Silver Court Nursing Center

National Labor Relations Board - Board Decisions

Apr 29, 1994

313 N.L.R.B. 1141 (N.L.R.B. 1994)

1141
313 NLRB No. 202
SILVER COURT NURSING CENTER
1 The Respondent moved to strike portions of the Charging Party’s
brief. The motion is denied.
2 The Charging Party has moved to reopen the record to take addi-
tional evidence based on affidavits indicating significant interchange
of employees and common day-to-day supervision between the Nurs-
ing Center and the Pavilion, which, it contends, would require a dif-
ferent result in this case. The motion is denied. Sec. 102.48(d)1) of
the Board’s Rules, requires ‘‘extraordinary circumstances,’’ ‘‘newly
discovered evidence’’ that was not previously available and would
‘‘require a different result.’’ The Charging Party has failed to make
this showing.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent contends that the judge was biased and lacked ju-
dicial temperament, which accounted for a number of findings which
the judge made adversely to the Respondent, including his failure to
grant the Respondent’s motion for a directed verdict. We find no
merit in the Respondent’s contention. The Respondent’s further re-
quest to strike the remainder of the record, and to bar the judge from
any further participation in this case, is denied.
4 The General Counsel requests the Board to correct the judge’s
recommended Order stating that ‘‘The complaint is dismissed.’’ The
judge correctly found that the sole issue before him was whether the
employees at the Alzheimer Pavilion should be accreted to the bar-
gaining unit in this 8(a)(5) and (1) proceeding. The other unfair
labor practices had been settled by the parties through formal and
informal settlements. After the settlements, only a few paragraphs of
the complaint relating to Case 4–CA–20470 remained. We shall
modify the recommended Order to dismiss only those complaint
paragraphs presented to the judge for decision.
1 The other unfair labor practices alleged in the three consolidated
complaints were settled by a formal settlement approved by the Na-
tional Labor Relations Board [DS-2237 (January 21, 1993)] and an
informal settlement agreed to by the Regional Director with Health
Care Services Group, Inc. (Health Care) and the Union.
2 The relevant docket entries are as follows: The Union filed its
unfair labor practice charges in Cases 4–CA–19613, 4–CA–19724,
4–CA–19752, 4–CA–19809, 4–CA–19838, and 4–CA–20372 on
March 4 (amended on April 1), April 19, May 1 and 23, June 7,
1991 (which was amended on July 17, 1991), and January 14, 1992,
respectively. The Union filed its unfair labor practice charges in
Cases 4–CA–20470, 4–CA–20486, 4–CA–20519, 4–CA–20541, and
4–CA–20603 on February 18 and 24, March 4 and 10, and April 1,
1992, respectively. Complaints issued on August 30, 1991, February
3, and May 29, 1992 (amended on June 3), and all the Cases were
consolidated. After the settlements, only a few paragraphs of the
complaint relating to Case 4–CA–20470 remain. The hearing was
held in Philadelphia, Pennsylvania, on September 14 to 16, 1992.
Silver Court Nursing Center, Inc. and Health Care
Services Group, Inc. and District 1199C, Na-
tional Union of Hospital and Health Care Em-
ployees, AFSCME, AFL–CIO
Silver Court Nursing Center, Inc., Silver Care
Management, Inc., and FDS, Inc. and District
1199C, National Union of Hospital and Health
Care Employees, AFSCME, AFL–CIO. Cases
4–CA––19613, 4–CA–19724, 4–CA–19752, 4–
CA–19809, and 4–CA–19838 Cases 4–CA–20372,
4–CA–20470, 4–CA–20486, 4–CA–20519, 4–CA–
2054, and 4–CA–20603
April 28, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On May 7, 1993, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
General Counsel filed an exception. The Charging
Party filed exceptions with a supporting brief,1 a reply
brief, and an answering brief. The Respondent filed an
answering brief, cross-exceptions with a supporting
brief, and a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record2 in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,3 and
conclusions and to adopt the recommended Order, as
modified.4
ORDER
Paragraph 21 of the consolidated complaint issued
on May 29, 1992 in Cases 4–CA–20470, 4–CA–2048,
4–CA–20519, 4–CA–2054, and 4–CA–20603, and
paragraph 33 of the complaint to the extent it refers to
paragraph 21, are dismissed.
Scott C. Thompson, Esq. and Lea F. Alvo, Esq., for the Gen-
eral Counsel.
Dale Silver, Esq., of Cherry Hill, New Jersey, for the Re-
spondents.
Gail Lopez-Henriquez, Esq. (Freedman & Lorry), of Phila-
delphia, Pennsylvania, for the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. The
sole issue remaining in this proceeding is whether the em-
ployees at the Alzheimer Pavilion of Cherry Hills, which was
built on and added to the premises of Silver Court Nursing
Center, Inc. (Nursing Center), should be accreted to the bar-
gaining unit at the Nursing Center represented by the Charg-
ing Party District 1199C, National Union of Hospital and
Health Care Employees, AFSCME, AFL–CIO (Union).1 Re-
spondents deny that they had any obligation to bargain with
the Union about the Pavilion, because, among other reasons,
the same people did not engage in day-to-day supervision of
all the facilities and there was only minimal employee inter-
change.2 To the contrary, the complaint alleges that Re-
spondents violated Section 8(a)(5) and (1) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq.
