Highview, Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1976

223 N.L.R.B. 80 (N.L.R.B. 1976)

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Highview, Incorporated and American Federation of
State, County and Municipal Employees, AFL-
CIO, Petitioner. Case 10-RC-10256
April 6, 1976
DECISION ON REVIEW AND DIRECTION OF
ELECTION
By MEMBERS FANNING, PENELLO, AND WALTHER
On April 3, 1975, the Regional Director for Region
10 issued a Decision and Order in the above-entitled
proceeding in which he declined to assert jurisdiction
over the Employer's operations and accordingly dis-
missed the petition. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations , Series 8, as amended,
the Petitioner filed a timely request for review of the
Regional Director's decision on the ground, inter
alia, that in dismissing the petition he departed from
officially reported Board precedent.
On May 20, 1975, the National Labor Relations
Board, by telegraphic order, granted the Petitioner's
request for review . Thereafter, the Employer filed a
brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding with respect to the issues under review,
including the Employer's brief on review, and makes
the following findings:
The Employer, Highview, Incorporated, is a pri-
vate nonprofit Georgia corporation engaged in the
operation of a nursing home located in Fulton Coun-
ty, Georgia. The home provides both skilled and in-
termediate nursing care to approximately 375 elderly
patients from Fulton and DeKalb Counties. Most of
the Employer's patients are indigent . The Petitioner
seeks to represent what is essentially a unit of service
and maintenance employees.' The Regional Direc-
tor, relying principally on the Board's decision in Ru-
ral Fire Protection Company,2 concluded that the
services rendered by the instant Employer were so
intimately connected with the municipal functions of
the local governments here involved as to warrant
finding that the Employer should share the latter's
exemption from the Board 's jurisdiction . We do not
agree.
t The Intervenor, Service Employees International Union . Local No. 579.
AFL-CIO, did not file a request for review or a brief on review . It appears
from the record , however, that the Intervenor 's unit position is identical
with that of the Petitioner.
'216 NLRB 584 (1975).
The facilities utilized by the instant Employer are
owned by Fulton County, are located on county
property, and were built with the proceeds of a coun-
ty bond issue. Highview is exempt from Federal,
state, and county taxes. It receives certain medicines
and supplies, as well as maintenance and laundry
services, from Fulton County. The county pays for
the insurance on the buildings used by the Employer.
Highview makes no payment to the local govern-
ments for these facilities and services. Additionally,
the Employer receives some direct contributions of
funds from both Fulton and DeKalb Counties, as
well as the city of Atlanta, and Fulton County main-
tains a contingency fund upon which the Employer
has drawn to defray operating deficits. However, the
record reveals that such direct contributions com-
prise only a minor portion of the Employer's total
revenue.3
In all significant aspects the Employer is opera-
tionally independent from and subject to no actual
control by the local governments here involved." The
Employer is managed by an independent self-perpe-
tuating board of directors. There exists no evidence
that the county governments have any voice in the
selection of the board members, are empowered to
effectuate their removal, or can influence, in any
fashion, their decisions. The board of directors has
complete control over wage scales, personnel poli-
cies, and labor relations matters. All of these policies
are effectuated by the Employer's administrator who
3 Although not entirely clear from the record , the Employer's annual
gross revenue would appear to be in excess of $2 million since the Employer
receives an average of slightly over $450 per month for each of its approxi-
mately 375 patients . The parties stipulated that during calendar year 1974
the Employer received approximately $88,000 in direct public assistance
funds from Fulton and DeKalb Counties . No figures indicating the amount,
if any, of direct financial assistance from the city of Atlanta appear in the
record . The parties further stipulated that in calendar year 1974 the Em-
ployer received $1,293,000 in Medicaid payments . not by virtue of any spe-
cial relationship which the Employer has with the state or Federal govern-
ments, but under the Medicaid program . The source of the remainder of the
Employer's projected annual gross revenue (in excess of $600,000) is not
clear from the record , but does include, as payment for services rendered.
social security benefits to which some of its patients are entitled . Further
still, the record indicates that as the Employer does provide care for a num-
ber of private patients that it receives additional revenue therefrom , presum-
ably through third-party insurance or private funds . On the basis of the
foregoing , and in view of the fact that the Employer apparently receives less
than 5 percent of its annual gross revenue in the form of direct payments
from the county governments here involved, we find little merit in the
Employer's contention that its receipt of revenues is so dependent upon, or
its financial affairs so closely tied to, local governmental entities as to war-
rant declining jurisdiction on this basis.
