Passavant Retirement and Health Center

National Labor Relations Board - Board Decisions

May 13, 1994

313 N.L.R.B. 1216 (N.L.R.B. 1994)

1216
313 NLRB No. 215
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Passavant Retirement and Health Center, Inc. and
General Teamsters Local Union No. 538 affili-
ated with International Brotherhood of Team-
sters, AFL–CIO, Petitioner. Case 6–UC–337
May 13, 1994
DECISION ON REVIEW AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
The Petitioner filed a petition under Section 9(b) of
the National Labor Relations Act to clarify an existing
nonprofessional unit by including within it resident co-
ordinators employed by the Employer at a separate fa-
cility. On September 2, 1993, the Regional Director for
Region 6 issued a Decision, Order and Clarification of
Bargaining Unit in which he found that the resident
coordinators should be accreted to the existing unit,
and denied the Employer’s motion to dismiss the peti-
tion. In accordance with Section 102.67 of the Board’s
Rules and Regulations, the Employer filed a timely re-
quest for review of the Regional Director’s Decision,
Order and Clarification of Bargaining Unit. The Union
filed a letter in opposition. By order dated November
26, 1993, the Employer’s request for review was grant-
ed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record in this
case, including the briefs on review, and has decided,
for the reasons set forth below, to reverse the Regional
Director’s decision and dismiss the unit clarification
petition on the ground that the employees sought to be
accreted constitute a separate appropriate unit.
The Employer, a division of Lutheran Affiliated
Services (LAS), provides retirement and health care
services at its facilities located on a 42-acre campus in
Zelienople, Pennsylvania. LAS provides the Employer
with management services in such areas as human re-
sources, marketing, fiscal services, general administra-
tion, planning and development, and management in-
formation systems.
The campus consists of a 159-bed skilled nursing
unit with 78 adjoining assisted living units (Main
Building), a 77-unit independent living facility
(Wittenberg Place), a low-income facility (Luther
Court), 130 independent living cottages, and a new 92-
unit assisted living facility (Newhaven Court).
The Petitioner currently represents the nurses aides,
resident assistants, podiatry aide, and rehabilitation as-
sistants employed at the Main Building. The Petitioner
does not represent employees employed at any other
campus facility. The Petitioner now seeks to clarify the
existing unit by adding the eight resident coordinators
employed at the Employer’s newest facility, Newhaven
Court.
Newhaven Court is approximately 300 yards from
the Main Building and is comprised of 17 ‘‘neighbor-
hoods,’’ each having 4 to 6 apartments clustered
around a common living room. Each apartment con-
sists of a bedroom, kitchen, and bathroom. Newhaven
Court residents also have exclusive access to a dining
room, library, beauty and barber shop, spa, laundry
room, and activities center. Like other residents on
campus, Newhaven Court residents can utilize the
medical, dental, rehabilitative, and podiatry services of-
fered in the Main Building. Maintenance, transpor-
tation, and security services are provided by the Em-
ployer. Newhaven Court has its own financing and
budget.
At the Main Building, the Employer employs about
50 to 65 nurses aides, 5 to 10 resident assistants, 1 po-
diatry aide, and 1 rehabilitation assistant, all of whom
are represented by the Union. The podiatry aide reports
to Clinic Director Linda Eiler and the rehabilitation as-
sistant reports to Director of Nursing Bernie Mehno.
The nurses aides work in the skilled nursing unit and
report through nursing supervisors to Mehno. The
nurses aides perform direct hands-on patient care such
as feeding, bathing, and toileting residents.
Resident assistants work in the assisted living units
in the Main Building. They are classified under the
Clinic Department and report through licensed prac-
tical nurses to Clinic Director Eiler. Like the nurses
aides in the skilled nursing unit, resident assistants are
required to be certified nurses aides. When staffing
needs require, nurses aides fill in for resident assistants
in the assisted living units.
Resident assistants are responsible for assisting resi-
dents with activities of daily living such as dressing,
undressing, and showering; escorting residents to var-
ious appointments, activities, or meals; reminding resi-
dents of appointments and activities; insuring that resi-
dents do not wander off; passing out medications; per-
forming treatments such as foot soaks; assisting with
whirlpool baths; taking vital signs if medically re-
quired; and completing documentation of medications,
treatments, and incidents. With regard to whirlpool
baths, the resident assistants operate a hydraulic lift
chair to lift the residents in and out of the bath. A resi-
dent assistant spends approximately 30 to 45 minutes
on each shift passing out medications.
