Lutheran Welfare Services of Northeastern Pennsylvania

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 886 (N.L.R.B. 1995)

886
319 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 One dietition works part-time only at the Pavilion.
Lutheran Welfare Services of Northeastern Penn-
sylvania, Inc. and Local 170, Union of Needle
Trades, Industrial and Textile Employees,
AFL–CIO, Petitioner. Case 4–RC–18697
November 30, 1995
DECISION ON REVIEW
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Acting Regional Director’s Decision and
Direction of Election (pertinent portions are attached).
The Employer’s request for review is granted with re-
spect to the appropriateness of the single-facility unit
and the supervisory status of the Employer’s charge
nurses. Having carefully examined the entire record,
we find, contrary to the Acting Regional Director, that
the petitioned-for unit of nonprofessionals at the Em-
ployer’s St. Luke Manor facility is not appropriate. We
also conclude that the issue of the LPN charge nurses’
supervisory status may best be resolved through the
challenge procedure.
The Employer operates a 104-bed facility named St.
Luke Manor (the Manor) in Hazleton, Pennsylvania,
that provides skilled and intermediate care to elderly
residents with an Alzheimer’s unit. The Petitioner
seeks a unit that essentially includes all nonprofes-
sional employees, including full-time and regular part-
time nursing, dietary, housekeeping, laundry, mainte-
nance, and activities department employees, at the
Manor. On the same medical campus, the Employer
also operates a 120-bed facility named St. Luke Pavil-
ion (the Pavilion) that provides the same patient care
services as the Manor, except it has no Alzheimer’s
unit. The Employer claims that the only appropriate
unit must include nonprofessional employees at both
facilities.
The Manor and the Pavilion are about 100–200 feet
apart, and are separated by a parking lot used by both
facilities. The Employer’s director of human services is
in charge of all personnel matters for both facilities.
The disciplinary procedure applicable to employees at
the Manor and the Pavilion is set forth in the Employ-
er’s handbook. Although corrective counseling starts at
the supervisory level, suspensions or discharges must
be reviewed by the director of human services and the
corporate vice president who is responsible for both fa-
cilities. The Employer posts job openings at all its fa-
cilities, but prefers to fill vacancies with employees
who work at the facility where the opening exists.
In July 1995, the Employer made Lynn Walter the
head of an umbrella department, which includes laun-
dry, housekeeping, maintenance, transportation (driv-
ers), and groundskeeping employees for both facilities.
Laundry for both the Manor and Pavilion is done by
nine employees working at the Manor. Another em-
ployee is stationed at the Pavilion and collects dirty
laundry there. There are eight maintenance employees,
with five stationed at the Pavilion, including two main-
tenance employees, two porter watchmen, and a
groundskeeper. One of the Pavilion maintenance em-
ployees spends 75 percent of his time at the Manor;
the porter watchmen take out the trash and perform
various jobs for both facilities; and the groundskeeper
takes care of the entire campus. Of the three Manor
maintenance employees, two spend up to 2 days per
week working at the pavilion. Two drivers, who report
to Walter, are based at the Manor and provide trans-
portation and delivery services for the entire Hazelton
campus. There are eight housekeeping aides at the Pa-
vilion and four at the Manor; two of the Pavilion aides
work at the Manor 2 days weekly.
In the dietary department, there are 14 employees
based at the Manor and 16 at the Pavilion. All these
employees report to Diane Royce, who is the depart-
ment head, and several dieticians float beween the two
facilities.1 They attend weekly department meetings
that Royce holds at the Manor. The Employer pres-
ently is consolidating the department so that the Manor
will prepare cold foods and the Pavilion hot foods for
patients at both facilities.
Although patient care itself, as the Acting Regional
Director found, generally proceeds independently at the
two facilities, the unit found appropriate by the Acting
Regional Director includes pool nurses who worked at
least 4 hours weekly during the calendar quarter pre-
ceding the eligibility period. The pool nurses are as-
signed to work at either facility, as needed. There have
been only five permanent transfers of nurses between
the two facilities since 1991.
