Laurel Associates, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1998

325 N.L.R.B. 603 (N.L.R.B. 1998)

603
325 NLRB No. 102
JERSEY SHORE NURSING & REHABILITATION CENTER
1 Review was requested with regard to: (1) the Regional Director’s
finding that the petitioned-for service and maintenance unit is an ap-
propriate unit for bargaining; (2) the Regional Director’s refusal to
dismiss the petition as premature or to delay the election; and (3)
the Hearing Officer’s rulings limiting the Employer to making offers
of proof with respect to those two issues.
8 The offer of proof failed to indicate the level of supervision in-
volved although it would appear that the Employer meant the imme-
diate supervisory level.
9 The offer of proof asserts that employees in the nurses aide unit
have a starting rate of $8.50 per hour whereas employees in the
other two units start at $7.25. The offer of proof only provided the
starting rate differences.
10 There was no explanation beyond the mere assertion of no inter-
change.
11 In this regard, the offer of proof indicated that the nurses aides,
unlike the employees in the other two units, have direct, albeit un-
specified, patient care responsibilities. However, in describing the
function of dietary aides, the Employer asserted that those employees
not only prepare food but serve it to the patients. This would appear
to entail direct patient contact and care.
12 The offer of proof is silent as to these training differences, ex-
cept that the Employer asserts that nurses aides have some unspec-
ified training in ‘‘some areas of nursing.’’
13 The Employer’s attempt to expand upon its offer of proof fol-
lowing the rejection was denied. The Employer’s request for special
permission to appeal the Hearing Officer’s ruling was denied by the
undersigned by Order dated October 9, 1997.
14 The Employer has not asserted that any employees or classifica-
tions sought by Petitioner are supervisory within the meaning of the
Act. It is well settled that the burden of proving supervisory status
rests on the party alleging that such status exists. Tucson Gas &
Electric Co., 241 NLRB 181 (1979); Bennett Industries, Inc., supra.
15 The Employer’s reliance on this case is misplaced as the mainte-
nance employees sought there were deemed skilled and, therefore
entitled to a separate unit. Hebrew Rehabilitation Center, 230 NLRB
255 (1977); McClean Hospital Corp., 309 NLRB 564 (1992).
Laurel Associates, Inc. d/b/a Jersey Shore Nursing
and Rehabilitation Center and Local 1115-New
Jersey-South SEIU, AFL–CIO, Petitioner. Case
22–RC–11456
April 9, 1998
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX AND
BRAME
The National Labor Relations Board, by a three-
member panel, has considered the Employer’s request
for review of the Regional Director’s Decision and Di-
rection of Election (pertinent parts of which are at-
tached).1 The request for review is denied as it raises
no substantial issues warranting review.
REGIONAL DIRECTOR’S DECISION AND
DIRECTION OF ELECTION
. . . .
The Petitioner seeks to represent a unit of all full-time and
regular part-time nurses aides, rehabilitation aides, rec-
reational aides, laundry and housekeeping employees, main-
tenance employees and dietary aides employed at the Em-
ployer’s Eatontown, New Jersey nursing home. This unit ap-
pears to be a comprehensive service and maintenance unit
with traditional exclusions. At the hearing, the Employer as-
serted that only three separate units within the overall service
and maintenance grouping would be appropriate, namely (1)
all nurses aides including rehabilitation aides and recreational
aides (56 employees); (2) environmental services department
which includes laundry, housekeeping and maintenance em-
ployees (10 employees); and (3) dietary employees (12 em-
ployees). In view of the Employer’s unit contention, the
Hearing Officer required the Employer to make an offer of
proof in support of its unit positions. The Employer asserted
that if permitted to present evidence, it would prove that
each of the three units has separate supervision,8 different
wage rates,9 no interchange among the groups,10 each group
has different job functions and responsibilities11 and different
training requirements.12 The Hearing Officer rejected the
Employer’s offer of proof and precluded the Employer from
presenting testimony on the unit issue noting that the unit
sought was presumptively appropriate.13
The Board held in Bennett Industries, Inc., 313 NLRB
1363 (1994), that it has a duty to ensure due process for the
parties in connection with the conduct of Board proceedings.