The record does reveal that the Employer must submit annual financial
reports to the county governments . Apparently in return for the direct fi-
nancial assistance which it receives , the Employer must reserve a certain
number of beds for use by county patients . Inasmuch as the building itself
is owned by Fulton County, any improvements thereto must be approved
by the county . In order to protect the use of its monies, patients entering the
facility as indigents must be certified as such by Fulton County welfare
agencies. Aside from the above , which we view as de minimis, there is no
evidence of involvement by any governmental entity in the day-to -day oper-
ations of the Employer.
223 NLRB No. 80
HIGHVIEW , INCORPORATED 647
makes recommendations to the board and whose ac-
tions are reviewed only by the board. Employee
grievances are handled at the first step by Highview
supervisors, at the second step by the administrator,
and at the third step by the board. There is no appeal
to the Fulton County Civil Service Board.
In our view the foregoing facts bring this case
clearly within the ambit of our recently issued deci-
sion in Grey Nuns of the Sacred Heart,' wherein, un-
der strikingly similar facts, we concluded that the
Board's assertion of jurisdiction was proper. As in
Grey Nuns, the instant Employer is a private nonpro-
fit corporation engaged in the provision of health
care. It receives, in furtherance of such activities, as-
sistance from exempt government entities. However,
as we noted in Grey Nuns, the confluence of these
two factors does not necessarily compel the conclu-
sion that an Employer's activities are intimately con-
nected with those of an exempt governmental entity
since the provision of health care, while a legitimate
governmental concern, is not traditionally so exclu-
sive a governmental one that the application of the
intimate connection analysis is per se warranted.
We further note, as we did in Grey Nuns, that such
a view is particularly applicable in situations such as
the instant one where the Employer is operationally
autonomous and receives but a modicum of direct
financial support from exempt governmental entities.
Accordingly, inasmuch as there exists no evidence
that any governmental entity is a joint employer of
the employees sought herein and further since the
Employer otherwise meets the Board's jurisdictional
standards,6 we find it will effectuate the purposes of
the Act to assert jurisdiction over the instant petition.
As indicated the Petitioner seeks a service and
maintenance unit composed of all practical nurses,
licensed practical nurses, nurses aides, orderlies, utili-
ty service workers, housekeeping employees, food
service employees, and laundry and maintenance
employees; excluding registered nurses, clerical, of-
fice clerical, and technical employees, professional
employees, guards, and supervisors. The Employer
apparently does not dispute the appropriateness of a
service and maintenance unit, but in its brief takes
issue with the proposed inclusion of several catego-
ries of employees.
Licensed practical nurses: The Employer employs
approximately 30 to 32 individuals whom it classifies
' 221 NLRB No. 201 (1975). We note that as our decision in Grey Nuns
issued after the Regional Director 's Decision and Order herein that the
Regional Director was without the benefit of the Board 's reasoning in that
case in reaching his conclusions here.
6 The parties stipulated that for the past calendar year the Employer re-
ceived in excess of $ 100,000 in gross revenue for services rendered, and, in
addition , purchased and received goods valued in excess of $50,000 directly
from suppliers located outside the State of Georgia.
as "charge nurses ." All charge nurses at Highview
are LPN's.' As indicated, the Petitioner seeks the.in-
clusion of the Employer's LPN's in the requested
unit. The Employer argues that its charge nurses are
supervisors as defined in the Act and thus should not
be included in any unit found appropriate.
We find it unnecessary to reach the supervisory
argument advanced by the Employer since, as the
Petitioner seeks a service and maintenance unit ex-
cluding technical employees and the Board has previ-
ously found LPN's to be technical employees,' we
shall exclude all LPN's from the requested unit'
Licensed engineers: The Employer's engineering
department is supervised by Chief Engineer Cook.