In Manor Healthcare Corp., 285 NLRB 224 (1987),
and Mercy Health Services North, 311 NLRB 367
(1993), the Board reaffirmed the presumptive appro-
priateness of a single-facility unit in the health care in-
dustry. We find, however, that the Employer has suc-
cessfully rebutted this presumption in this case. In
Child’s Hospital, 307 NLRB 90 (1992), the Board
found that the employer’s nursing home, hospital, and
shared services entity were sufficiently integrated, both
physically and operationally, to require that they be
treated as a single facility. A single human resources
department established and administered all employ-
ment policies. The personnel handbook covered all em-
ployees, and all employees received uniform benefits.
Vacancies were posted employerwide. Further, the hos-
pital and nursing home in Child’s Hospital also dem-
onstrated a considerable degree of integration of oper-
ations. Laundry, pharmacy, housekeeping, dietary,
887LUTHERAN WELFARE SERVICES OF NORTHEASTERN PENNSYLVANIA
2 Herein called the Manor and the Pavilion, respectively.
maintenance, and engineering services were provided
facilitywide, and the hospital provided lab work to the
residents of the nursing home. There was also a fairly
high degree of contact among the employees.
Although the two facilities here are not physically
contiguous, as in Child’s Hospital, and there is no ar-
gument that the two buildings constitute a single facil-
ity, we stress that they are only 100–200 feet apart and
separated by a parking lot that employees and guests
of both facilities use. We conclude that, given the
close proximity of the two facilities, there is sufficient
evidence of functional integration and of employee
interchange between the Manor and the Pavilion to re-
quire a finding that only a multifacility unit is appro-
priate. The Manor does the laundry for both facilities;
all dietary employees work under common supervision,
now preparing food for both buildings, and several di-
eticians float between the two facilities; and the pool
nurses can work at either facility. The Manor and the
Pavilion also share common labor relations and per-
sonnel policies. The Acting Regional Director’s reli-
ance on Passavant Retirement & Health Center, 313
NLRB 1216, 1218 (1994), and Catherine McAuley
Health Center, 287 NLRB 1114, 1116 (1988), to sup-
port a contrary result is misplaced, as there was no
substantial evidence or regular contact and interchange
among the employees involved in those cases.
Accordingly, the Acting Regional Director’s Deci-
sion and Direction of Election is reversed with respect
to the single-facility unit found appropriate. Moreover,
the Employer’s 12 charge nurses will be permitted to
vote under challenge in any election held, and the case
is remanded to the Regional Director for further appro-
priate action.
APPENDIX
DECISION AND DIRECTION OF ELECTION
5. The Employer, a Pennsylvania corporation, pro-
vides long-term residential health, social, counseling
and hospice services to residents at facilities located at
its main campus in Hazleton, Pennsylvania, and at
other locations in northeastern Pennsylvania. The Em-
ployer’s Saint Luke Manor and Saint Luke Pavilion fa-
cilities2 are involved in this proceeding. The Petitioner
seeks to represent the Manor’s full-time and regular
part-time nursing, dietary, housekeeping, laundry,
maintenance, and activities department employees. The
employees in these departments include licensed prac-
tical nurses (LPNs), nursing assistants (CNAs), trans-
portation aides, physical therapy aides, ward clerk, pro-
duction cooks, dietary aides, salad preparers, sanitation
aides, housekeeping aides, laundry aides, maintenance
personnel, and an activities aide. The Petitioner would
exclude the social service assistant and on-call or pool
employees at the Manor and all employees of the Pa-
vilion. If the above unit is not found to be appropriate,
the Petitioner seeks an election in a unit consisting of
full-time and regular part-time employees in the nurs-
ing department at the Manor, including LPNs, CNAs,
transportation aides, physical therapy aides and the
ward clerk. The Employer takes the position that the
only appropriate unit would include service and main-
tenance employees at the Manor and the Pavilion.