In this regard, the Board provides parties with the oppor-
tunity to present evidence and argue positions concerning rel-
evant issues. However, the Board also has a duty to protect
the integrity of its processes against unwarranted burdening
of the record and unnecessary delay. Here, the Employer,
was provided with the opportunity to make an offer of proof
in support of its unit contentions despite the appropriateness
of the facially valid unit sought by the Petitioner. I find that
the evidence offered by the Employer is inadequate to over-
come the presumptively appropriate unit sought by the Peti-
tioner. In making this finding, I have considered Congress’
admonition to avoid proliferation of bargaining units in the
health care industry. Thus, including nurses aides, rehabilita-
tion aides, recreational aides, laundry and housekeeping em-
ployees, maintenance employees and dietary aides in the
same unit is in accord with this congressional intent. In these
circumstances, I find that the Hearing Officer struck the
proper balance between the right to due process and the need
for prompt resolution of a question concerning representa-
tion. Mariah, Inc., 322 NLRB No. 114 (1996); HeartShare
Human Services of New York, Inc., 320 NLRB 1 (1995);
Bennett Industries, Inc., supra.
In this matter, noting that the unit sought is appropriate on
its face as it appears to include all service and maintenance
employees, save for traditional exclusions, I find that the unit
sought by the Petitioner constitutes a unit appropriate for the
purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.14 Park Manor Care Center, 305 NLRB
872 (1991); Newington Children’s Hospital, 217 NLRB 793
(1975); also see generally Hebrew Home & Hospital, Inc.,
311 NLRB 1400 (1993).15 In making unit determinations, the
Board’s task is not to determine the most appropriate unit,
but simply to determine an appropriate unit. P.J. Dick Con-
tracting, 290 NLRB 150 (1988). In so doing, the Board
looks ‘‘first to the unit sought by the petitioner. If it is ap-
propriate, [the] inquiry ends. If, however, it is inappropriate,
the Board will scrutinize the Employer’s proposals.’’ Dezcon,
Inc., 295 NLRB 109, 111 (1989). As noted above, I find that
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604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The Employer’s evidence in support of its expanding unit con-
tention was elicited via an offer of proof that was done in question
and answer format through the testimony of the Employer’s Admin-
istrator, Mark Brosnan.
the unit sought by the Petitioner is appropriate for purposes
of collective bargaining.
There remains for consideration the Employer’s contention
that the sought after unit is expanding and there is not cur-
rently a representative complement of employees warranting
an election. The appropriate test for determining an expand-
ing unit is found in Endicott Johnson de Puerto Rico, Inc.,
172 NLRB 1676 (1965), where the Board held that the ap-
propriate consideration is whether the present employee com-
plement is substantial and representative. See also, General
Cable Corp., 173 NLRB 251 (1968). Because no definitive
rule has been enunciated as to what ‘‘substantial and rep-
resentative’’ is, the Board will consider several factors before
making that determination. One factor is the acuity of the
Employer’s projection. American Brass Co., 120 NLRB 1276
(1958); General Engineering Inc., 123 NLRB 586 (1959);
Mermac Mining Co., 134 NLRB 1675 (1961).
The record disclosed16 that the Employer began operations
on March 17, 1997, and is currently licensed by the State of
New Jersey to have 95 beds which were not all filled at the
time of the instant hearing. The record does not indicate the
exact occupancy at the present time. As indicated above, the
Employer employs approximately 68 employees in the unit
sought by the Petitioner. The Employer’s facility consists of
five patient wings, which will have a capacity of 158 beds
when fully occupied. Currently, only three patient wings are
in use. The Employer asserts that it intends to apply to the
State for an increase of 30 beds in the near future, ‘‘if we
so choose.’’ The Employer further asserts that at full capac-
ity (achievable within 12 months), the nursing home will be
licensed to operate five patient wings consisting of 158 beds.
In this connection, the Employer anticipates the need for 120
unit employees to staff this operation at full capacity. The
record is devoid of any evidence regarding the rate of expan-
sion in the future or any evidence of anticipated real in-
creases in capacity. As such, any determination as to when,
if ever, the Employer will be operating at full capacity would
be mere speculation. Gerlach Meat Co., Inc., 192 NLRB 559
(1971); Beaert Steel & Key Research & Development Co.,
176 NLRB 134 (1969). Finally, the record discloses that the
job classifications noted above are all in place with no addi-
tional job classifications anticipated. In these circumstances,
I find, based upon the evidence proffered in the offer of
proof and the case law cited supra that a representative and
substantial complement of employees by job classification
and by number are presently employed.
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