Riverside Manor Home for Adults

National Labor Relations Board - Board Decisions

Mar 22, 1971

189 N.L.R.B. 176 (N.L.R.B. 1971)

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forestam Realty Corporation d/b/a Riverside Manor
Home for Adults i Employer-Petitioner and Local
1115, Nursing Home, Hospital , Senior Citizens
Hotel Union2 and New York Hotel and Motel
Trades Council , AFL-CIO3 Case 2-RM-1583
March 22, 1971
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, hearings
were held before Hearing Officers Jo Ann Ferdinand
and Thomas Trunkes, Hearing Officers of the
National Labor Relations Board. Following the
hearings and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, the case was transferred to the Board for
decision. Briefs have been filed by the Employer-
Petitioner, hereinafter called the Employer, Local
1115, Nursing Home, Hospital, Senior Citizens Hotel
Union, hereinafter called Local 1115, and New York
Hotel and Motel Trades Council, AFL-CIO, here-
inafter called Trades Council.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its power in connection with this case to
a three-member panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearings and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is organized under the business
corporate laws of the State of New York and licensed
and regulated by the New York State Department of
Social Welfare to operate, as a partnership, a 256-bed
"private proprietary home for adults." Its purpose, as
set forth by its licensing authority, is to provide
sheltered protection and supervised environment to
the elderly and infirm who, because of stabilized
chronic disorders or disabilities, are incapable of
living independently in a boarding home, yet do not
require the services provided in a nursing home. In
pursuit of this purpose, the Employer offers to
residents who ages average between 70 and 80 years a
myraid of personal-care services designed to help
them with their daily needs; such services, for
example, as assistance in eating, bathing, dressing,
and walking. It also provides, through the intermedi-
ary of an occupational therapist, a varied program of
' The Employer-Petitioner's name appears as amended at the hearing
2 The name of this party appears as amended at the hearing.
3 The name of this party appears as amended at the hearing
social activities. It does not provide any medical or
nursing care services beyond administering dosages of
medication prescribed by its residents' personal
physicians.
The Employer does not admit or cater to transient
guests. Its residents are admitted by the Employer
upon approval of their applications for admission,
and at least 90 percent of them remain with the
Employer for periods exceeding a month. The
remaining 10 percent stay either "for the duration," or
else are transferred to a nursing home or other
appropriate health-care facility because they are too
ill to remain at the Employer. In addition, the vast
majority of its residents apparently are able to afford
the Employer's rates, which are charged on either a
weekly or monthly basis, and the costs for such
residents as may be indigent are borne by a state
agency.
Although the Employer has been engaged in its
present operation since approximately the beginning
of March or April 1969, its direct and indirect
purchases of goods and supplies from outside the
State for the remainder of the year have exceeded
$20,000. In addition, the record shows that its gross
revenues during this same period have exceeded
$330,000, that at the current rate, if projected over a
1-year period, it would exceed a minimum gross
volume of business of $720,000, and that when the
Employer is operating at full capacity, its projected
gross revenues will exceed $1,000,000 annually.
While not disputing that the Employer's involve-
ment in interstate commerce sufficiently establishes
the Board's statutory and discretionary jurisdiction,
Trades Council argues, in substance and effect, that
although the Employer designates itself as a private
proprietary home for adults, it is nothing more than a
residential hotel, albeit for senior citizens, and,
therefore, is the type of operation over which the
Board has declined, and should continue to decline, to
assert jurisdiction. Moreover, Trades Council contin-
ues, the record does not justify the creation of a new
jurisdictional standard for private proprietary homes
for adults. We find no merit in these contentions.
The Employer's purpose, unlike that of a hotel, is to
"protect and promote the health, safety, comfort, and
general welfare" 4 of elderly persons who, because of
stabilized chronic disorders or disabilities, are incapa-
ble of living independently in either a boarding home
or a hotel, by providing them with sheltered protec-
tion and a supervised environment. It accomplishes
this purpose pursuant to state regulations which do
not pertain to hotels by providing, for example,
housekeeping employees who, in addition to cleaning
4 Rules and Regulations Private Proprietary Homes for Adults, New York
State Department of Social Welfare, November I, 1965
189 NLRB No. 27
RIVERSIDE MANOR HOME FOR ADULTS
and changing linens, shave, bathe, and dress its
residents; dietary employees who not only setup and
clean the dining room, but also serve, feed, or assist
residents in eating; an occupational therapist charged
with providing social activities geared to 70 to 80-year
old people; a night aide whose sole function is to
patrol the halls at night and make certain that the
residents are safe and their needs attended to; and an
administrator, not a hotel manager, to oversee the
entire operation. Moreover, its menu is severely
restricted, its food is prepared consonant with the
general and specific diets required by its residents, the
doors of its residents' rooms have no locks so that
unhindered assistance may be given if needed, and,
through the installation of handrails in bathrooms,
hallramps, and similar changes, it has been physically
altered from the motel, which it was formerly, to a
premises geared to the protection and physical needs
of the elderly.
These factors clearly are not incidental to hotel
operations generally, or residential hotel operations
specifically, and, in our view, establish that the
Employer is not a residential hotel. They show,
instead, that the Employer is a related facility within
the meaning of the term "nursing home and related
facility,"5 and that its operation falls within the
pruview of the type of facility over which we have
heretofore asserted jurisdiction .6
The Employer's direct and indirect purchases of
goods and supplies affect commerce under the Act
and bring its operation within the Board's statutory