Under Cook are approximately five state-licensed
engineers , two grounds maintenance employees, a
painter, and a driver. The Employer does not take
issue with the inclusion of the grounds maintenance
employees, driver, or painter, but contends, contrary
to the Petitioner, that the licensed engineers are tech-
nical employees who lack the requisite community of
interest with the other requested employees to be in-
cluded in the same unit with them.
Various state and Federal regulations require the
Employer to employ licensed individuals for the pur-
pose of around-the-clock maintenance and operation
of boilers, generators, and heating and cooling sys-
tems . In addition to these duties, the employees in
question perform maintenance tasks throughout the
facility, including plumbing, electrical work, pipe-
threading, and welding. On occasion a licensed engi-
neer may sometimes man the front desk when the
security officer is required to absent himself. While
these employees do not interchange with other em-
ployees and while they do not have job-related con-
tact with other employees, it is clear that their duties,
involving as they do maintenance of equipment
throughout the facility, bring them into at least inci-
dental contact with other employees.
By virtue of their duties, the engineers possess
skills which are different from other employees and
they receive wages considerably above those enjoyed
by other requested employees. There is no indication
as to what degree of formal education is required of
individuals holding the position of licensed engi-
neers.
7 Though somewhat unclear from the record , it appears that under the
Employer's job classification system the term "charge nurse" is equivalent
to the term LPN. It is clear that all employees occupying the position of
charge nurse are LPN's; what is not clear is whether the Employer employs
any LPN's in other than the charge nurse category . However, inasmuch as
our exclusion of LPN's is based on considerations other than their alleged
supervisory authority, we find it unnecessary to resolve this issue for purpos-
es of our unit determination.
8 See Nathan and Miriam Barnert Memorial Hospital Association d/b/a
Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975).
9 In light of his dissent in Barnert, supra, Member Penello would not
exclude the LPN's on this basis.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to the Employer, we are not persuaded
that because such individuals are subject to state li-
censure requirements or possess certain job-related
skills that they are to be considered technical em-
ployees. Their work is predominantly manual in na-
ture; the degree of formal education required, if any,
does not appear advanced; nor do they perform du-
ties akin to those of employees in the health care
field whom the Board has included in technical
units.10 Accordingly, we find them not to be technical
employees, and decline to exclude them on this ba-
sis."
The remainder of the Employer's argument with
respect to these employees is not on point as it is
directed to the issue of whether the licensed engi-
neers , if separately sought, would constitute an ap-
propriate unit. Here, as the Petitioner has sought to
include the licensed engineers in an overall service
and maintenance unit, a request clearly appropriate
on its face, and further as no union seeks to sepa-
rately represent the engineers, the issue to which the
bulk of the Employer's argument is directed is not
before us and we therefore need not decide it. Ac-
cordingly, we shall include the licensed engineers in
the unit.
Physical therapy: There are three individuals in-
volved in physical therapy at the Employer's facility.
Physical Therapy Coordinator Hoffman is in charge
of all such work. She possesses a professional degree
and is licensed in accordance with Federal and state
regulations. The parties are in agreement that Hoff-
man should be excluded as a professional employee
and/or supervisor.
Physical therapy aide Truett is currently enrolled
as a full-time student in physical therapy and works
part time for the Employer in furtherance of his pro-
fessional education. The parties are in agreement
that he should be excluded on this basis.
Physical therapy aide Bowers is a former volunteer
therapist who at the time of the hearing had begun
full-time employment in the absence of Hoffman
who was then pregnant. Bowers does not function as
a preceptor nor is she attempting to qualify as a li-
censed physical therapist. Although not entirely clear
from the record, it appears she is hourly paid since
her time is computed on the basis of a card which she
turns in.
There is no evidence that Bowers possesses any
authority to hire or fire employees, or to recommend
or effectuate personnel decisions. In Hoffman's ab-
sence , Bowers is apparently responsible for assigning
work to Truett and would be empowered to grant
him time off.