The Nursing Center, a New Jersey corporation located in
Cherry Hill, New Jersey, is a nursing care facility for 135
long-term elderly patients. It occupies one building, attached
to which is a Residential Center, which offers care for up to
60 senior citizens who are able to do more for themselves
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All the yard work is done by the same subcontractor.
than the clients who reside in the Nursing Center. The Pavil-
ion, owned by FDS, Inc., another corporation, is the newest
of the facilities, having opened in February 1992. It cares for
up to 40 patients who have Alzheimer’s disease. Silver Care
Management, Inc. (SCM), a corporation, is the management
company that supervises, manages, and operates all the fa-
cilities. It receives the payments from all the residents of all
the facilities. Under two management contracts, SCM pur-
chases assets, pays the bills, puts money into separate payroll
accounts for the various entities, pays the payroll and taxes,
and allocates all income and expenses to the Nursing Center
and FDS, reserving to itself the management fees earned for
its services. Dale Silver is SCM’s sole shareholder, officer
(president), and director. However, her husband, Marc, is its
chief executive officer and runs the entire operation, with his
wife’s advice and consent. Marc works at SCM’s office,
which is about equidistant from the Pavilion and the Nursing
Center and is located off a 100-foot long convenience cor-
ridor that connects both buildings.
Jurisdiction is conceded. Respondents admit that Health
Care, a Pennsylvania corporation with offices in Huntingdon
Valley, Pennsylvania, is engaged in providing housekeeping
and laundry services on a contract basis to nursing homes,
including the Nursing Center. Respondents also admit that,
as an alternative to litigating whether they are involved in
commerce, that during the year ending January 1, 1992, they
collectively derived gross revenues in excess of $1 million
and purchased and received goods valued in excess of $5000
directly from points outside New Jersey. I conclude, as Re-
spondents admit, that they are employers within the meaning
of Section 2(2), (6), and (7) of the Act and health care insti-
tutions within the meaning of Section 2(14) of the Act.
Respondents’ admission does not set forth the accurate re-
lationship of the Respondents. Rather, the complaint alleges,
and I conclude, that the Nursing Center, SCM, and FDS con-
stitute a single employer within the meaning of the Act. As
a single employer, they also meet the Board’s standards for
asserting jurisdiction. In NLRB v. Browning Ferris Industries,
691 F.2d 1117, 1122 (3d Cir. 1988), the court stated:
A ‘‘single employer’’ relationship exists where two
nominally separate entities are actually part of a single
integrated enterprise so that, for all purposes, there is
in fact only a ‘‘single employer.’’ The question in the
‘‘single employer’’ situation, then, is whether the two
nominally independent enterprises, in reality, constitute
only one integrated enterprise. . . .
In answering questions of this type, the Board con-
siders the four factors approved by the Radio Union [v.
Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965)]
court, at 256: (1) functional integration of operations;
(2) centralized control of labor relations; (3) common
management, and (4) common ownership. Thus, the
‘‘single employer’’ standard is relevant to the deter-
mination that ‘‘separate corporations are not what they
appear to be, that in truth they are but divisions or de-
partments of a single enterprise.’’ . . . ‘‘Single em-
ployer’’ status ultimately depends on all the cir-
cumstances of the case and is characterized as an ab-
sence of an ‘‘arm’s length relationship found among
unintegrated companies.’’ [Citations omitted; emphasis
in original.]
None of these factors are controlling, nor are all needed
to be present in order to support a single employer finding.
The first three criteria are more important to a finding of sin-
gle employer status than the last; and the Board puts particu-
lar emphasis on the factor of centralized labor relations as
that tends to show ‘‘operational integration.’’ Hydrolines,
Inc., 305 NLRB 416, 417 (1991), citing NLRB v. Al Bryant,
Inc., 711 F.2d 543, 551 (3d Cir. 1983).
Respondents constitute a family operation. The Nursing
Center is owned by the Silver Rudolph trust, the trustees of
which are Marc and his sister and mother. The beneficiaries
are Marc, his children from a previous marriage, and his sis-
ter and her son. FDS is wholly owned by Dale, Marc’s sec-
ond wife. Although she is the current president of FDS, Marc
was its president in December 1991 when FDS filed a certifi-
cate registering the Pavilion as a fictitious or alternate name
which FDS intended to use in the conduct of its business as
a ‘‘[n]ursing home and related business and activity.’’ In
documents filed with the New Jersey Department of State,
Marc is named as the registered agent for both FDS and the
Nursing Center.