Thus, in addition to the employees sought by the Peti-
tioner, the Employer contends that drivers, porter
watchmen, the groundskeeper, a social service assist-
ant, a social service aide, and pool nursing employees
should be included. The Petitioner is willing to pro-
ceed to an election in any unit found appropriate.
The Manor, a 104-bed facility with two wings on a
single floor, opened in 1974 and provides skilled and
intermediate care to elderly residents. It also contains
a unit for residents with Alzheimer’s disease. The Pa-
vilion, a 120-bed facility, opened in 1983 and provides
skilled and intermediate care on its second and third
floors. The Pavilion’s first floor contains offices, die-
tary department space, physical therapy facilities, and
a maintenance area. The two facilities are on the same
campus and are separated by a parking lot used by em-
ployees and others.
The Employer has nine major divisions two of
which are the Manor and the Pavilion. A president-
chief executive officer reports to the Employer’s board
of directors. There are two vice presidents for program
services one of whom has responsibility for the Manor
and the Pavilion as well as three hospices. Another
vice president is responsible for advancement which
involves marketing, communication, and development
functions. A vice president is also in charge of finance
including payroll. Director of Human Services Carl
Faust is in charge of personnel matters. These individ-
uals have offices in Steigerwalt Center or in Amity
Lane which are on the Hazleton campus. They provide
centralized administration services to all divisions. The
Employer’s personnel policies and procedures are es-
tablished by its board of directors and an Employee
Handbook is centrally prepared and issued to all staff.
The record contains 19 job descriptions most of which
bear the heading ‘‘Lutheran Welfare Service’’ but do
not refer to a specific facility. Several other job de-
scriptions are for positions at ‘‘St. Luke Pavilion/St.
Luke Manor.’’ One of the job descriptions is for the
groundskeeper position and lists St. Luke Pavilion as
the facility involved. Director of Human Services Faust
testified that the administrators and/or supervisors, in
coordination with the human resources department, are
responsible for preparing job descriptions.
The Manor and the Pavilion have separate adminis-
trators, directors of nursing, assistant directors of nurs-
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Herein called the DON and ADON. At the time of the hearing
the DON position at the Pavilion was vacant and Frances Bobis, the
ADON, was in charge of the Pavilion Nursing Department. The
DON position has since been filled.
4 The parties stipulated that, with respect to the dietary employees,
the Employer and Marriott are joint employers.
ing,3 and activities directors. There is a Social Service
Manager at the Manor and a Social Service Director
at the Pavilion.
In July 1995, Environmental Services Supervisor
Lynn Walter became the head of an umbrella depart-
ment which covers laundry, housekeeping, mainte-
nance, transportation (drivers), and groundskeeping
employees for all facilities on the Hazleton campus.
Walter stations himself at the Pavilion but maintains a
second office at the Manor. The laundry is done at the
Manor. There is one laundry employee at the Pavilion
who is responsible for collecting that facility’s dirty
linen. The financial information the Employer submits
to the Commonwealth shows that the Manor charges
the Pavilion for the laundry services it provides. The
laundry employees punch timecards at their respective
facilities. The financial information for the Manor lists
no transportation equipment or salaries, whereas the
Pavilion’s information lists both. Eight maintenance
employees report to Walter. Five are stationed at the
Pavilion and are classified as maintenance employees
(two), porter watchmen (two), and a groundskeeper. Of
the two maintenance employees, one spends 99 percent
of his time at the Pavilion whereas the other one
spends 75 percent of his time at the Manor. The two
porter watchmen take out the trash for both facilities,
transport dirty laundry from the Pavilion to the Manor,
and move oxygen supplies to the resident areas within
both facilities. Of the three maintenance employees at
the Manor, two spend from 1-1/2 to 2 days per week
at the Pavilion. Two drivers also report to Walter.
These employees distribute mail to all of the facilities
on the Hazleton campus and transport residents to doc-
tor appointments and activities. The Pavilion’s ground-
skeeper maintains the areas outside all the buildings on
the campus.
