Toledo District Nurse Association

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 743 (N.L.R.B. 1975)

TOLEDO DISTRICT NURSE ASSN. 743
Toledo District Nurse Association and American
Federation of State, County and Municipal Em-
ployees, AFL-CIO. Cases 8-RC-9551 and
8-RC-9578
February 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, KENNEDY,
AND PENELLO
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officers Robert S.
Bauders and Barbara Fredericks of the National
Labor Relations Board . Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and State-
ments of Procedure , Series 8, as amended , the case
was transferred to the Board for decision. A brief
was filed by Petitioner.
The Board has reviewed the Hearing Officers'
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this case , the Board
finds:
Petitioner seeks to represent separate units of the
Employer's nursing and office clerical employees.
The Employer, Toledo District Nurse Association
(TDNA), is an Ohio nonprofit corporation organized
to render certain community nursing services regard-
less of ability to pay. Its services include bedside care
under the direction of a physician, nutrition counsel-
ing, physical therapy, and health supervision in the
home . Annually it has gross revenues in excess of
$100,000 , and receives goods valued in excess of
$2,000 from sources outside the State of Ohio.
According to its constitution and bylaws, the
membership of TDNA consists of an "Active Board
of Trustees ." Management is vested in a board of 27
trustees, consisting of 23 who are elected, 1 appoint-
ed by the mayor of the city of Toledo, and 3 ex
officio: the health commissioner of the Toledo City
Board of Health, the chairman of the medical
advisory committee to the Toledo District Nurse
Association , and the "President of The Women's
Council."
TDNA and the Toledo City Board of Health have
established Community Nursing Services (CNS) for
the purpose of jointly rendering public health nursing
I All personnel are under the supervision of the executive director, with
responsibility carved out under the guidance of the health commissioner,
"and shall adhere to the policies and procedures approved by the two
Boards."
"In order that conditions of employment be similar for all staff working
in the program, changes in personnel policies being considered by either
Board will be brought to the Coordinating Committee for review and
services, and avoiding duplication of effort, The
agreement between the two organizations provides
that TDNA "shall furnish the services of its nurses to
the Board of Health for compensation to be mutually
agreed upon." It also provides that TDNA shall
continue to, exist as a separate entity governed by its
constitution and bylaws. The city health commission-
er is responsible for the combined activities of the
nursing services according to policies established by
the separate governing boards of the parent agencies,
but authority to administer the combined activities is
vested in an executive director appointed jointly by
the board of health and the board of directors of
TDNA. In addition to her responsibility for the joint
services, the executive director is also the executive
director of TDNA. The agreement further contains
provisions governing such subjects as the annual
budget, fees which may be collected, and personnel.'
A coordinating committee comprised of representa-
tives of the board of health and TDNA is established
to "review and interpret the policies and problems
relating to the administration of the Visiting Nurse
Service and to make recommendations to the Board
concerning such policies." Finally, there is a medical
advisory committee created to advise the board on
medical questions.
The agreement is terminable by either party on 90
days' written notice.
The services offered by CNS totally integrate the
efforts of TDNA and city nurses.2 When the nurses
make service visits, they identify themselves only as
CNS nurses and they wear an emblem with those
initials.
Each, nurse has a supervisor, who may be an
employee of TDNA, or the city. All the supervisors
report to the director of home health services, Mrs.
Ruth Franklin, who is an employee of TDNA.
Assignment decisions are made by the executive
director. A particular unit of nurses on an assign-
ment can contain both city nurses and TDNA
nurses. The supervisor for such a unit can also be
either a city employee or a TDNA employee.
CNS has a business manager who is an employee
of TDNA. The business manager has under him one
supervisor, Mary Ann Cox, who manages the office
clericals. She is a TDNA employee, but supervises all
the clericals, both TDNA and city.
Recommendations as to promotions are made by
the supervisors to the executive director, who makes
the decisions. This applies to both city nurses and
consideration of the feasibility of both Boards adopting the policy."
However, each organization retains the right "to increase or decrease the
number of nurses employed by it, fix their salaries and provide for their
promotion or change of classification."
2 TDNA and CNS have their offices in the Toledo Health Center, which
is owned by the city.
216 NLRB No. 130
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TDNA nurses. In the case of requests for time off for
maternity and vacations, the decision is made by the
supervisor whether the employee is on the city or
TDNA payroll.
The primary sources of income for TDNA are the
Community Chest, the Crusade of Mercy Funds,
third party payments from a variety of different
agencies such as Medicare, Blue Cross, Medicaid,
and aid for the aged. Private patients pay for
themselves. There are also endowments and invest-
ments. The nursing services furnished by TDNA to
the board of health are compensated as mutually
agreed upon by TDNA and the board of health.