Mark is the president and administrator of the Nursing
Center; Dale is the administrator of the Pavilion. Marc’s tes-
timony, and Marc was the only person to testify on behalf
of Respondents, thus showing his complete knowledge of all
areas of Respondents’ operations, was that estate planning
caused him to separate the Pavilion from the Nursing Center
because, otherwise, if he were to die, a portion of the Pavil-
ion would revert to his first family. With the ownership of
the Pavilion in FDS, his second family (Dale) would inherit
his estate. Marc signed both of SCM’s management contracts
on behalf of SCM. His sister signed for the Nursing Center
and Dale for FDS; but Dale was the attorney who prepared
both contracts. They are almost identical, obviously not
arm’s length transactions but ones between husband and wife
and brother and sister. From Marc’s knowledge of all the en-
tities, and his admission that he makes many of the key deci-
sions regarding their operation, as well as his background as
a developer of nursing homes during the 1980’s, I find that
he (with Dale’s participation and approval of Dale) controls
the Nursing Center, FDS, and SCM. The Board has found
single-employer status despite separate ownership based on a
single individual’s control over management, labor relations,
and finances of both businesses. Hydrolines, Inc., supra at
419; Mr. Clean of Nevada, Inc., 288 NLRB 895 (1988); Il
Progresso Italo Americano Publishing Co., 299 NLRB 270
(1990). While there is no common ownership between the
Nursing Center and FDS or SCM, all the entities are owned
by related family members and are under Marc’s control. I
conclude that there is ample evidence of common ownership
and financial control, as required by the Board’s test.
However, as noted above, this conclusion is the least im-
portant indication of a single employer status. All the other
indicia are present. The Nursing Center, FDS, and SCM are
highly interrelated. The Nursing Center (encompassing the
Pavilion, FDS and SCM) holds itself out to the public as one
enterprise. Thornton Heating Service, 294 NLRB 304, 309
(1989). The buildings are located on the same plot of land,3
which is owned by the Nursing Center; and they are all con-
nected. The three facilities share common parking lots. On
1143SILVER COURT NURSING CENTER
4 In doing so, I have specifically considered the following facts,
which, I find, are overwhelmed by other facts showing interrelation
of operations: Access to the facilities is different. The entrances to
the Pavilion are locked so that residents cannot leave. Residents
wear special bracelets that automatically lock certain doors. The Pa-
vilion is self-contained, that is, it does not rely on much of the
equipment of the Nursing Center, but has its own emergency genera-
tor, fire alarm system, sprinkler system, boiler system, electrical
room, and mechanical room. The boiler for the Pavilion is in the me-
chanical room which is located just outside the Pavilion under the
convenience corridor. The Pavilion also has its own patient care
rooms, activity rooms, dining rooms, beauty shops, family rooms,
examination rooms, nursing stations, nurses’ lounge, staff room, tub
rooms, utility rooms, nursing supply rooms, medication rooms, and
special dining rooms.
5 Loeb was also either the director or assistant director of nursing
at the Nursing Center.
the property, there is only one sign, with the name of the
Nursing Center on top and much more prominent and in
larger print than the printing underneath it:
SILVER CARE NURSING CENTER
NURSING CARE
RESIDENTIAL CENTER
ALZHEIMER PAVILION
Marc advertises Respondents as a skilled nursing home
and a residential care facility. At least as of the time of the
hearing, Marc did not specifically mention their specialized
care for Alzheimer’s patients. Rather, in the 7 years that
Marc has been involved, it was not uncommon for the Nurs-
ing Center to represent that it gave care to Alzheimer’s pa-
tients, because half of its patients were Alzheimer’s patients.
Although Respondents do not share common addresses, all
administrative functions are combined in SCM’s offices, and
all mail is delivered there. There is one telephone number for
the Nursing Center, and for no one else. There is one tele-
phone listing. A person calling about the Pavilion’s business
must telephone the Nursing Center, and the telephone call is
answered by a receptionist employed by SCM. An SCM em-
ployee maintains all medical records for all the facilities in
SCM’s office and assures that the quality of service of all
of them complies with the legal requirements for care of pa-
tients in a nursing home. Another employee handles all ad-
missions. As noted above, SCM handles all the financial
transaction for all the entities.
The New Jersey Department of Health, Division of Health
Facilities Evaluation, issued only one license—to the Nursing
Center, for the entire facility, covering all the beds of the
Nursing and Residential Centers and the Pavilion. Without
the Nursing Center’s license, FDS would not be able to oper-
ate the Pavilion, because the Pavilion does not have its own
license. FDS would also be unable to operate the Pavilion
because it was constructed without a kitchen. Marc con-
templated that it would be cheaper to run the facility using
the kitchen (and the kitchen staff) of the Nursing Center. The
Pavilion also has no laundry, and SCM entered into a laun-
dry contract with Health Care for both the Nursing Center
and the Pavilion. I conclude that there is ample evidence of
the interrelation of operations.4
Furthermore, because SCM manages the Nursing Center
and the Pavilion, as shown above, the Nursing Center, FDS,
and SCM share common management. Under the manage-
ment contracts, SCM had to furnish both facilities with ad-
ministrators and managers. Marc and Dale, for SCM, named
Helene Loeb, a ‘‘high executive’’ of SCM who worked as
the assistant administrator of the Nursing Center until FDS
opened,5 as the facility director of FDS. Similarly, they
named Linda Schaeffer, another ‘‘high executive’’ of SCM,
the assistant administrator of the Nursing Center. She assists
Marc in SCM’s operations and signs the payroll checks for
all employees, including those of the Pavilion. John
Fratentoro, SCM’s financial controller, handles the financial
matters for all three entities. Nancy Dawson, SCM’s office
manager, handles the business office functions for both the
Nursing Center and the Pavilion.