jurisdiction. In addition, inasmuch as its gross volume
of business, projected on an annual basis, meets the
Board's discretionary jurisdictional dollar-volume
standard, we find that it will effectuate the policies of
the Act to assert jurisdiction herein over the Employ-
er's private proprietary home for adults.
2. The labor organizations involved claim to
represent certain of the employees of the Employer.
3. While the parties agree as to the appropriate-
ness of the unit described in the petition, Trades
Council contends that its collective-bargaining agree-
ment with the Employer's predecessor constitutes a
bar to an election. Although the Employer did not
specifically assume that agreement on purchasing the
premises, Trades Council argues, in substance, that
the Employer nevertheless has adopted, and therefore
is bound by, that agreement which, it avers, is
currently valid and operative, and, therefore, no
question concerning representation exists. We do not
agree.
The agreement upon which Trades Council predi-
5 "Nursing homes and related facilities offer a wide range of services
which include not only nursing and medical services, but also custosdial
and personal care functions . " p 37, Nursing Homes and Related
Facilities. Economic Effects Studies United States Department of Labor,
177
cates its claim is a 4-year agreement effective as of
June 1, 1966, between Trades Council and the Hotel
Association of New York City, Inc. That agreement
pertains to hotel operations and covers employees
indigenous to such operations. The Employer's
predecessor, a motel operator who also employed
similar types of employees, became a party thereto on
June 24, 1967. The Employer purchased the motel
premises on March 28, 1968, and after securing the
necessary licensing and making some necessary
alterations in the premises, began its home for adults'
operations in approximately March 1969. During this
11 or 12-month interval, it continued to operate as a
motel, utilizing its predecessor's manager and other
employees in order to deter the possible vandalism a
closed premises might incur as well as to defray
expenses during the conversion period. Also during
this period, the manager, on whom the Employer
relied completely and who apparently ran the busi-
ness with a free hand, complied with its predecessor's
agreement by deducting and remitting dues to Trades
Council and by making the contractually called for
contributions to Trades Council's insurance, medical,
and pension funds.
Meanwhile in January 1969, Local 1115 requested,
and the Employer refused, recognition. In the
following month, following a strike in which most, if
not all, of the employees participated, Local 1115 and
the Employer executed a recognition agreement.
Although Local 1115 attempted to begin negotiations
up until July 1, 1969, when the Employer filed the
petition, the Employer delayed negotiations.
In February or March 1969, the Employer com-
menced its home for adults operation with newly
hired employees, for by this time it appears that all of
its predecessor's employees had left. On July 1, 1969,
the Employer filed the petition herein. As of the time
of the hearing, the Employer had a complement of 37
employees, 29 of whom are in the stipulated unit, as
contrasted to 6 former employees who were covered
by the agreement prior to the Employer's purchase of
the premises. There is no evidence that any of its
employees are members of Trades Council. In
addition, virtually none of its employees is primarily
engaged in duties normally associated with the hotel
business, nor are their functional operations covered
by the prior agreement.
Thus, it is clear not only that there has been a
substantial change in the Employer's operation, the
character and complement of the bargaining unit, and
the categories of the employees' jobs and duties, 7 but
1969, citing in turn , Characteristics of Nursing Homes and Related Facilities
PHS Publication 930 F-5, 1963
6 Drexel Home, Inc 182 NLRB No 151
7 See Montgomery Ward & Co, Incorporated, 137 NLRB 346, 351
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also that Local 1115 had a "substantial claim" within
the purview of the Deluxe rule8 and, as contended by
Local 1115, was deterred earlier from filing a petition
to establish its representative status in reliance upon
the Employer's conduct.9 Moreover, since the con-
tract raised as a bar does not cover the categories of
employees either previously represented by Trades
Council or included in the petition, that contract
cannot stand as a bar.10 Accordingly, we find that a
question affecting commerce exists concerning the
representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.11
8 Deluxe Metal Furniture Company, 121 NLRB 995, 998-999
9 Cf Greenpoint Sleep Products, 128 NLRB 548, 549, Deluxe Metal
Furniture Company, supra
10 Yellow Cab, Inc, 131 NLRB 239.
11 We find without merit Trades Council's further contention that the
Employer's execution of a State Workmen's Compensation Disability form
which contained the statement that it covered "All employees covered by
the collective bargaining agreement between the . . Trades Council .
and the above named employer" itself constitutes a valid written collective-
bargaining agreement between it and the Employer Cf Appalachian Shale
Products Co, 121 NLRB 1160, 1163-64 Moreover, the mere execution of
that form is insufficient to effectively establish the existance in the
argument raised by Trades Council during the hearings to the effect that a
bar exists because the contract under which the Employer allegedly is
bound as a successor was opened under a wage reopener provision in
August 1968, a contract "consummated" on January 12, 1969, and expiring
in 1973, and, therefore, constitutes a new agreement which bars the
petition . See Southwestern Portland Cement Company 126 NLRB 931
4. The parties have stipulated , and we find, that
the following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the
Act:
All employees employed by Forestam Realty
Corporation d/b/a Riverdale Manor Home for
Adults, located at 6355 Broadway , Bronx, New
York, excluding professional employees , guards,
watchmen and supervisors as defined in the Act.
[Direction of Election omitted from publication.]12
Moreover, Trades Council adduced no evidence to support this position
which , in any event, would amount to a premature extension of its contract
with the Hotel Association and still would not constitute a bar Deluxe
Metal Furniture Company, supra 1001.
12 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236 , NLRB v. Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 2 within 7 days of
the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed