O'Brien Memorial

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 553 (N.L.R.B. 1992)

553
308 NLRB No. 79
O’BRIEN MEMORIAL
1 The sole issue on which review was sought is whether the Re-
gional Director correctly found that the single facility unit sought by
the Petitioner was an appropriate unit.
O’Brien Memorial, Inc. and Local 627, Service Em-
ployees International Union, AFL–CIO, Peti-
tioner. Case 8–RC–14734
August 31, 1992
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The Board has delegated its authority in this pro-
ceeding to a three-member panel, which has considered
the Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election (pertinent
portions of which are attached). The request for review
is denied as it raises no substantial issues warranting
review.1
APPENDIX
5. The following employees of the Employer constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time service and main-
tenance employees, including licensed practical nurses,
nursing aides/assistants, nursing aide coordinators, as-
sistant nursing aide coordinators, orderlies, dietary
aides, cooks, housekeepers, laundry employees, physical
therapy aides, occupational therapy aides, infection con-
trol aides, activities employees, social service employ-
ees, maintenance employees, and medical records em-
ployees, employed at the Employer’s Masury, Ohio fa-
cility but excluding all office clerical employees, ad-
ministrators, directors of nursing, dietary supervisors,
registered dieticians, aides supervisors, housekeeping
supervisors, laundry supervisors, and professional em-
ployees (including registered nurses), guards, and super-
visors as defined in the Act.
6. The Employer is an Ohio corporation engaged in the
operation of a nursing home in Masury, Ohio. The owners
of this facility, John and Dorothy Masternick, own six addi-
tional nursing homes located throughout Northeastern Ohio
and Western Pennsylvania. Another corporation owned by
the Masternicks, Windsor House, Inc., operates, manages and
administers all seven facilities.
In the instant proceeding, the Petitioner seeks to represent
a unit limited to the nonprofessional employees working at
the O’Brien Memorial facility. The Employer argues that the
only appropriate unit must include nonprofessional employ-
ees from five of the seven facilities owned by the
Masternicks: Omni Manor, Windsor C & D, O’Brien Memo-
rial, Parkside Health Care Center and Northeast Ohio Alz-
heimer’s Research Center. All five homes in question are lo-
cated within a 20 mile radius.
Windsor House, Inc. (herein Windsor House), located at
101 West Liberty, Girard, Ohio formulates policy and proce-
dure and handles accounting, bookkeeping, payroll, data
processing, education and purchasing for each of the nursing
homes in question. Windsor House has established job classi-
fications and personnel policies which are common to all of
the facilities. Windsor House also determines the wage and
benefit levels for each job classification, which is the same
at each facility. It also sets staffing requirements for all of
the facilities.
The record reveals that each home has a separate adminis-
trator, along with a director of nursing and other supervisors,
who oversee daily operations at each facility. Interviewing
and hiring is done separately at each facility, although appli-
cations may be filed at Windsor House for all seven homes.
Disciplinary actions are also carried out locally, albeit in ac-
cord with the common set of personnel policies. Windsor
House officials’ involvement in discipline appears to be lim-
ited to being consulted in unusual situations and hearing ap-
peals from aggrieved employees. The personnel manual
states that such appeals are permitted only in special cases.
There is no evidence that Windsor House is involved in
minor disciplinary matters. While, as noted above, Windsor
House sets staffing levels, the individual homes handle their
own scheduling and any changes thereto. Employee training
is handled both locally, at the separate homes, and in some
group meetings involving employees of several homes, de-
pending upon the type of training involved.
With regard to employee interchange among the five fa-
cilities, the Employer submitted a list reportedly showing
employee transfers occurring since 1989. It is admitted that
one of the alleged transfers involved a supervisor, not an em-
ployee. There is insufficient supporting documentation to en-
able me to ascertain completely which of these were actual
transfers, as opposed to quits and rehires. The Employer ad-
mits that some of these examples fall into the latter category.
Also, the vast majority of the 27 occasions set forth on said
list involved transfers between Windsor C & D and its sister
facility, Omni Manor, which presents a special situation I
will discuss at greater length herein. There is no evidence of
temporary interchange between nonsupervisory employees of
those facilities, although administrators have substituted for
each other on occasion.
Finally, there is little evidence of employee contact among
the facilities. The record indicated that employees from all
of the nursing homes attended a Christmas party in 1990, but
none was held in 1991. There is no evidence of contact on
a daily or even weekly basis.