Nurses aides and resident assistants attend quarterly
meetings with Director of Nursing Mehno, and resident
assistants attend monthly meetings with Clinic Director
Eiler. Nurses aides and resident assistants wear a uni-
form and receive wages and benefits in accordance
with the current collective-bargaining agreement, in-
cluding coverage under the Union’s health and welfare
1217PASSAVANT RETIREMENT & HEALTH CENTER
1 Pratt also has direct responsibility for Wittenberg Place and 130
independent living cottages.
plan. All employees in the LAS system are provided
coverage under LAS’ corporatewide retirement plan.
Nurses aides and resident assistants are hired by Di-
rector of Nursing Mehno, with input by Clinic Director
Eiler on the hiring of resident assistants. Requests for
leave are made to Mehno and Nursing Supervisor Ruth
Jerome. Nurses aides and resident assistants take their
breaks in the staff cafeteria and breakrooms in the
Main Building.
The resident coordinators sought to be included in
the unit are employed at Newhaven Court, the new as-
sisted living facility which opened February 16, 1993.
At the time of the hearing there were 67 residents at
Newhaven Court, 10 of whom transferred from other
facilities on campus. Likewise, some residents have
transferred from Newhaven Court to the skilled nurs-
ing unit in the Main Building.
Newhaven Court has the following staffing sched-
ule: three to five resident coordinators and one LPN
work 7 a.m. to 3 p.m., two resident coordinators and
one LPN work 3 to 11 p.m., and two resident coordi-
nators and one LPN work 11 p.m. to 7 a.m. Program
Director Scholle, a registered nurse, works 8 a.m. to 6
p.m. Each resident coordinator is responsible for ap-
proximately 10 residents.
The role of the resident coordinator is to encourage
residents to be as independent as possible. To this end,
the resident coordinators provide encouragement and
coaching to the residents rather than traditional hands-
on nursing care. Unlike the nurses aides and resident
assistants at the Main Building, resident coordinators
are not required to be certified nurses aides. If nec-
essary, they provide assistance to residents in dressing,
showering, or other daily tasks, and occasionally escort
residents to appointments, activities, and meals. Be-
cause Newhaven Court residents do not require assist-
ance in eating, resident coordinators are generally
available to help serve and clean up. Similarly, instead
of making rounds to pass out medications, resident co-
ordinators remind residents to take their own medica-
tions. Although resident coordinators accompany resi-
dents to the spa, they do not lift or bathe residents as
is the practice in the Main Building. Resident coordi-
nators also participate in recreational activities, lead
weekly group discussions about diet and exercise, and,
according to Resident Coordinator Jerry Lee Snyder,
they spend more than 50 percent of their time socializ-
ing with residents.
Program Manager Barbara Scholle is completely re-
sponsible for the day-to-day operations at Newhaven
Court. She directly supervises the resident coordina-
tors’ daily activities, prepares the schedule, and takes
all requests for leave. Scholle may be contacted at
home for any nonmedical problems that arise in her
absence; any medical emergencies that arise in her ab-
sence are reported to the nursing supervisor in the
Main Building. Scholle reports to Director of Clinical
Services Millie Fincke for programming matters, and
to Executive Director William Pratt1 for fiscal and ad-
ministrative matters.
Scholle independently evaluates the resident coordi-
nators and determines discipline when necessary. In
one instance, Scholle decided to terminate a resident
coordinator who was not where she should have been
at the time of an emergency. Although Scholle talked
to Executive Director Bill Pratt and Director of Clini-
cal Services Fincke before terminating the employee,
she testified that she did so only to insure that she was
following the Company’s personnel rules.