Volunteer Coordinator Lois Seip and Chaplain Jo-
seph Heger provide services at both facilities. Susan
Moore is the head of the Service and Education De-
partment and has an office at the Manor and another
at the Pavilion. Moore is in charge of coordinating
mandatory and nonmandatory in-service training ses-
sions which are held at the Manor and at the Pavilion
and are jointly attended by employees from both facili-
ties. Pool employees are invited to attend all non-
mandatory educational sessions and are expected to at-
tend all mandatory in-services.
Until recently, the Employer used the kitchens in the
Manor and the Pavilion to prepare food for the resi-
dents at the respective facilities. The Employer has
now entered into a contract with Marriott Management
Services Corporation to consolidate and manage the
nutrition services for the Employer’s patients, resi-
dents, employees, visitors, and guests at the Manor and
the Pavilion. Pursuant to that contract, Marriott’s
Diane Royce has become the head of the Dietary De-
partment for the Employer’s 30 cooks and dietary staff
at both the Manor and the Pavilion,4 and she has an
office at each facility. Royce is responsible for budget-
ing and for the hiring and scheduling of all dietary
staff. Each facility has its own kitchen. One of the di-
etitians works on a part-time basis and is dedicated to
the Pavilion. The other dietitians float between the two
facilities. All dietary employees attend biweekly de-
partment meetings which, at the time of the hearing,
were being held in the Manor. Once the consolidation
of the dietary service is complete, cold foods will be
prepared at the Manor and hot foods will be prepared
at the Pavilion. The food will continue to be delivered
to residents by dietary aides at the respective facilities.
One of the production cooks from the Pavilion will
spend a portion of the day at the Manor helping in tray
line production. Royce is reducing the number of ven-
dors who will supply food to both facilities. Dietary
staff will be cross-trained with the merging of the
kitchen operations which was scheduled to occur on
September 25 after the hearing closed.
The Manor’s nursing staff includes 16 LPNs and 41
CNAs. The Pavilion’s nursing staff includes 18 LPNs
and 44 CNAs. In addition, the Employer utilizes a pool
of 20 to 30 RNs, LPNs, and CNAs to fill in for nurs-
ing employees who are absent or on vacation. The em-
ployees in the pool were trained at the Employer’s fa-
cilities and are used at the Manor and at the Pavilion.
The pool now in use was developed by the Employer’s
project management team and was administered by the
DON at the Pavilion. The pool employees receive a
slightly higher wage rate than their full-time and regu-
lar part-time counterparts. However, they receive no
benefits. They perform the same work, wear the same
uniform, and are required to attend mandatory in-serv-
ices. They are also invited to attend other educational
presentations.
When a position becomes vacant in any of the facili-
ties the administrator of that facility is notified. The
administrator sends a request for a replacement to the
Human Resources Department which posts the position
at all facilities for 10 days and lists a key person to
receive applications. The Employer may also advertise
the position in local newspapers and applications from
outside individuals will be funneled to the key person.
The advertisement will indicate which facility has the
opening. The department head conducts the initial
interviews with applicants and offers employment to
the successful candidate after consulting the human re-
sources department for salary guidelines. Only after the
889LUTHERAN WELFARE SERVICES OF NORTHEASTERN PENNSYLVANIA
5 This description of the hiring process offered by Faust differs
from the one set forth in the Employer’s Personnel Policies and Pro-
cedures Manual. According to the manual, supervision at the facility
refer certain applicants to the facility administrator who conducts an
additional interview or designates someone to do so. After these
interviews, the administrator or designee selects the successful appli-
cant.
6 Faust testified, and the Employer contends, that the generic form
is currently in use, but that form is copyrighted in 1991 whereas the
form bearing the Manor’s name was revised in March 1993.
applicant has been hired does the department head in-
troduce the new employee to the facility adminis-
trator.5 The Employer prefers to fill vacant job posi-
tions with employees from the same facility. The Em-
ployer usually tries to promote from within and em-
ployees awarded new positions at a different facility
will carry their seniority and pay increments with
them. Employees may be laterally transferred to close-
ly related positions without a wage or salary adjust-
ment. When an employee’s status changes, the super-
visor or facility administrator requiring that change
completes a report which must be approved by the
program/facility administrator and the vice president
for administration. The record contains an application
form for the Manor and another which does not list
any facility.6 Employees are evaluated after their 90-
day probationary period and again at their anniversary
date. The evaluations are completed by their depart-
ment heads and forwarded to the administrator. The
evaluation form, which is the same for all facilities, is
placed in the employees’ personnel files which are
kept only in the facility in which they work.