Finally, I conclude that there is centralized control of labor
relations. Marc set the hiring and labor policies for both the
Nursing Center and FDS. Although he did not personally
hire or fire employees, he testified that he determines (with
Loeb) what qualifications FDS was going to require of appli-
cants for employment at the Pavilion and, by himself, what
qualifications the Nursing Center required of its employees.
Marc is solely responsible for negotiating with the Union a
collective-bargaining agreement for the Nursing Center that
deals not only with wages and benefits but also disciplinary
policies. Marc, with Loeb, determined the disciplinary poli-
cies that FDS will use and, at the time of the hearing, was
still preparing those guidelines. In addition, when the Union
made its demand for recognition as the representative of the
employees of the Pavilion, as an accretion, it was Marc, and
no one else, who bargained with the Union about whether
the current agreement should apply to the Pavilion’s employ-
ees and ultimately refused to recognize the Union.
I conclude that the Nursing Center, FDS, and SCM are af-
filiated enterprises and constitute a single integrated enter-
prise and single employer within the meaning of the Act.
Turning to the accretion issue, the Nursing Center is the
successor to Heritage House, Inc., which had recognized the
Union as the representative of its employees. The Nursing
Center has a current collective-bargaining agreement (the
agreement expires on December 5, 1993) with the Union in
which it recognized the Union as the exclusive representative
of the following employees:
All LPN’s, LGPN’s, rehabilitation therapy nurses, nurs-
ing aides, nursing assistants, senior nursing aides, ward
clerks, activity aides, nursing aide/clothing attendants,
rehabilitation therapy aides, housekeepers, laundry
aides, floor care/porters, porters, general kitchen work-
ers, dietary aides, senior dietary aides, cook trainees,
cooks, chefs, dish room workers, office clerical, mainte-
nance persons, drivers, unit charge nurses, medical
records transcribers, yardworker/groundskeeper, bath
team aides, but excluding guards and supervisors as de-
fined in the Act.
The Board has stated that it will be restrictive in finding
accretion because it forecloses the employees’ right to select
their bargaining representative. Towne Ford Sales, 270
NLRB 311 (1984), enfd. 759 F.2d 1477 (9th Cir. 1985),
cited with approval in GHR Energy Corp., 294 NLRB 1011,
1016 (1989). In Gould, Inc., 263 NLRB 442, 445 (1982), the
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Marc met with a union representative in April, May, and June,
seeking to renegotiate the collective-bargaining agreement. He par-
ticularly objected to the Union’s desire to permit transfers of nurses
aides from the Nursing Center to the Pavilion. This will be dealt
with below.
7 The collective-bargaining agreement provided that Silver Court
retained the right to subcontract unit work, provided that the contract
with the subcontractor stipulated that it will retain all incumbent em-
ployees, abide by the agreement, and recognize the Union.
8 Contrary to the General Counsel’s contentions, I consider unim-
portant the similarity or identity of various documents given to em-
ployees of both facilities. The documents do not constitute terms and
conditions of employment.
Board provided the following guidance for determining when
an accretion occurs:
An accretion, as the term has been employed by the
Board and the courts, is merely the addition of new em-
ployees to an already existing group or unit of employ-
ees. In determining whether a new facility or operation
is an accretion, the Board has given weight to a variety
of factors including integration of operations, centraliza-
tion of managerial and administrative control, geo-
graphic proximity, similarity of working conditions,
skills and functions, common control of labor relations,
collective-bargaining history, and interchange of em-
ployees. In the normal situation some elements militate
toward and some against accretion, so that a balancing
of them is necessary. Where the new employees are
found to have common interests with members of an
existing bargaining unit and would have been included
in the certified unit or covered by the current collective-
bargaining agreement an accretion is found to exist.
However, where a group of new employees numerically
overshadows the existing certified unit and may con-
stitute a separate or independent appropriate unit, the
Board is ‘‘cautious’’ to find that the new employees are
part of the existing unit since such a finding would de-
prive the larger group’s employees of their statutory
right to select their own bargaining representative. In
such cases the Board must balance the right of employ-
ees to select a bargaining agent against the concomitant
statutory objective of maintaining established stable
labor relations.