Petitioner contends that the Board should assert
jurisdiction because TDNA is an independent
employer within the meaning of the Act. It points out
that TDNA has continued to maintain its own
identity, employees, payroll, treasury, board of
trustees, constitution, bylaws, supervisors, and all of
the traditional tests of an employer. Petitioner
further contends that the contract between TDNA
and the city of Toledo does not give the city
authority or control over TDNA'S employees. We do
not agree with these contentions. We find that the
relationship between TDNA and the city of Toledo
has in effect made them joint employers of the
employees involved.
A careful reading of the combination agreement
for CNS clearly establishes that the city of Toledo
has control over the joint operations of TDNA and
the city. In the article relating to administrative
responsibilities it is set forth that the health commis-
sioner , an employee of the city of Toledo, shall be
responsible for the combined activities of CNS.
Although he delegates responsibility and authority to
administer the combined activities to the head of
TDNA, he is still the person ultimately responsible
for the operation of CNS.
There are many other factors which establish the
joint employer status of CNS. In its operations, CNS
makes no distinction between TDNA activities and
city activities. Thus the nurses, when they pay visits,
identify themselves only as CNS nurses and wear an
emblem with those initials. The chain of command is
3 Sec. 2(2) of the Act provides, in part:
The term "employer" includes any person acting as an agent of an
employer ... but shall not include the United States or any wholly
owned Government corporation . . . or any State or political
subdivision thereof ... .
4 Massachusetts Society for Prevention of Cruelty to Animals, 203 NLRB
98(1973)
Cf. Servomation Mathias, Pa., Inc., 200 NLRB 1063 (1972); Slater.
Corporation, 197 NLRB 1282 (1972).
6 Our dissenting colleague relies on the Herbert Harvey decision as
authonty for asserting jurisdiction in the present case . In Harvey, the
employer's employees were engaged exclusively in the operation and
maintenance of the buildings in which the World Bank, an exempt
institution , was located . These housekeeping duties had no connection with
the functions of the World Bank as an investment institution . On this
mixed. Supervisors on either payroll supervise city
and TDNA nurses without discrimination. When
assignment decisions are made, there is no segrega-
tion between the two groups of nurses. The salary for
the nurses is the same regardless of whether they are
TDNA nurses or city of Toledo nurses. It even
appears from the record that there has been some
shuttling back and forth of nurses from TDNA to the
city and vice versa, an indication that the separating
lines between both organizations have become
blurred. TDNA nurses and city nurses receive the
same treatment with respect to promotions, materni-
ty benefits, vacations, and discipline. Even though
TDNA retains its independent sources of income, the
nursing services furnished by TDNA to the board of
health are compensated as mutually agreed upon by
TDNA and the board of health, a public agency
receiving public funds. The intermingling of employ-
ees is not only at the nurse level, but also at the
clerical level.
The fact that the contract is terminable upon 90
days' notice does not alter the effective merger
consummated in practice. The CNS nursing services
are planned in relation to the total public health
program in the community under the direction of the
health commissioner of the city of Toledo. The
annual budget of the CNS is approved annually not
only by the TDNA Board, but by the board of health
of the city. Finally, the coordinating committee
which reviews and interprets policies and problems
relating to CNS is further evidence tending to show a
joint employer status.
We have found that TDNA and the city of Toledo
are joint employers of the employees Petitioner seeks
to represent. Accordingly, we are precluded by
Section 2(2) of the Act3 from asserting jurisdiction
herein.4 Moreover, even if we were to find that
TDNA and the city of Toledo are not joint
employers of the employees involved we would
nevertheless in the exercise of our discretion decline
to assert jurisdiction because of the intimate relation-
ship between TDNA and the city of Toledo.5 We
shall therefore dismiss the petitions .6
ground , the Board found that the maintenance company did not share the
exemption of the bank. In the present case, on the contrary, the Employer
renders the same services as the exempt Toledo City Board of Health. In
fact, the two services are so intermingled as to constitute for operational
purposes a single service . Under these circumstances , the Employer shares
the exemption of the city of Toledo. As stated by the Board in Herbert
Harvey, Inc. (171 NLRB at 239-240):
The Board has .,.. uniformly held that the assertion of jurisdiction
over a contractor providing services for an institution exempted from
the process of the Act is dependent upon the relationship of the services
performed to the exempted functions of the institution . Where the
services are intimately connected with the exempted operations of the
institution, the Board has found that the contractor shares the
exemption ; on the other hand , where the services are not essential to
such operations the Board has found that the contractor is not exempt
TOLEDO DISTRICT NURSE ASSN.
ORDER
It is hereby ordered that the petitions herein be,
and they hereby are, dismissed.
MEMBER FANNING, dissenting:
The majority has dismissed the petition here since
it has found that Toledo District Nurse Association
(TDNA) and the city of Toledo are joint employers
of TDNA's employees whom Petitioner seeks to
represent and therefore that TDNA somehow shares,
with the city of Toledo, the city's Section 2(2)
statutory exemption from the Act's processes. I think
it clear, however, consistent with applicable Board
and Court precedent, that the finding of a joint
employer status here, even if justified, is not
dispositive of the question whether jurisdiction
should be asserted over TDNA. I therefore dissent
from the majority' s dismissal based on this joint-
employer finding.?