The Employer contends that as Bowers is engaged
in providing patient care she does not possess a suffi-
cient community of interest to be included in the unit
and further contends she should be excluded on the
basis of her alleged supervisory functions. We find
littler merit in these contentions. Whatever authority
she may possess appears routine in nature and is at
best sporadically exercised; we conclude, therefore,
she should not be excluded on this basis. Moreover,
we find Bowers is neither a technical nor a profes-
sional employee, and shares a sufficient community
of interest to warrant her inclusion. Accordingly,
Bowers is included in the unit."
The purchasing department: The Employer's pur-
chasing department is headed by one Gibson, who is
also the Employer's housekeeping coordinator. The
parties agree that Gibson should be excluded.
Working under Gibson is storeroom clerk Perry.
Perry is in charge of the Employer's storeroom and
all materials that are received there. He is responsible
for issuance, invoice control, supply, and distribution
of materials; and in Gibson's absence and with the
administrator's approval may place orders for con-
sumable or replenishable items. He spends virtually
all of his time in the storeroom area and his contact
with other employees is apparently limited to those
occasions when supplies are requisitioned or distrib-
uted.
The Employer seems to contend Perry should be
excluded from the unit as a managerial employee, or
on ground he lacks a sufficient community of interest
with other requested employees. The former conten-
tion is based on the fact that Perry signs receipts for
incoming goods and is, under certain circumstances,
allowed to place orders for consumable goods. We
do not regard these as sufficient indicia of manageri-
al authority as they are either ministerial and routine
in nature , or performed only in the absence of Perry's
immediate supervisor and with the approval of con-
ceded managerial personnel. We find Perry to be nei-
ther a technical nor professional employee, and in
our view his duties make his position analagous to
that of hospital clerical employees whom the Board
has included in overall service and maintenance
units.13 Accordingly, we shall include Perry in the
unit.
12 The Employer additionally contends that upon Hoffman 's return to
full-time work Bowers would again return to strictly volunteer status. While
we find such a prospective arrangement too speculative to warrant exclud-
ing Bowers , we do note that in the event her status should revert to that of
la See Barnert Memorial Hospital, supra. a volunteer she would not be eligible to vote inasmuch as she would not at11 Petitioner has requested the exclusion of employees classified as techni- that time be an employee.
call, but specifically seeks to include the licensed engineers . 13 Newington Children's Hospital, 217 NLRB No. 134 (1975).
HIGHVIEW, INCORPORATED 649
Part-time high school students: The Employer em-
ploys approximately three or four high school stu-
dents as utility service workers in its dietary depart-
ment. The students work approximately 20 hours per
week and receive slightly less in wages than other
full-time utility service workers. They apparently do
not receive scholastic credit for their work experi-
ence; however, the Employer's administrator did tes-
tify that in case of scheduling conflicts between work
and school activities the latter would prevail and the
student would be excused.
While there exists no written or oral agreement be-
tween the schools and the Employer, the nursing
home administrator testified that the students in
question were employed pursuant to a cooperative
education program sponsored by the State whereby
employers assist in the training and economic wel-
fare of high school students. Whatever the exact na-
ture of the program, the administrator indicated that
there exists no agreement to the effect that the high
school students would, upon graduation, assume full-
time positions with the Employer and further indi-
cated that student workers, in fact, did not become
full-time employees upon graduation.
In view of the foregoing, most especially the fact
that the student workers' tenure appears of limited
duration, we find merit in the Employer's contention
that these part-time student employees lack a suffi-
cient community of interest to be included in the re-
quested unit, and we shall exclude them."