Some of these factors are virtually identical to those con-
sidered above, regarding the determination of single em-
ployer status. My findings are equally applicable to the ac-
cretion issue. For example, the centralization of managerial
and administrative control is manifestly evident. Both the
Nursing Center and the Pavilion gave that responsibility to
SCM, which exercises full control. The geographic proximity
of the Pavilion to the other buildings is equally clear. The
two buildings are no more than 100 feet apart and are con-
nected by an enclosed corridor. The Nursing Center’s build-
ing, which houses most of the long-term nursing patients is
attached to the Residential Center, which offers care for up
to 60 senior citizens who are able to do more for themselves
than the clients found in the Nursing Center. The operations
are also integrated, as evidenced by the sign in the front of
the facility. One license to operate covers them all, and they
share, because of the identical management contracts, the
same office, receptionist, telephone, and office personnel.
The Pavilion cannot operate without the kitchen of the Nurs-
ing Center and its staff. Otherwise, there would be no food
for its clients, because only the Nursing Center has a kitchen
and a staff to prepare and deliver food and to wash dishes.
The Pavilion also has no laundry. The Nursing Center’s
housekeepers pick up laundry from the Pavilion and return
clean laundry. Similarly, when the Nursing Center has run
out of clean linens, which sometimes occurs two or three
times a week, employees of the Pavilion go to the Nursing
Center to pick up linens. Otherwise, the Pavilion operates
separately from the Centers. In addition, the size of the exist-
ing unit (about 100 employees at the Nursing Center, exclud-
ing 15 housekeepers employed by Health Care) far out-
numbers the employees to be accreted (about 45 employees
in the Pavilion).
Marc exercises complete control over labor relations of
both facilities, at least in the broad sense. It was he that bar-
gained with the Union for the present collective-bargaining
agreement and dealt with the Union in attempting to resolve
the instant dispute.6 He establishes the policies for hiring, al-
though he does not personally hire employees. The collec-
tive-bargaining history also favors a finding of accretion. The
Residential Center occupies the oldest building on the land.
When the building that the Nursing Center presently occu-
pies was completed in 1987, the old building was designated
for the Residential Center. Marc treated the Nursing Center
and Residential Center as one entity and recognized the
Union for the employees who worked there. On the other
hand, there may have been valid reason to treat them as one
entity. Among other considerations, residents of both the
Residential Center and Nursing Center have parties together,
employees use the same entrances, and families of residents
of either facility can enter through the Nursing Center or
Residential Center. In addition, the collective-bargaining
agreement also applied to the housekeeping and laundry em-
ployees who are employed by Health Care, to whom the
Nursing Center subcontracted its housekeeping and laundry
services.7 The employees of Health Care, which by stipula-
tion was agreed to constitute, with the Nursing Center, a sin-
gle employer, are represented by the Union. The employees
at the Pavilion are the only employees on the land who are
not covered by the Union’s collective-bargaining agreement.
In addition, when faced with the Union’s demand to consider
the Pavilion as an accretion, Marc initially agreed to do so,
provided that the Union agreed to certain changes in the
agreement, particularly the provisions that pertained to the
right of employees at the Nursing Center to be promoted or
transferred to positions at the Pavilion.
The working conditions of the employees are different be-
cause Respondents comply with the collective-bargaining
agreement at the Nursing and Residential Centers, but Marc
has set the employees’ terms and conditions of employment
unilaterally at the Pavilion. The wage structure at the Pavil-
ion is generally higher, and health plan coverage is different.
The Nursing Center’s employees receive more vacation and
one more holiday, but both groups receive the same number
of sick days, albeit that the policies of the two facilities for
obtaining sick pay differ. Employees of the Pavilion have the
option to waive their fringe benefits and receive higher
wages; the Nursing Center’s employees have no such op-
tion.8 However, the skills and functions of the employees are
1145SILVER COURT NURSING CENTER
9 There is no classification of ‘‘caring companion’’ at the Nursing
Center, but there are 7–10 ‘‘personal care companions’’ at the Resi-
dential Center.
10 When a nurses aide is hired and does not possess a certification,
the aide is given 4 months to obtain one.
11 Respondents’ attack on Washington’s credibility was unfounded.
I found her quite credible. She had nothing to gain by testifying as
she did.
12 Loeb promised Washington that the Pavilion would offer a
course for the state certification of nurses aides.
very similar. Marc testified in excruciating detail about duties
of the licensed practical nurses, housekeepers, activities per-
sonnel, and maintenance employees. In sum, what most of
the employees in the various classifications do at one facility,
they do at the other. The primary differences in employees’
functions are caused more by the population of residents than
by the skills needed by the employees themselves. Thus,
Alzheimer’s patients have little idea of reality and tend to
wander. According to Marc, they may easily be traumatized
by surprises, such as loud voices or touching them from the
rear. They may urinate at any time and at any place. Em-
ployees must know not to alarm them unduly and must be
able to treat them with dignity and with care. Because of
these general characteristics, all of the employees have some
sort of training in how to deal with these patients. Even the
housekeepers may have contact with a wandering patient and
may have to help in the care of that patient from time to
time.