The record contains evidence of five permanent
transfers between the Manor and the Pavilion since
July 1991, all of which were done at the request of the
employees. Only one of these was from the Pavilion
to the Manor. Of the eight housekeeping aides sta-
tioned at the Pavilion, two work at the Manor 2 days
each week. No housekeeper from the Manor has per-
formed services at the Pavilion. As noted above, sev-
eral maintenance employees work at both the Manor
and the Pavilion although they are based at only one
of these facilities. There is a physical therapist at the
Manor and one at the Pavilion. They cover for each
other during vacations. Instances in which a nursing
employee from one facility has been asked to work at
the other facility are rare. Every sixth weekend, one of
the administrators has on-call responsibility for both
the Manor and the Pavilion.
The Manor and the Pavilion have separate budgets
which are initially prepared by the department heads in
the respective facilities and checked by their respective
administrators. The budgets, which show the salary to-
tals for employees at each facility, are forwarded to the
vice president of finance for approval. Faust makes
recommendations to the Employer’s executives con-
cerning base wage rates and benefits for all employees.
The disciplinary procedure applicable to all employees
is set forth in the handbook. Corrective counseling
starts at the supervisory level, followed by written
warning, suspension, and discharge. Oral counselings
and written warnings are reviewed by department
heads and the administrators. Suspensions or dis-
charges must be reviewed by Faust and the vice presi-
dent of the program or service involved. Similarly,
grievances are initially presented to the supervisor al-
though the employee has the option of starting with the
department head or administrator.
The Employer publishes a newsletter which is pre-
pared by the human resources department and dissemi-
nated to all employees. There are social functions
which are held for all employees and others which
have been held for employees of one facility only al-
though all staff are allowed to attend. Medical equip-
ment such as geri-chairs, wheel chairs, tube feeding
supplies, and other equipment such as televisions and
videorecorders are shared by the Manor and the Pavil-
ion. The equipment usually is transported between the
facilities by maintenance employees. The two facilities
once used different colored linens, but that practice has
ceased. Physicians have privileges at both facilities.
The facilities have separate licenses from the Depart-
ment of Health. The record shows that employees have
worn name tags that indicated the Manor or the Pavil-
ion and there may also be tags without such designa-
tion of facility. There is no history of collective bar-
gaining at either facility.
The Board reaffirmed the applicability of the rebut-
table presumption of the appropriateness of a single-fa-
cility unit in the health care industry in Manor
Healthcare Corp., 285 NLRB 224 (1987). In West Jer-
sey Health System, 293 NLRB 749, 751 (1989), the
Board stated that it would weigh the factors of geo-
graphic proximity, employee interchange and transfer,
functional integration, administrative centralization,
common supervision, and bargaining history in decid-
ing whether the presumption had been overcome. The
Board addressed the concerns underlying the congres-
sional admonition against undue proliferation of health
care bargaining units by requiring the employer to
rebut the presumption with evidence ‘‘demonstrating
that approval of the single-facility unit will threaten the
kinds of disruptions to continuity of patient care that
Congress sought to prevent.’’ Manor Healthcare, supra
at 225. The potential for adverse consequences result-
ing from a labor disruption involving the single-facility
unit was found nonexistent where two facilities offered
‘‘largely duplicative health care.’’ Children’s Hospital
of San Francisco, 312 NLRB 920, 929 (1993). Even
where an employer has an integrated system of man-
agement and centralized labor policies, unless the evi-
dence shows a ‘‘real danger that the separate bargain-
ing unit . . . will cause more work stoppages than
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In view of this finding, the drivers, groundskeeper, porter watch-
men, laundry aide and maintenance employee who spend do not
spend any or a majority of their working time at the Manor are ex-
cluded. The Pavilion maintenance employee who spends 75 percent
of his time at the Manor is a dual function employee who should
be included in the unit found appropriate herein.
would be the case with a larger unit or that it would
in any other way impede continuity of patient care’’
the presumption will not be deemed rebutted.