Scholle interviews and hires the resident coordina-
tors. Although Scholle testified that she informed
Fincke of the applicants she intended to hire, the
record does not show that Fincke independently re-
viewed the qualifications of the applicants or rejected
any of Scholle’s selections. Job openings are posted
throughout the LAS system, including the Employer’s
Main Building, and advertised in community news-
papers. Employees of LAS-managed facilities are
granted interviews with Scholle. Of the six employees
from the Main Building who applied for resident coor-
dinator positions, two were hired. Both of these em-
ployees maintained the seniority and wage rates they
received at the Main Building. Despite the hiring of
two former nurses aides, Scholle stressed that nursing
experience was not a prerequisite for the resident coor-
dinator position, particularly in light of Newhaven
Court’s philosophy of ‘‘coaching’’ residents to be
independent rather than providing hands-on nursing
care.
Scholle conducts monthly meetings for all
Newhaven Court staff and separate monthly meetings
for the resident coordinators and LPNs. Resident coor-
dinators do not wear a uniform, although they are en-
couraged to wear dark skirts or slacks and light-col-
ored tops. Their wages and benefits are established by
LAS’ corporate policy, and they are covered by LAS’
retirement plan and Blue Cross insurance.
In addition to the resident coordinators, Newhaven
Court employs an activities director, nine dietary em-
ployees, and three housekeepers. Dietary and house-
keeping employees are hired by Scholle in conjunction
with the heads of the Employer’s dietary and environ-
mental services departments. Scheduling for these em-
ployees and leave requests are handled by their respec-
tive department heads.
The Regional Director found that resident coordina-
tors should be accreted to the unit. He found that the
Employer maintains a functionally integrated retire-
ment community offering a full continuum of health
care to its residents through which they can move as
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Contrary to the Regional Director, we accord little weight to the
fact that two bargaining unit employees were permanently trans-
ferred to Newhaven Court when it opened. See Renzetti’s Market,
238 NLRB 174, 175 fn. 8 (1978).
their personal or medical needs require, and that
Newhaven Court is merely a component part of that
larger community. He found that Newhaven Court is
dependent on LAS and the Employer for management
services such as human resources, marketing develop-
ment, fiscal services, general administration, planning
and development, and services such as maintenance,
laundry, transportation, and security. The Regional Di-
rector also cited the Employer’s involvement in the
hiring of dietary and housekeeping employees for
Newhaven Court, and its scheduling of those employ-
ees. The Regional Director explained that the func-
tional integration of the campus facilities diminishes
the significance of the lack of regular interchange be-
tween resident coordinators and unit employees.
The Regional Director further found that the job du-
ties and functions of resident assistants and resident
coordinators are substantially similar. He noted that
both groups of employees have cared for some of the
same residents, and that two of the eight resident coor-
dinators were formerly nurses aides in the Main Build-
ing. In addition, the Regional Director found that the
unit employees and resident coordinators have com-
parable wages and benefits, common upper-level su-
pervision (director of clinical services), and close geo-
graphic proximity. Based on these factors, the Re-
gional Director concluded that the resident coordina-
tors should be accreted to the existing unit.
In its request for review, the Employer contends that
the Petitioner has not rebutted the Board’s longstand-
ing presumption that a single facility unit is appro-
priate. In support, the Employer states that Newhaven
Court is a separate, distinct facility with its own em-
ployees, budget, purchases, food preparation, and sepa-
rate location at least 300 yards from the Main Build-
ing. The Employer further contends that there is a total
absence of employee interchange between the two fa-
cilities, lack of common supervision, and that the two
groups of employees have different skills, duties, and
terms and conditions of employment.
The Board has followed a restrictive policy in find-
ing accretions to existing units because employees
accreted to such units are not accorded a self-deter-
mination election, and the Board seeks to insure the
employees’ rights to determine their own bargaining
representative. Compact Video Services, 284 NLRB
117, 119 (1987). Further, ‘‘[i]t is well settled that the
doctrine of accretion will not be applied where the em-
ployee group sought to be added to an established bar-
gaining unit is so composed that it may separately con-
stitute an appropriate bargaining unit.’’ Hershey Foods
Corp., 208 NLRB 452, 458 (1974), enfd. 506 F.2d
1052 (3d Cir. 1974).