The Board has consistently found a single-facility unit to
be presumptively appropriate when there is no history of
multi-facility bargaining and the degree of functional integra-
tion with other facilities is not sufficient to destroy the sepa-
rate identity of the facility that the union seeks to represent.
Samaritan Health Services, Inc., 238 NLRB 629 (1978); Na-
tional G. South, Inc., 230 NLRB 976 (1977); and Saint An-
thony Center, 220 NLRB 1009 (1975). The Board’s tradi-
tional approach in applying a rebuttable presumption that sin-
gle-facility units are appropriate in the health care industry
was reaffirmed in Manor Healthcare Corp., 285 NLRB 224
(1987).
I have considered the arguments submitted by the Em-
ployer in support of its multi-facility unit argument, but find
them to be unpersuasive. In Manor Healthcare Corp., supra,
the Board made clear that even where several facilities are
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
physically close together and operated under administrative
centralization, with uniform policies for all employees, this
would not suffice to refute the single facility unit presump-
tion in the health care field. Manor Healthcare Corp., supra
and Mercywood Health Building, 287 NLRB 1114, 1116
(1988), establish that there must be substantial evidence of
regular contact and interchange between the employees of
different facilities for a Petitioner’s desire for a single-facility
unit to be rejected. Such is not the case in the instant matter.
As I noted earlier, there is little or no regular contact be-
tween employees of the five facilities. As also noted, many
of the alleged transfers involved something less than actual
movement of employees directly from one facility to the
other. Further, of the 27 examples of transfers noted in the
record, all but eight involved movement between Windsor C
& D and Omni Manor. In my January 31, 1991 decision,
Omni Manor, Inc., Windsor House C & D, Case No. 8–RC–
14422 I dealt with the issue of whether the nonprofessional
employees of Windsor C & D were alone an appropriate unit
or, as was then argued by the employer, the employees of
Omni Manor must also be included. On record evidence
nearly identical to this, I found the petitioned-for unit to be
appropriate. I noted therein, in considering evidence of al-
leged transfers between Windsor House and Omni Manor
nearly identical to that submitted in this case that these ex-
amples included employees, who after a break in service of
one month to four years, sought re-employment at the other
facility. Having found this evidence unpersuasive then, I find
it no more compelling now. This is particularly true as the
number of actual transfers is quite minimal considering they
occurred over a three year period and that hundreds of em-
ployees have worked at these facilities during that time.
I have considered, but find distinguishable, Board cases
supporting multi-facility units which the Employer cited in
its post-hearing brief. In each of the cited cases, there was
far greater evidence of employee interchange and centralized
control of labor relations than in the instant matter. In West
Jersey Health System, 293 NLRB 749 (1989), which in-
volved four acute care facilities, the Board found a multi-fa-
cility health care unit to be appropriate. However, in that
case the degree of employee interchange was more substan-
tial than here, e.g., 147 permanent transfers of employees and
supervisors and the regular rotation of 250 other employees
in a 14-month period. In addition, job openings were posted
on a system-wide basis, and employees could bump other
employees at other divisions based on seniority, factors not
present in this case. In Presbyterian/St. Luke’s Medical Cen-
ter, 289 NLRB 249 (1988), the Board also found a multi-
facility health care unit to be appropriate. However, in that
case there was significant contact and interchange of employ-
ees among the three facilities. Some employees floated
among the facilities and other employees could cover for
each other on the same job at the other facilities. In addition
job openings were posted system-wide. Further, the Board
expressly stated therein that, due to a remand from a Court
of Appeals, it did not apply its single-facility presumption in
reaching this decision. Id. at p. 251, footnote 5.
In the present case, although there is a certain degree of
administrative centralization, there is little, if any, functional
integration. Patient care proceeds independently at each facil-
ity, and all day-to-day matters are administered within the
separate facilities, albeit under the guidelines established by
Windsor. There is relatively infrequent contact between the
facilities. Finally, there is no bargaining history, other than
my earlier finding that the Omni C & D employees con-
stituted an appropriate separate unit.
Based on the foregoing and the record as a whole, I find
that the Employer has failed to rebut the presumption that the
single-facility unit petitioned-for is an appropriate unit. Ac-
cordingly, I shall direct an election in the single-facility unit.