Silver Lake Nursing Home

National Labor Relations Board - Board Decisions

Sep 17, 1969

178 N.L.R.B. 478 (N.L.R.B. 1969)

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emanuel Birnbaum and John W . Jones d/b/a Silver
Lake Nursing Home and Licensed Pratical Nurses
of New York , Inc., Petitioner . Case 29-RC-1170
September 17. 1969
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CIIAIRMAN MCCU LI OCH AND MEMBERS
JENKINS AND ZAGORIA
On March 25, 1969, the Regional Director for
Region 29 issued a Decision and Order in the
above-entitled proceeding, in which he dismissed the
petition on the ground that the requested unit is
inappropriate. Thereafter, in accordance with
Section 102 67 of the National Labor Relations
Board Rules and Regulations, as amended, the
Petitioner filed a timely request for review,
contending that the Regional Director departed
from officially reported Board precedent in
dismissing the petition. The Intervenor' filed a
statement in opposition to Petitioner's request for
review.
By telegraphic order dated May 16. 1969, the
National Labor Relations Board granted the request
for review. Thereafter, the intervenor filed a brief
on review.
The Board' has considered the entire record in
this case, including the briefs of the parties, with
respect to the issues tinder review, and makes the
following findings.
The Petitioner desires to represent a unit of
certain licensed practical nurses employed by the
Employer. The Regional Director, in agreement
with the Employer, the Intervenor, and the
Metropolitan New York Nursing Home
Association, Inc. (herein called the Association) of
which the Employer is a member, dismissed the
petition on the ground that the requested unit is
inappropriate. We find, contrary to the Regional
Director, that the requested unit is appropriate.
The Employer operates several nursing homes in
or near the New York City metropolitan area
including the one here involved which is located on
Staten Island and began operations about December
1966. The Employer's staff at this home includes 15
licensed practical nurses, in addition to registered
nurses. nurses aides, housekeeping and maintenance
employees. Petitioner seeks a unit of the licensed
practical nurses at this location
The Association is composed of some 80 of the 92
nursing homes in the city of New York. In March
'Licensed Practical Nurses Guild of the Medical rcchnology , Nursing
Arts and Office Employees Division of Local 144, Hotel and Allied Service
Employees Union. Service Lmployecs International Union, AFL-CIO,
intervened on the basis of a contractual interest
'Pursuant to the provisions of Sec 3 (h) of the National Labor Relations
ALL, as amended , the Board has delegated its powers in connection with
case to a three.-member panel
1965, following a card check conducted by the
Associate Counsel of the New York City
Department of Labor, the intervenor was recognized
as the bargaining representative for a multiemployer
unit of licensed practical nurses. Thereafter the
Association entered into • a contract covering an
Associationwide unit of licensed practical nurses
which is effective from March 1, 1965, until August
31, 1969. The Association and the Intervenor also
have two additional contracts covering separate
units of registered nurses and blue collar workers
When the Employer opened its Staten Island
home in late 1966 it was not a member of the
Association. In January 1967, the Employer entered
into separate agreements with the Intervenor in
which the Employer agreed to be hound by all the
terms of the Association's contracts covering
licensed practical nurses, registered nurses, and blue
collar workers, respectively. At the same time the
Employer agreed to be bound by the agreement
covering licensed practical nurses, the intervenor
waived immediate application of that contract's
union-security provisions and the provision requiring
the Employer to contribute to the pension fund. At
that time the Intervenor also, apparently. waived
immediate compliance with other provisions of the
contract.
On April 5, 1967, the Employer applied for
membership in the Association and its application
was accepted. On August 25, 1967, the Employer
executed an Agent Authorization in which it
designated the Association as its
collective-bargaining representative.