Mercywood Health Building, 287 NLRB 1114, 1116
(1988). Lack of interchange between employees is of
far greater significance than the fact that facilities are
located on the same campus, Passavant Retirement &
Health Center 313 NLRB 1216, 1218 (1994), and an
employer will not succeed in rebutting the presumptive
appropriateness of the single-facility unit unless it pre-
sents substantial evidence of regular contact and inter-
change between the employees involved. O’Brien Me-
morial, 308 NLRB 553, 554 (1992); Mercywood
Health Building, 287 NLRB 1114, 1116 (1988);
Manor Healthcare, supra at 228.
Based on the foregoing, I find that the Employer has
not overcome the presumption that the single-facility
unit at the Manor is an appropriate unit for the pur-
poses of collective bargaining. The facilities have sepa-
rate administrators, directors of nursing, assistant direc-
tors of nursing, and other directors or managers. The
administrator and department heads are key figures in
the day-to-day operations of each facility. Interviewing
and hiring are effectively done separately by managers
and directors of each facility. Employees are evaluated
by individuals within their respective facilities and dis-
cipline short of suspensions or discharges are handled
by the separate administrators and department heads.
Personnel files are kept at the separate facilities and
not centrally. While job vacancies are posted at all fa-
cilities and there is a policy of filling positions from
within, there is also a preference given to employees
at the facility with the vacancy. The fact that employ-
ees may fill these positions without loss of seniority is
relevant but not dispositive. Manor Healthcare, supra
at 228. The Environmental Services Department em-
ployees have a common supervisor, but they punch
separate timeclocks. While one of the Pavilion’s main-
tenance employees spends most of his time at the
Manor and two of the Manor’s maintenance employees
spend up to 2 days per week at the Pavilion, the great
majority of employees within this umbrella department
spend their time at only one facility or, like the
groundskeeper and drivers, perform duties throughout
the Hazleton campus and not just at the Manor and the
Pavilion. The dietary department is in the midst of
consolidation, but even there, the record does not show
that the dietary aides will perform their primary duty
of distributing food to residents in a manner different
from that which existed before Marriott took over
managing the kitchens. Permanent transfers between
facilities have been negligible. Deaconess Medical
Center, 314 NLRB 677 fn. 1 (1994). Common in-serv-
ices, shared social events, a single handbook and news-
letter, borrowing of equipment and a shared volunteer
coordinator and chaplain all show that the employees
have a community of interest which would make the
two-facility unit also an appropriate one, but these fac-
tors do not outweigh the other evidence set forth above
showing that the Manor’s separate identity has not
been negated. Staten Island University Hospital, 308
NLRB 58, 61 (1992). Moreover, the record contains
evidence that the identity of the Manor as a separate
facility has been preserved through advertisements for
job vacancies listing that facility, the use of some em-
ployee name tags and application forms which bear the
Manor’s name and the social functions which are held
for the Manor’s employees. Finally, for the most part,
patient care proceeds independently at the two facili-
ties. Manor Healthcare, supra at 228. Despite the pro-
jected partial merger of dietary operations (which will
nevertheless leave the two separate dietary operations
intact), and the common laundry operation, the fact re-
mains that the Manor and the Pavilion operate substan-
tially as independent entities. The Employer has not
shown that, as a result of the finding that the Manor
comprises a separate appropriate unit, continuity of
health care will ‘‘necessarily’’ be jeopardized to a
greater extent than would be the case if the two-facility
unit were found appropriate. Mercywood Health Build-
ing, supra at 1116; cf Brattleboro Retreat, 310 NLRB
615, 620–621 (1993). Based on the foregoing, I find
that a unit limited to employees at the Manor is appro-
priate.7