Respondent denies the General
Counsel 's allegation that ' the unit is appropriate.
Another unit question was raised by certain sketchy
evidence offered by the parties concerning job classifica-
tion and duties "of employees working for the employers
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in question From what little evidence was presented it
seems clear that no one knows which employees should
be included in the unit and which should be excluded be
cause no attempt was made to match up job duties of
employees at Respondent with job classifications in the
unit description notwithstanding the fact that some job
classications may have changed In my opinion this
leaves the unit in a state of disarray and a bargaining
order would not be appropriate under these circum
stances
Finally it appears from the unit description as set
forth in the certification and contract and by admissions
in the General Counsels brief that the unit contains pro
fessional and nonprofessional employees Furthermore
the General Counsels brief impliedly admits that the
professional employees were never accorded the oppor
tumty of a separate vote in the state conducted election
The General Counsel further argues in brief that the unit
is wall to wall which without further evidence and ex
planation must include psychiatrists and therapists The
General Counsel argues that even though these are the
facts the Board will extend comity to the Michigan cer
tification and accord it the same weight and effect as
though it were a Board certification International Tele
phone Corp 159 NLRB 1757 (1966) I disagree The
International Telephone case is nearly 20 years old and it
involves a complex factual situation which is peculiar to
that case alone The Board in that case did not disturb
the certification of a mixed unit primarily because the
employer and the union had a long history of uninter
rupted collective bargaining with no objection raised by
either party for almost 20 years The Board stated that
Section 9(b)(1) of the Act does not preclude an employer
and a union from voluntarily establishing and maintain
ing a mixed unit for purposes of collective bargaining
In this case there has never been a Board certification
and there is no history of bargaining between the parties
Under these circumstances should the Board honor the
state certification and place its imprimatur on this unit
where as here the Respondent objects to such action
and has never agreed to a mixed unit it would in effect
be initially establishing a mixed unit in violation of Sec
tion 9(b)(1) of the Act To the contrary I find that the
Board will not recognize the validity of state conducted
elections and certifications unless the provisions of Sec
tion 9(b)(1) have been followed in the case of mixed
units Malcom X Center for Mental Health Inc supra
Mental Health Center 222 NLRB 901 (1976)
Accordingly for all the reasons stated above I find
that the unit is not appropriate for the purposes of col
lective bargaining
C Refusal to Recognize and Bargain
I find that the Respondent admitted it refused to rec
ognize the Union as early as the first week of January
1983 and thereafter refused to bargain with the Union
over wages and personnel policies However I find that
no violation was committed by Respondent because the
unit in question is inappropriate and is fatally flawed as
to scope
Accordingly I find that Respondent has committed no
unfair labor practices as alleged in the complaint
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 The Union is a labor organization within the mean
mg of Section 2(5) of the Act
3 Respondent is a successor employer of New Center
4 The Union is not the certified bargaining representa
rive in a unit consisting of
All clerk typists secretaries billing clerks special
ists accountants intake clerks medical records It
branans building attendants therapists art recrea
tion and occupational therapists and community
mental health workers excluding confidential em
ployees and supervisors as defined by the Act
5 Respondent has not engaged in any violation of Sec
tion 8 (a)(1) and (5) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed'
ORDER
It is recommended that the complaint be dismissed in
its entirety
1 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the fmdmgs , 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