The record indicates that - consistent with the
original arrangement between the Employer and the
Intervenor - a number of the terms of the
collective-bargaining contract covering the licensed
practical nurses at the Employer's nursing home
here involved were not enforced either before or
after the Employer joined the Association. Thus, the
employees are paid at a higher rate than the
contract scale - one such increase resulting from
direct negotiations between the Employer and the
Intervenor in September 1967, a date after the
Employer became a member of the Association;
there have been significant departures from the
overtime provisions of the contract, the holiday
provisions have not been uniformly followed; and
the Employer made no contributions to the pension
and welfare funds of the intervenor No union
stewards were elected or appointed for the licensed
practical nurses, and, although some grievances were
processed which affected these employees as well as
the blue collar workers, it does not appear that the
licensed practical nurses themselves utilised their
contract procedures.
On or about January 20. 1969. the Intervenor
demanded that the contract be enforced and the
Employer informed the licensed practical nurses that
they would be required to pay union dues in
accordance with the union-security provisions of that
178 NLRBNo.71
SILVER LAKE NURSING HOME 479
agreement .' Thereupon the licensed practical nurses
contacted the Petitioner who filed the instant
petition on January 23.
The Regional Director found that the Intervenor's
failure, prior to January 1969, to enforce its
contract is an insufficient ground to negate a finding
that the Employer's licensed practical nurses have
become a part of the multiemployer unit. The
Regional Director rather concluded that, since the
Employer has joined the Association and agreed to
be bound by group bargaining, the Employer and
the Intervenor have taken definitive action to
include these employees in the multiemployer unit.
He accordingly found that a unit limited to the
Employer's licensed practical nurses is
inappropriate. We disagree.
A single-employer unit is presumptively
appropriate in the absence of a controlling history of
bargaining in a multiemployer unit .' And an
employer will not be deemed to have included its
employees in a multiemployer unit unless it has
manifested an unequivocal intent to he bound by
group rather than individual action in collective
bargaining.'
In the present case the bargaining history for the
licensed practical nurses has been extremely limited.
Thus, these employees have not been accorded a
number of benefits which normally flow from
collective bargaining and, in fact, have been
deprived of a number of the benefits set forth in the
very contract which purportedly governed all their
terms and conditions of employment. Thus, as
recited above, several benefit provisions of that
contract were never enforced,` no representatives
were appointed at the Employer's nursing home for
the licensed practical nurses and the grievance
provisions of the contract were not utilized in the
nurses' behalf. The only significant evidence of
Intervenor's direct representation of the licensed
practical nurses -other than the execution of the
contract which was supposed to cover their terms
and conditions of employment-is to be found in the
September 1967 wage increase which Intervenor
negotiated for them.
it does not appear that any of the licensed practical nurses joined the
Intervenor after employment by the Employer nor does it appear that any
of them authorized Intervenor to bargain for them prior to the Employer's
recognition of Intervenor
E g , Chicago Metropolitan llomebudderc Association . 119 NLRB
1184, 1185
'E g . Quality Limestone Products . Inc . 143 NLRB 589, 591
Intervenor explains in its brief that it is customary not to cntore, some.
of Its contract provisions against a new nursing home , such as the
Employer, while such a home is getting on its feet But, Intervenor argues,
other benefits under its contract -including such matters as sick leave,
leaves of absence , maternity leaves, workweek , lunch periods, work shifts
and meals were furnished by the Employer as provided by the contract
the record does not support this contention the Employer ' s administrator
testified that he had never seen the Intervenor's contract until the hearing
and that in providing the foregoing benefits to employees he merely
followed what he understood to be industry practice as applied to licensed
practical nurses He testified that he pays the going rate and in some cases
his rate of pay is independent of the contract provisions Even assuming
however, that the foregoing benefits were provided pursuant to the
Further, we are not convinced that the Employer's
involvement in such bargaining as did occur
demonstrates an unequivocal intent on its part to be
bound by the action of the mutliemployer group.