Rather, I think jurisdiction should be asserted here
if, regardless of the degree of intergration that may
exist between TDNA's operations and those of the
city of Toledo, TDNA has retained sufficient control
over the employment conditions of its employees to
enable it to bargain effectively with a union. Since I
think TDNA has retained such effective control, I
would assert jurisdiction here.8
That a joint-employer finding is not determinative
of the issue before us is clearly shown in the Board's
supplemental decision in Herbert Harvey, Inc.,9 and
the subsequent court of appeals decision affirming
the Board's supplemental decision.10 In its Supple-
mental Decision, the Board had accepted as the law
of the case the circuit court's earlier holding" that
Harvey and the International Bank for Reconstruc-
tion and Development, commonly known as the
World Bank , were joint employers of the employees
involved there.12 The Board had then found that the
World Bank was an entity not subject to the Board's
jurisdiction. Notwithstanding these findings, howev-
er, the Board had concluded that jurisdiction could
and asserts jurisdiction over the contractor 's activities.
See Rural Fire Protection Co, 216 NLRB No. 95 (1975).
7 Since I do not think that a joint employer finding is determinative of
the issue presented here , I find it unnecessary to decide whether in fact a
joint-employer relationship exists between TDNA and the city of Toledo
s TDNA is funded essentially through chantable contributions. Annual-
ly it has gross revenues in excess of $100 ,000, and receives goods valued in
excess of $2,000 from sources outside the State of Ohio. It is thus subject to
the Board 's jurisdiction . See, e .g., Visiting Nurse Association, Inc., 188 NLRB
155 (1971).
9 171 NLRB 238 (1968).
io 424 F.2d 770 (C.A.D.C ., 1969)
745
still be asserted over Harvey if Harvey retained
sufficient control over the employment conditions of
its employees so as to enable it to bargain effectively
with a union. Finding that Harvey did possess such
control, the Board therefore asserted jurisdiction.
On appeal, the circuit court, as the Board had
done, took to be the law of the case its earlier holding
that Harvey and the World Bank were joint
employers. The court noted further, however, that
"the issue then arising before the Board . . . was
whether, in this alliance of exempt and nonexempt
employers, Harvey is vested with enough autonomy
over the employment arrangements and working
conditions to enable it to bargain efficaciously with
the Union." 13 Cautioning that "the fact that the
Bank was exempt and shared in some degree the
regulation of employment conditions would not ipso
facto bar an assertion of jurisdiction over Harvey," 14
the court concluded that the Board had been correct
in asserting jurisdiction over Harvey, despite Har-
vey's joint-employer status with the World Bank,
because of the degree of control Harvey possessed
over its own employment relations.
Clearly, then, the majority's reliance on its joint-
employer finding between TDNA and the city of
Toledo as a basis for dismissing the instant petition is
incorrect. Rather, judging by the correct standard;
i.e., the degree of control TDNA possesses over its
own employment relations, I note the following:
The agreement under which TDNA operates with
the city specifies that TDNA shall continue to exist
as a separate entity governed by its own constitution
and bylaws. To that end, TDNA maintains its own
employees, its own payroll, its own treasury, its own
board of trustees, its own personnel policies commit-
tee, its own supervisors, and its own grievances
procedure. TDNA continues to hire, fire, ultimately
discipline, promote, and grant pay increases and
benefits to its own employees, and its employees who
work with public employees are not affected by the
personnel policies of the city as the city's employees
are not affected by TDNA's personnel policies.
i i See 385 F 2d 684 (1967)
12 Pursuant to a contract with the World Bank , Harvey performed
service and maintenance duties in buildings in the District of Columbia
owned by the World Bank . In its initial decision the Board had directed an
election in a unit compassing employees performing these services See 159
NLRB 254 (1966)
i3 Supra at 774 (fn omitted)
i4 Supra at 774, fn 29
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In such circumstances , I think it clear that,
notwithstanding the degree of integration of TDNA's
and the city's services , TDNA possesses sufficient
control over its own employees ' working conditions
to allow it to bargain with a union and therefore I
would assert jurisdiction here and I dissent from the
majority's failure to do so.15
15 As a separate alternate ground for dismissing the petition , the majority
concludes that there is an "intimate relationship" between TDNA and the
city of Toledo. By dismissing on this alternate basis, the majority again fails
to consider the relevant factor of the degree of control possessed by TDNA
over its own employment relations and gives weight again to an irrelevant
factor . See Sis-Q Flying Service, Inc, 197 NLRB 195, 196 (1972). 1 therefore
dissent also from the consideration given this alleged "intimate relation-
ship."