The principal dispute centers on the duties, functions, and
qualifications of the Nursing Center’s nurses aides and the
Pavilion’s caring companions.9 All these employees take care
of the daily needs of the residents. They get the patients up
in the morning, help dress and feed and bathe them, and pro-
vide hands-on care. The caring companions, according to
Marc, help in the assessment and are part of the unit discipli-
nary care team. They provide activities and do a portion of
the housekeeping. Upon analysis, the caring companions do
work hardly different from the nurses aides. Indeed, the State
of New Jersey has taken the position, much to the distress
of Marc, who is fighting it, that caring companions must be
certified as nurses aides, as state law requires of nurses aides.
Indeed, the Nursing Center has provided a program from
time to time for its nurses aides to become certified;10 and
the Pavilion has provided one program, too.
In any event, the duties of the aides and companions hard-
ly differ, as is evident from the job descriptions of both cat-
egories. Even Marc became confused as to which was which.
The job description of the nurses aides, introduced in evi-
dence by the General Counsel, was partially illegible, so I
asked Marc certain questions to ensure that the record would
fairly reflect the contents of the description. When he arrived
at the item that read: ‘‘Reality orientation, restorative and re-
motivation of patient,’’ Marc commenced a detailed expla-
nation about this ‘‘specialized program’’ that he described:
THE WITNESS: It’s a special care unit. It does special
things with patients that are not done in any other nurs-
ing home in the country, and these are specially trained
people who do special programs; it’s a special kind of
program.
JUDGE SCHLESINGER: What is a reality orientation?
THE WITNESS: It—it is a program given to patients
to help, dementia patients, remember, and actually be-
havior modify these patients, give them behavior modi-
fication . . . It’s a special program which is imple-
mented in the Alzheimer Pavilion to help them with be-
havior modification.
The only problem with this testimony is that Marc was
testifying about the job description of the nurses aides, not
the caring companions. His confusion evidences that there
really was no difference. The functions of both classifica-
tions, even as to the alleged areas of expertise required in
dealing with Alzheimer’s patients, are almost identical. That
was corroborated by Regina Washington,11 who worked as
a caring companion beginning in April for almost 4 months.
The Pavilion gave her no special training, except for a 3-day
orientation in which she was taught how to make beds,
where the clean linens were, where to put the soiled linens,
where the patients were to eat, and how the tables were to
be set for meals. The Pavilion also gave her a pamphlet on
Alzheimer’s disease and later held in-service meetings about
the duties of caring companions. (Marc testified that caring
companions are taught how to greet and approach middle
stage Alzheimer patients because the wrong way would
cause angry, often hysterical reactions.)
After Washington’s employment at the Pavilion, she
worked as a temporary nurses aide at the Nursing Center.
She testified that her functions were very much the same.
When asked what differences she noted in the care of her pa-
tients, she answered that residents were not restrained at the
Pavilion. Otherwise:
Not very much difference. I took just as good care
of the people in the nursing home as I did in the Alz-
heimer’s unit, except a lot of the Alzheimer’s patients
have to be constantly watched, because they wander
and they get confused, and you’re most of the time
when you work in the nursing home you’re assigned
more patients than you would be if you were working
on the Alzheimer’s unit.
So it makes you [sic] easier for you to watch them
or keep up with them. . . . And in the nurses [sic] cen-
ter a lot of the patients could be more bedridden.
They’re not mobile. They can’t move around as much.
They’re more bedridden patients maybe.
The qualifications for the two positions are slightly dif-
ferent. The Pavilion wanted applicants to have a high school
education and preferred that they had at least 1 year of col-
lege. It also wanted them to have no prior experience with
nursing homes. That apparently was not as important as
Marc insisted, because the Pavilion hired Washington, who
had 15 years of nursing experience.12 On the other hand, the
Nursing Center only preferred that its nurses aides have com-
pleted high school and that they have certifications. These
differences are not important enough, however, to distinguish
their actual functions. Even persons without a high school
education have deductive reasoning, which Marc defined as
an understanding that ‘‘A plus B’’ equaled ‘‘C,’’ and sound-
ed more like common sense, that he insisted was the prime
qualification for the job of caring companion. Nurses aides,
even without a high school education, have the ability to
read and write (Marc wanted his caring companions to write
memoranda outlining certain behavior and the steps taken to
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prevent the conduct from reoccurring), and I discredit his tes-
timony that all his employees at the Nursing Center lacked
intellect and motivation and were unable to communicate at
anything more than a sixth to ninth grade level.