The Board has consistently held that a single facility
unit geographically separated from other facilities op-
erated by the same employer is presumptively appro-
priate even though a broader unit might also be appro-
priate. Manor Healthcare Corp., 285 NLRB 224, 225
(1987). This presumption may be rebutted by a show-
ing that the additional employees have little or no sep-
arate group identity and thus cannot be considered to
be a separate appropriate unit, and that the additional
employees share an overwhelming community of inter-
est with the preexisting unit to which they are
accreted. Safeway Stores, 256 NLRB 918 (1981). In
determining whether the presumption has been rebut-
ted, the Board examines such factors as central control
over daily operations and labor relations, including the
extent of local autonomy; similarity of employee skills,
functions, and working conditions; degree of employee
interchange; common supervision; distance between lo-
cations; and bargaining history. Mercy Health Services,
311 NLRB 367 (1993); Compact Video Services,
supra. The Board has identified the degree of inter-
change and separate supervision as particularly impor-
tant factors in determining whether an accretion is war-
ranted. Towne Ford Sales, 270 NLRB 311, 311–312
(1984), affd. sub nom. Machinists Local 1414 v.
NLRB, 759 F.2d 1477 (9th Cir. 1985).
Although Newhaven Court is located on the same
campus as the Main Building and other Employer fa-
cilities, we find that Newhaven Court, rather than all
of the buildings on the campus, constitutes a ‘‘single
facility’’ for purposes of applying the presumption. See
Mercywood Health Building, 287 NLRB 1114 (1988),
enf. denied sub nom. NLRB v. McAuley Health Center,
885 F.2d 341 (6th Cir. 1989). As noted above,
Newhaven Court is a separate and distinct assisted liv-
ing facility 300 yards away from the Main Building
with its own residents and staff. Because Newhaven
Court is a separate facility, we find that a unit of resi-
dent coordinators at Newhaven Court is presumptively
appropriate.
We further find that the Petitioner has not rebutted
this presumption. In so finding, we rely particularly on
Program Manager Scholle’s degree of autonomy re-
flected in her day-to-day direction of the Newhaven
Court employees. In addition, it is undisputed that
there is no regular interchange or contact among em-
ployees at the two facilities,2 and that the two groups
of employees do not share any immediate supervisors.
The absence of employee interchange and the lack of
common immediate supervision are ‘‘especially impor-
tant’’ factors militating against a finding of accretion.
Towne Ford Sales, supra, 270 NLRB at 311.
In this regard, we disagree with the significance ac-
corded by the Regional Director to the fact that both
groups of employees have common upper-level super-
1219PASSAVANT RETIREMENT & HEALTH CENTER
vision. The resident coordinators are hired, evaluated,
and independently supervised by Program Director
Scholle, but the employees at the Main Building report
directly to charge nurses and RN supervisors. Scholle
is solely responsible for the hiring and disciplining of
resident coordinators. There is no evidence that any
upper-level manager reviews Scholle’s hiring or dis-
ciplinary decisions, or that they have ever reversed her
personnel decisions. Indeed, the record shows that
Scholle reports to Fincke only with regard to program-
ming matters and to insure that she is following
corporatewide policies. Thus, it is Scholle, and not
upper-level management, who exercises the day-to-day
control and supervision of matters of interest to the
resident coordinators.
We also note that resident coordinators, unlike the
employees in the Main Building, are not required to be
certified nurses aides and do not attend regular in-serv-
ice training sessions. As noted above, resident coordi-
nators do not provide the same level of hands-on nurs-
ing care to residents as do the unit employees. Thus,
we disagree with the Regional Director’s finding that
the job functions of the resident coordinators and resi-
dent assistants are substantially similar.
Although we agree with the Regional Director that
Newhaven Court’s geographical proximity to, and inte-
gration with, the Employer’s other campus facilities
are factors favoring accretion, in our view they are
outweighed by the factors of substantial local auton-
omy, separate daily supervision, lack of interchange,
and differences in skills and job duties. Under these
circumstances, we find that the Petitioner has not re-
butted the presumption that a single facility unit at
Newhaven Court is appropriate. Staten Island Univer-
sity Hospital, 308 NLRB 58 (1992). We further find
Mercy Health Services, supra, cited by the Regional
Director, distinguishable. There, the Board found that
the single facility presumption was rebutted where
there was evidence of common day-to-day supervision,
significant employee interchange between the facilities,
and daily telephone contact. The record here reveals
that there is no common day-to-day supervision, inter-
change, or daily contact between the resident coordina-
tors at Newhaven Court and the unit employees at the
Main Building. Accordingly, we grant the Employer’s
motion to dismiss the petition.
ORDER
The petition is dismissed.