SODAT, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1327 (N.L.R.B. 1975)

SODAT, INC. 1327
SODAT, Inc., Employer /Petitioner and American
Federation of State , County and Municipal Em-
ployees Council 29, AFL-CIO. Cases 7-RM-1002
and 7-RM-1003
June 30, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held on December 30 and 31, 1974, at
Flint, Michigan, before Hearing Officer Kenneth D.
Meadows. After the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Regional
Director for Region 7 issued an order transferring the
case to the Board for decision. Thereafter, the
Employer and the Union filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer, SODAT, Inc. (Services To
Overcome Drug Abuses Among Teenagers), is a
Michigan nonprofit private corporation, organized to
rehabilitate drug abusers. It provides free counseling
at three locations as an out-patient therapy service to
individuals suffering from drug and alcohol abuse.
Its clients , ranging in age from teenagers to persons
in their fifties, come from the Greater Metropolitan
Flint, Michigan, area and are referred by the
criminal justice system or through a social agency or
institution , or are voluntary "walk-ins."
The Employer's counseling services are carried out
by a staff of unit directors, therapists, counselors
(sometimes referred to as cocounselors or paraprofes-
sionals), and a clinical administrative assistant who is
a clinical psychologist. Counseling consists of indi-
vidual and group therapy sessions lasting from a few
weeks to 2 years. Excepting x-rays, urinalyses, and
blood tests which are donated by county health
services or by private doctors, the Employer does not
provide any medical services as such.
i Public Law 93-360, July 26, 1974
s SODATs gross income exceeds the $250,000 jurisdictional standard set
for employers under Sec 2(14), other than nursing homes and visiting
nurses associations East Oakland Community Health Alliance, Inc, 218
218 NLRB No. 202
The Employer contends that it is a "health care
institution" under the new Section 2(14) of the
National Labor Relations Act, which was amended
effective August 25, 1974, to enlarge the Board's
jurisdiction in the health care field to include: i
Any hospital, convalescent hospital, health main-
tenance organization, health clinic, nursing home,
extended care facility, or other institution devoted
to the care of sick, infirm, or aged person.
An examination of this legislation and its legisla-
tive history shows clearly that Congress intended that
the National Labor Relations Act and its underlying
policies be extended to medical care facilities whose
activities have a substantial impact on commerce.
The facts in the instant case show that most of the
Employer's mcome comes from a Federal grant from
the Department of Health, Education and Welfare
(National Institute of Mental Health) which provides
funds over an 8-year period which began in 1971 and
extends through 1979. In each year of the grant's
existence, the Employer prepares a proposed budget
which is submitted to HEW. The budget is then
approved and an amount of money is awarded the
Employer for its use during the next fiscal year. The
Employer then draws against this fund throughout
the year. Any moneys appropriated and not used
during a particular fiscal year are set aside to
accumulate, with the possibility of extending the
grant for a ninth year. Each Federal grant is
conditioned upon the applicant's matching contrib-
ution, in a proportionate amount, of donated local
funds or services.
Thus, the record shows that in fiscal year 1973-74
SODAT was awarded approximately $500,000, of
which it utilized approximately $300,000. During this
period it also received some $11 ,000 of local money
in the form of private contributions. The record also
shows that at the same time SODAT had out-of-state
expenditures totaling approximately $9,000. These
expenditures were for insurance, office equipment,
and travel. Up to the date of the hearing, SODAT
had received $275,000 from HEW for the current
fiscal year. As the Employer's annual gross income
exceeds the discretionary standard we have set for
health care institutions, we find that the impact of
the Employer's operations on commerce is sufficient
to warrant assertion of jurisdiction herein and it will
effectuate the purposes of the Act to do so.2
2. The labor organization involved claims to
represent certain employees of the Employer.
NLRB 1270 ( 1975) (Member Fanning concurring and dissenting in part).
He would apply a $100,000 standard to all health care facilities , except
hospitals.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. As to the appropriate unit, there were two
separate petitions filed by the Employer, one for a
professional unit consisting of therapists and
counselors and the other for a nonprofessional unit
(clericals). The Union contends, however, that only
an overall unit of therapists, counselors, unit direc-
tors, and clericals is appropriate. Both parties agree
that any appropriate unit or units should encompass
all three of the Employer's locations.