I also find substantial similarities between the LPNs em-
ployed at both facilities, despite Marc’s attempt to differen-
tiate between them. He testified that the LPNs have authority
over more job classifications at the Pavilion than at the Nurs-
ing Center. Apparently, a particular registered nurse assists in
the admission, transfer, and discharge of patients in the Pa-
vilion, but the LPNs do most of the admission work at the
Nursing Center. Furthermore, the specific registered nurse at
the Pavilion maintains the current nursing care plan, whereas
the LPNs do this at the Nursing Center. Nonetheless, in all
other respects, they engage in the same traditional care that
one would find in any facility, and they would be equally
at home in both the Pavilion and the Nursing Center. Marc
claimed that the LPNs at the Pavilion had the right to hire
and fire. If so, they would be excluded from the unit because
they are supervisors. However, I do not credit him, because
he testified that Loeb was the one who hired and fired em-
ployees; and I find it unlikely that he would have ceded that
power to the LPNs. Inasmuch as the job description that he
relied on included registered nurses, who are not represented
by the Union, I find it more likely that it is the registered
nurses who have supervisory functions.
The other employees have equally similar functions. The
laundry employees are identical. All laundry (clothing,
sheets, towels, etc.) is cleaned on the premises of the Nurs-
ing Center by employees of Health Care. The housekeeping
staff (including floor men who wash the floors and do the
heavy-duty cleaning) essentially clean the facilities. The
maintenance personnel do minor maintenance at both facili-
ties and have the same skills. It may be that, from time to
time, the employees at the Pavilion may be called on to help
the residents of the Pavilion; but I believe that their principal
functions were indicated by their job positions. To be helpful
or kind to those who suffer from Alzheimer’s disease re-
quires no specialized training by housekeepers of mainte-
nance persons. I am convinced, however, that Marc exagger-
ated when he testified that the housekeepers help in the feed-
ing of patients, and they participate in the daily living activi-
ties, whenever they are ‘‘not cleaning or whatever.’’ Clean-
ing was their principal job, not a secondary one.
In so finding, I consider that much of Marc’s testimony
was overstated and unworthy of belief. He tried so hard to
impress me with the alleged uniqueness of the Pavilion that
he was willing to say almost anything to protect it from be-
coming unionized. Marc constantly argued for his position
rather than testifying about the facts. He attempted to dis-
tance himself from the operation of the Pavilion, falsely, I
find, because he was the only witness for Respondents, evi-
dencing his knowledge of all of Respondents’ functions. He
insisted that he had no authority to bargain for the Pavilion
and that only Dale did, yet he testified that he consulted with
the union representative who made the accretion demand. In
many cases, his response was prompted by Dale, who acted
as Respondents’ attorney and obviously had much to gain,
because of her ownership and operating interests in all the
entities, as well as her relationship with her husband. Dale
would, as an attorney, object, the objection would invariably
be overruled, and Marc would then, as a witness, interject his
own objection, usually following the suggestion made by his
wife. Sometimes, the two would both interpose objections or
agree with one another. Once, Dale blatantly suggested an
answer to Marc.
Respondents contend that, even if I found many of the fac-
tors that the Board has considered relevant in determining
whether a new operation is an accretion, under Towne Ford,
supra, 270 NLRB 311, the Board will not find an accretion
unless there is a substantial degree of interchange of employ-
ees between the affiliated companies and there is the same
day-to-day supervision of the employees in the group sought
to be included. In Towne Ford, there were common offices,
common ownership, and common management at the policy-
making level. The two groups of employees utilized the same
job skills and utilized similar tools and equipment. Nonethe-
less, the lack of the same supervision and interchange of em-
ployees caused the Board to conclude that there was no ac-
cretion. Similarly, in Gitano Distribution Center, 308 NLRB
1172 (1992), the Board relied on Towne Ford’s identification
of employee interchange and common day-to-day supervision
as ‘‘especially important in a finding of accretion.’’ Towne
Ford, supra at 311–312. The Board held only that these were
‘‘important,’’ not that they constituted the sine qua non for
a finding of an accretion; but it is accurate that no party has
cited a recent decision in which the Board excused the lack
of these two factors and found an accretion. Even in Meyer’s
Cafe & Konditorei, 282 NLRB 1 (1986), a decision heavily
relied on by the General Counsel, the Board found that ac-
cretion was warranted because there was common super-
vision of all the employees and there was evidence of inter-
change of employees. To the extent that there was not more
interchange, that was caused by the Employer’s illegal rec-
ognition of another union that prevented the interchange.
Here, there is just slight evidence of common supervision
of the employees. The director of maintenance employed by
the Nursing Center helps at the Pavilion whenever he is
needed; but he supervises the work of the maintenance em-
ployees employed at both the Nursing Center and the Pavil-
ion. That involves only several employees. Otherwise, like
Gitano, where there was a fence that separated the new oper-
ation from the remainder that had been covered under the
union contract, the Pavilion was mainly sealed off from the
rest of the facility. The patients there were attended by their
own staff that was supervised by separate supervisors. Patri-
cia Domanski is the director of nursing at the Nursing Center
and supervises the nursing staff there. She schedules the
work of the nurses aides and interviews and them. Loeb is
the facility director of the Pavilion. She supervises the staff
and hires, fires, supervises, and disciplines employees at the
Pavilion. Loeb has nothing to do with the Nursing Center;
Domanski has nothing to do with the Pavilion.
