Robinson Developmental Center

National Labor Relations Board - Board Decisions

Nov 8, 1976

226 N.L.R.B. 817 (N.L.R.B. 1976)

ROBINSON DEVELOPMENTAL CENTER
Citizen Care, Inc., d/b/a Robinson Developmental
Center and Nursing Home and Hospital Employees'
Union, Local 434, Laundry and Dry Cleaning Inter-
national Union , AFL-CIO, Petitioner . Case 6-RC-
7445
November 8, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on May 6 and 11, 1976, before
Hearing Officer Charles H. Saul. Following the hear-
ing and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Regional Director for Region 6
transferred this case to the National Labor Relations
Board for decision. Thereafter, the Employer and the
Petitioner filed briefs.
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 reviewed the Hearing Officer's rul-
ings made at the hearing and finds that no prejudi-
cial error was committed) They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
The Employer, Citizen Care, Inc., d/b/a Robinson
Developmental Center,' is a nonprofit Pennsylvania
corporation engaged in the operation of a residential
facility for the care and treatment of mentally retard-
ed and handicapped persons. The Petitioner seeks to
represent separate units of technical employees, in-
cluding licensed practical nurses and physical thera-
py aides, and service and maintenance employees,
consisting of various occupations.' Citing its connec-
tions with Polk State School and Hospital, an exempt
employer,4 as well as other relationships with the
Commonwealth of Pennsylvania, Employer asserts
that the Board should decline jurisdiction. We find
this contention meritorious.
1 The Hearing Officer precluded testimony on the issue of whether Sam
Begler's positions with the International Union of Laundry and Dry Clean-
ing Workers , AFL-CIO, and with the Commonwealth of Pennsylvania,
create a conflict of interest such that Petitioner should not be permitted to
represent the petitioned - for employees in light of our declination of,juns-
diction here , we find it unnecessary to determine if the Hearing Officer's
ruling constituted prejudicial error
2 Employer is occasionally referred to herein as the Center
3 The parties stipulated as to the appropriateness of the units sought
4 The parties stipulated that Polk State School and Hospital is not subject
to the Board 's jurisdiction.
817
The impetus behind the Center's incorporation in
1974 was the overcrowded conditions at Polk. Polk, a
state school and hospital for the residential care and
treatment of the mentally retarded, is operated by
the Pennsylvania Department of Public Welfare,'
pursuant to the Mental Health, Mental Retardation
Act of 1966.6 Concerned that the overcrowding at
Polk was affecting the quality of care, the DPW re-
quested that a separate nonprofit corporation be cre-
ated which would contract with the Department for
the maintenance and care of mentally retarded and
handicapped persons.'
At its inception in 1974, the Employer entered into
a contract with the DPW which evidences the inter-
locking relationship between the Center and Polk.
Under the contractual arrangement, all of the
Center's residents are referred by Polk.' The contract
further specifies that the number of patients referred
by Polk is not to exceed 132. Discharges are also
controlled by Polk. The only authority to discharge a
patient from the Center reposes in the superintendent
of Polk .9
Although the Employer has its own board of direc-
tors,10 it is apparent that Polk and the DPW also ex-
ercise a very substantial role in other operational
matters. For example, the Center's sole source of rev-
enue is the funding provided by the DPW in accor-
dance with the contract." The contract also estab-
lishes a fixed-cost method of financing. Payments to
the Center are limited to the actual costs incurred in
accordance with the contract's budgeted costs." The
Center thereby submits to Polk its monthly invoices
and requests reimbursement for expenditures made
during the preceding month.13
The Western Region Office of the DPW and Polk
5 Hereinafter referred to as DPW
6 Pa Rev Stat §4101, et seq (1966)
7 Polk has a capacity of approximately 1,800. For some time prior to
September 1974, its residents numbered from 2,400 to 2,800
The contract acknowledges the inadequacy of Polk 's facilities relative to
the DPW's ability "to carry out its mandated functions."
9On one occasion , the Center attempted to seek a more appropriate resi-
dential placement for one of its residents Polk and the Western Region of
the DPW interceded and stated that the Center could not act without their
approval In a letter dated February 25, 1976, the acting commissioner of
mental retardation for the DPW warned the Center 's administrator, Al