The Employer employs approximately 20 employ-
ees in various job classifications. Besides the clinical
staff positions listed above, the Employer also
employs a project director, an administrative assist-
ant managerial, an executive secretary, and several
secretaries and a receptionist.3
All full-time employees enjoy the same fringe
benefits including unemployment insurance, work-
men's compensation, retirement annuity plan, and
health insurance, and are covered by the same sick
leave and vacation policy. There is daily contact
among all employees at each location, some shifting
of employees from one location to another as may be
needed, and it appears that the existence of the three
locations is primarily for the convenience of the
Employer's patients. The record shows not only that
all employees work closely together in performing
their own jobs, but also that they share various
maintenance duties, which tasks are expected to be
performed by clerical and clinical staff alike. In view
of the above, and as no union seeks to represent any
of the employees in a different unit, we find that a
single unit of all employees at the three locations of
the Employer is appropriate.
There remains for consideration the issue of
whether unit directors, therapists, and counselors are
professional employees 4s colntended by the Employ-
er.
The facts show that counselors are generally
former patients who are hired on the basis of their
ability to be empathetic to the problems of drug
users. They receive rio other special training and are
usually working in the program as part of their own
rehabilitation. Such employees are not considered
technicals, much less professionals.4
With respect to the therapists, we note that the
Employer's job description lists counselors and
therapists together as to qualifications and functions.
3 The parties stipulated , and we find, that the project director and
administrative assistant managerial should be excluded from any unit found
app{opnate as managerial employees , and that the executive secretary
should be excluded #s 'a confidential employee
I Mount Airy Foundation , d/b/a Mount Airy Psychiatric Center, 217
NLRB No 137 (1975)
According to this document therapists are only
required to have a B.A. degree and/or 2 years of
related experience, plus an ability to relate well to
people, especially drug users, and to communicate
well both verbally and in writing. Although testimo-
ny in the record indicates that the Employer does, in
fact, require therapists to have a college degree, the
evidence does not otherwise support a finding that
they qualify as professionals under the criteria
established in Section 2(12) of the Act. Thus,
therapists function mainly as representatives of the
clinical 'staff in group therapy sessions and as liaisons
between clients and outside groups such as schools,
businesses, and the various agencies of the criminal
justice system. It appears from the record that the
unit directors 5 are primarily responsible, on the staff
level, for planning and design of therapy programs,
as well as their evaluation; whereas therapists
function as group leaders and monitors of a group's
progress.
Therefore, although the work of a therapist is
basically mental, we find that it is more of a routine
nature, as opposed to the intellectual and varied
work involving the consistent exercise of discretion
and judgment which is determinative of a profession-
al. Accordingly, we find therapists are not profes-
sionals within the meaning of the Act.
A final question remains as to the inclusion of the
administrative assistant clinical, who the Employer
contends is a supervisor. The evidence shows that
this individual is a doctor of clinical psychology
whose duties are as a consultant with respect to the
treatment of individual clients. There is no evidence
that he performs any of the duties of a supervisor.
Inasmuch as we find him to be a professional
employee, we shall direct that he be allowed to vote
separately, with an opportunity to indicate his desire
to be represented in a unit with nonprofessional
employees, as well as his desire to be represented by
the Union.
In accordance with the above findings and the
record as a whole, we find that a unit of all full-time
and regular part-time employees, excluding manage-
rial employees and supervisors as defined in the Act,
constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act. However, this unit includes a
professional employee and nonprofessional employ-
ees, which the Board cannot join in a single unit
without the desires of the professional employee
being determined in a separate vote.
5 Although the Union seeks to include the two unit directors in the
overall unit, the Employer contends that they should be excluded as
supervisors. Inasmuch as the record is inadequate to make a final
determination on this question, we shall order that the unit directors be
allowed to vote subject to challenge
SODAT, INC. 1329
We shall direct that a separate ballot be used for
recording the vote of the employee classified as the
administrative assistant clinical , which will ask two
questions:
1. Do you wish to be included in the same
unit as other employees employed by the Employ-
er at its Flint , Grand Blanc , and Lapeer,
Michigan , facilities for the purposes of collective
bargaining?
2. Do you desire to be represented for the
purposes of collective bargaining by American
Federation of State , County and Municipal
Employees Council 29 , AFL-CIO?
If the professional employee votes yes to the first
question , indicating his desire to be included in a unit
with the nonprofessional employees , he will be so
included . His vote on the second question will then
be counted with the votes of the nonprofessional
employees voting in the overall unit to decide the
representative for that bargaining unit. If, on the
other hand, he does not vote for inclusion, his vote
will not be counted.
Accordingly, we find the following unit to be
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees
[unit directors,6 therapists, counselors (cocoun-
selors or paraprofessionals), secretaries, and
receptionists] employed at the Employer's Flint,
Grand Blanc, and Lapeer, Michigan, facilities,
excluding managerial employees, guards, and
supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
6 These employees shall vote subject to challenge as supervisors, supra,
fn. 4