Towne Ford instructs that, even when someone sets all the
labor policies for both entities, that is not enough to con-
stitute day-to-day supervision. The General Counsel uses the
same argument—Marc had ‘‘overall supervision of all em-
ployees and centralized control of all labor relations poli-
cies’’ that was rejected in Towne Ford. I similarly reject it.
As the Board noted in Towne Ford, supra at 312, what is
particularly significant is the perception of the employees in
the two entities, because ‘‘the day-to-day problems and con-
cerns among the employees at one location may not nec-
essarily be shared by employees who are separately super-
1147SILVER COURT NURSING CENTER
13 Hahnemann University, Decision, Order, and Clarification of
Bargaining Units in Cases 4–UC–228, 229, and 230, is an unre-
ported decision of the Regional Director for Region 4. It is relied
on by the General Counsel because there was no common super-
vision there, yet an accretion was found. However, there was com-
plete contact of the employees sought to be accreted with all the
other employees in the unit on a daily basis. Furthermore, the Re-
gional Director did not discuss the effect of Towne House and its
progeny. Finally, the decision was never reviewed by the Board.
14 Washington was the only minority caring companion. Only 25
percent of the nurses aides were white.
15 The General Counsel’s unopposed motion to correct the official
transcript in numerous respects is granted, and the transcript is
amended accordingly.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
vised at another location.’’ Renzetti’s Market, 238 NLRB
174, 175 (1978). So the fact that Schaeffer and Loeb report
to Marc at managers’ meetings is of no significance.
Finally, there has been no interchange of employees. No
one employed by the Pavilion has transferred to the Nursing
Center, and vice versa. However, some of the employees
have performed functions at the other facility. As found
above, the Pavilion does not have its own kitchen. The food
for the residents and patients is prepared on the premises of
the Nursing Center by general kitchen workers, dietary aides,
and cooks, all of whom are covered under the Union’s col-
lective-bargaining unit. The dietitian is the same for all the
facilities. All the dishes are washed by employees of the
Nursing Center covered by the same contract. Daily, for
breakfast, lunch, dinner, and three snacks, dietary aides em-
ployed by the Nursing Center wheel food on carts from the
Nursing Center’s kitchen through the convenience corridor to
the Pavilion and into its dining room. At the end of the meal
hour, the dietary aides would come back to the Pavilion to
pick up the dirty dishes, which would be washed in the
kitchen of the Nursing Center. Furthermore, when the Pavil-
ion has run out of clean linen, sometimes as often as two or
three times a week (but sometimes there was a sufficient
supply during the entire week), two caring companions
would be assigned to go to the Nursing Center to pick up
clean linen. Other than the delivery of food and the pickup
of dirty dishes, which is done daily, and the much more spo-
radic pickup of clean linen, employees do not leave their re-
spective facilities. And the record is devoid of any evidence
that, even when employees of one facility went to the other,
they had actual contact with any employees there. Rather, the
employees of the Pavilion work in a primarily self-contained
facility. There are separate entrances and separate employee
lounges and restrooms. The caring companions, who wear
name tags indicating that they are employed by the Pavilion,
wear their normal every day clothing, whereas nurses aides
wear uniforms.
I conclude that there was no interchange, and the record
cannot sustain even a finding of a minimal contact among a
few employees.13 The General Counsel contends, however,
that there would have been substantial interchanges had it
not been for Marc’s bias and prejudice. During Marc’s nego-
tiations with the Union regarding its demand for recognition
at the Pavilion, Marc stated his unwillingness to adopt the
Union contract because that might lead to the eligibility of
the nurses aides to transfer from the Nursing Center. Marc
did not desire the ‘‘Camden type’’ of employee at the Pavil-
ion, a reference to the nearby New Jersey city, which has a
substantial black and Spanish-speaking population. Marc tes-
tified that he was referring to the amount of education that
a Camden resident received. Even assuming that this remark
meant that Marc did not want minorities working at the Pa-
vilion,14 a meaning that Marc vehemently denied, the state-
ment is not relevant. It might have applied if Marc were
bound by the Union’s contract, to the extent that he refused
to transfer nurses aides to the Pavilion because of their color
or ethnic origin. However, there is no showing that there was
any duty to transfer aides or that Marc would have trans-
ferred them, had it not been for their color or ethnic origin.
Thus, unlike Meyer’s Cafe & Konditorei, supra, 282 NLRB
1, there has been no showing that Marc’s violation of the
Act prevented the interchange.
Because the General Counsel has failed to prove that the
employees at both the Pavilion and the Nursing Center had
the same day-to-day supervision or that there was a meaning-
ful interchange of employees, I conclude that the Pavilion’s
employees should not be accreted to the unit of the Nursing
Center’s employees represented by the Union.
On these findings of fact and conclusions of law and the
entire record in this proceeding,15 including my observation
of the demeanor of the witnesses as they testified, and my
consideration of the briefs filed by the General Counsel, Re-
spondents, and the Union, I issue the following rec-
ommended16
ORDER
The complaint is dismissed.