Koester, that the discharge planning for any of the Center's residents "rests
with the Superintendent of Polk since your facility is operated as an
Annex and not as a Private Nursing Home "
10 The directors can neither be appointed nor removed by the State
ii The original agreement, dated August 9, 1974, fixed a cost of
$1,782,660 for the 12 months ending August 30, 1975
12 The chairman of Employer' s board of directors, Dr Mulgrave , testified
that the Center 's expenditures cannot exceed the budget and any savings by
the Center must be relinquished to the State
13 The nexus between the Center and Polk was illustrated by an amend-
ment to their original contract , dated March 17, 1975 Because of a delay in
commencing operations in the fall of 1974, it became apparent that the
Center would not use its full budgetary appropriation for the initial term of
the contract Polk, on the other hand , had exceeded its budgetary allot-
ments As a result, $7,000, which had been allocated to the Center, was
reallocated to Polk
226 NLRB No. 117
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also supervises the Center's program and personnel
accountability. In exercising this prerogative, the
DPW regulates the preparation of the Center's bud-
getary submission. Because the Center is a line item
in the DPW's annual budget for Polk, budget deli-
berations for the Center involve representatives of
Polk and of the DPW's Western Region. Adhering to
DPW requirements, the Center's budget itemizes job
titles, the number of workers in each position, the
annual salary for each position, and the aggregate
cost. In addition, the Center is required to specify the
insured fringe benefits programs to be effective dur-
ing the contract year and the amount to be spent on
each. Only those programs approved by the DPW
and identified in the contract can be maintained by
the Center.14
It is apparent, therefore, that every cost-connected
action considered by the Employer is controlled by
the state-approved budget. For example, while the
Center has done its own hiring, it has been required
to conform to the staffing limitations of the budget.
During the 1976 budgetary deliberations," the extent
of the DPW's involvement was evidenced by its dis-
approval of the Center's request for 106 resident care
technicians, including 6 vacation substitutes.16 The
DPW denied the 6 vacation substitutes and reduced
the number of resident care technicians to 96. As a
14 Once approved , the schedule of benefits cannot be altered by Em-
plorer
1 At the time of the hearing , the proposed budget for the July I, 1976,
contract year was being considered
16 Resident care technicians constitute a majority of the employees in the
requested service and maintenance unit, which was stipulated to in this
proceeding
result, revision and resubmission of the Center's pro-
posed budget became necessary."
Based on the foregoing and the record as a whole,
we conclude that the DPW and Polk control and cir-
cumscribe the labor relations and fiscal and adminis-
trative policies of the Center to a degree which would
preclude the Employer from engaging in meaningful
collective bargaining. Rather, we are persuaded that
the Center operates essentially as an annex to Polk,"
an exempt employer under Section 2(2) of the Act,
and that it shares Polk's exempt status.19
Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
"The contract states that the Center's board of directors can make bud-
get modifications of up to 10 percent within a budget category without state
approval According to Dr Mulgrave, however, as a practical matter the
Center's capacity to reallocate moneys between budget categories is ex-
tremely limited For example, the Center could not hire additional workers
within a given job classification so as to exceed the number specified in the
contract
18 In a letter dated February 3, 1976, the acting superintendent of Polk
instructed the Center's director on the procedures to be followed when
deaths occur The letter begins "Since the residents in your facility are
considered residents of Polk but residing in an Annex " In another
letter, dated May 5, 1976, the DPW's regional director of management ser-
vices advised the Center's administrator that certain medical assistance pro-
cedures which apply to private facilities are not applicable to the Center
The letter explains that the Center is not operating as a private skilled
facility but rather "under contract as an annex to Polk State School and
Hospital "
Even the "Authorization to Operate a Facility." issued to the Center by
DPW, identifies the facility and its location as "RORINSON DEVELOPMENTAL CEN
TER-located at-Annex of Polk State School & Hospital, Clever Road, Mc-
Kees Rocks, Pennsylvania "
19 See Teledyne Economic Development Company, 223 NLRB 1040 (1976)