We rather conclude, after consideration of all the
circumstances, that the limited bargaining for the
Employer's licensed practical nurses has been on a
single-employer basis. Thus, as previously set forth,
the Employer' s initial recognition of the Intervenor,
in January 1967, was on the basis of a
single-employer unit of these nurses at the
Employer's Staten Island home,' and the Intervenor
at that time granted the Employer an individual
exemption from a number of the requirements of the
collective-bargaining agreement. Even after
authorizing the Association to bargain for it in
August 1967, the Employer bargained separately
with Intervenor for a wage increase for its licensed
practical nurses. And, thereafter until the time the
petition was filed, the Intervenor continued the
Employer's individual exemption from many of the
provisions of the contract. Against this background,
we conclude that, notwithstanding its bargaining
authorization to the Association, the Employer-with
the acquiescence of the Intervenor and, apparently.
of the Association as well' - continued to chart its
own separate course in labor relations insofar as its
licensed practical nurses were concerned.
Having satisfied ourselves that there is no
controlling history of multiemployer bargaining, we
further find that a unit limited to the Employer's
licensed practical nurses at its Staten island home is
appropriate A single location unit is presumptively
appropriate,' and a finding of the appropriateness of
a unit composed of the Employer's licensed practical
nurses at this home is moreover supported by the
limited bargaining history Further, the Employer's
Staten Island nursing home operates autonomously
under the direction of its own administrator, and
there is no showing of any regular interchange of
the licensed practical nurses at this home with any
of the Employer's other employees at this or other
locations. Finally, the Employer's registered nurses
and blue collar workers at the Staten Island home
are already represented under separate contracts by
the Intervenor.
Since a unit of the Employer's licensed practical
nurses at the Staten Island home is appropriate, the
question then becomes whether the petition is barred
by the Intervenor's collective-bargaining agreement
contract, the failute of the Employer to comply with other provisions of
that agreement must mean that the Employer, at all relevant times, had its
own separate arrangement with Intervenor which varied from the
requirements of the contract
'Mere adoption of a muluempioyer contract by an individual employer Is
not sufficient to include an employer in a multiemployer unit F g,
Colonial Cedar Compani , Inc 119 NLRB 1613 The Employer did not
authorize the Association to bargain in its behall until several months
later
'Ihere is no indication that the Association protested the Employer's
failure to comply fully with the contract's provisions
'See, e g , Western and Southern Life Insurance Company, 163 NLRB
138, enld 391 F 2d 119 (C 1 3), cert denied 393 U S 978
480 DECISIONS OF NAT-IONAL LABOR RELATIONS BOARD
covering licensed practical nurses.'"
We find that the contract is not a bar. Because of
the Employer's exemption from so many provisions
of that agreement and the Employer's practice of
paying wage rates at variance from it, we find that
the contract. when made, did not chart with
adequate precision the actual terms and conditions
of employment that were to be applied so that the
contract was not one to which the parties, and the
employees, could look for guidance in their
day-to-day problems." In these circumstances, we
cannot honor that agreement as one imparting
sufficient stability to the bargaining relationship to
justify us in withholding a present determination of
representation. 12
In view of the foregoing, we find that a question
affecting commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Section 2(6) and (7) of the
Act.13
We find that the following employees constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
All licensed practical nurses at the Silver Lake
Nursing Home in Staten Island, New York,
excluding all other employees, office clerical
employees, professional employees, -watchmen,
guards and supervisors as defined in the Act.
[Direction of Election" omitted from publication.]
"The Regional Director found it unnecessary to consider this contention
"Appalachian Shale Products Co. 121 NLRB 1160, 1163
"Raymond 's, Inc, 161 NLRB 838, 840
"See International Paper Company. Southern Kraft Division. 172
NLRB No. 100 Cf Butte Medical Properties . d/b/a Medical Center
Hospital. 168 NLRB No 52, Reynolds Electrical and Engineering Co .
133 NLRB 113; Hospital Hato Teias. Ill NLRB 155
"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; N L R B v Wyman-Gordon Company,
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 29 within 7
days of the date of this Decision on Review 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