Dietary Department Assistant Supervisors Graham,
Chappell, Dozier, and Butler: 15 The Employer's di-
etary operations are administered by S&S Food Serv-
ices, a private contractor. S&S has five employees
who manage this department. The remaining em-
ployees in the department are employed by High-
view, Incorporated, and include approximately 10 or
11 cooks and bakers, 22 dietary aides, 12 full-time
utility service workers, and the 3 or 4 part-time stu-
dent utility service workers referred to above. The
Employer contends that Graham, Chappell, and Do-
zier, whom the Employer refers to as assistant dietary
14 See Pawating Hospital Association, 222 NLRB No. 106 (1976). Member
Fanning considers Pawating inapposite . In that case the record showed sub-
stantial differences between the students involved and employees in the unit
found appropriate with respect to wages, hours, fringe benefits , and other
conditions of employment . He does not believe that those circumstances
exist here , or that it can be said on this record that these students work for
only a "limited duration ." He views these students as regular part-time em-
ployees working along with other dietary department employees and shar-
ing a community of interest with them . Accordingly, he would include these
students in the unit as Petitioner requests . See Gruber's Super Market, Inc.,
201 NLRB 612, fn. 5 (1973).
15 There is little record evidence with respect to Butler, and the
Employer's brief fails specifically to refer to her. However, inasmuch as the
record indicates that she occupies the same position within the dietary de-
partment as Graham , Chappell, and Dozier , we shall treat her in similar
fashion and permit her to vote subject to challenge.
department supervisors, possess and exercise supervi-
sory authority over the dietary aides and utility ser-
vice workers.
The Employer bases its contention solely on the
testimony of Administrator Myers, arguing that
Myers' testimony demonstrates that the individuals
in question possess, inter alia, authority to discipline,
suspend, and assign work.
We have carefully reviewed the testimony relating
to the alleged supervisory status of the individuals in
question, and noted certain inconsistencies therein.16
Myers was apparently not sufficiently acquainted
with the actual duties of these individuals to warrant
our relying on his testimony in resolving their alleged
supervisory status. Accordingly, we shall permit
them to vote subject to challenge.
Activities Coordinator Rich: Rich possesses a pro-
fessional degree and is trained in the field of patient
recreation. She is qualified under appropriate Feder-
al regulations to serve as an activities coordinator.
Her primary duties deal with organizing recreational
activities for residents of the home. She is responsible
for obtaining books, magazine subscriptions, games,
and crafts. She has no other employees assisting her
in performing these duties. In addition, Rich per-
forms certain duties with respect to the admission
and discharging of patients. The exact nature of
these duties is not clear from the record, save for the
indication that they involve getting a particular
patient's papers in order and giving them to an office
clerical employee for typing.
The Employer in its brief on review urges the ex-
clusion of Rich from any unit found appropriate.
The Petitioner has not indicated in its brief its posi-
tion with respect to the inclusion or exclusion of
Rich. However, on the record Petitioner indicated it
was in agreement that Rich should be excluded. Ac-
cordingly, we shall exclude Rich from the unit, in
accordance with the parties' agreement.
Secretary to the personnel coordinator: Personnel
Coordinator Cowdy's secretary performs routine typ-
ing and filing tasks in the personnel department dur-
ing approximately 50 percent of her working time.
During the remainder, she performs similar duties in
the nursing department. The Employer contends this
employee should be excluded pursuant to the parties'
stipulation to exclude office clericals. The Petitioner
has not indicated its position with respect to the unit
placement of this individual. Inasmuch as the record
reveals this employee is engaged in routine office
16 E.g., under examination by the Employer's counsel, Myers indicated
that the individuals in question were responsible for directing other employ-
ees in the preparation and distribution of food. However, he had earlier
testified on at least two occasions under examination by Petitioner's counsel
that he had no knowledge of the specific duties of these individuals.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical work, we shall exclude her from the request-
ed unit.
In accordance with our determinations herein and
the various stipulations 17 of the parties, we shall di-
rect an election among the employees in the follow-
ing unit which we find appropriate for the purposes
17 The parties stipulated the following individuals should be excluded as
supervisors Administrator Myers. Assistant Administrator Payne, Officer
Manager Stucky, Director of Nursing Griggs. Assistant Director of Nursing
Hankins, Personnel Coordinator Cowdy, Medical Records Coordinator Jus-
tice, Purchasing and Housekeeping Departments Coordinator Gibson, and
Assistant Housekeeping Department Coordinators McCray and Arnold
The parties stipulated to exclude Chaplin Westberry and the currently va-
cant position of controller The parties are in agreement to exclude all office
clerical employees , registered nurses , and nursing coordinators
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All full-time and regular part-time service and
maintenance employees, including nurses aides,
orderlies, dietary department employees, house-
keeping employees, licensed engineers, and
other engineering department employees; ex-
cluding all registered nurses, licensed practical
nurses, office clerical employees, technical and
professional employees, guards, and supervisors
as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]