S.S. Joachim & Anne Residence

National Labor Relations Board - Board Decisions

Sep 19, 1994

314 N.L.R.B. 1191 (N.L.R.B. 1994)

1191
314 NLRB No. 194
S. S. JOACHIM & ANNE RESIDENCE
1 At the hearing, it was noted that Local 144, SEIU disclaimed in-
terest in representing any of the petitioned-for employees.
S. S. Joachim and Anne Residence and 1199 Na-
tional Health and Human Service Employees
Union, Petitioner. Case 29–RC–8187
September 19, 1994
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
Upon a petition for election filed under Section 9(c)
of the National Labor Relations Act, a hearing was
held on various dates in August 1993 before a duly
designated hearing officer of the National Labor Rela-
tions Board. On September 21, 1993, pursuant to Sec-
tion 102.67(h) of the Board’s Rules and Regulations,
the case was transferred to the Board for decision.
Having carefully reviewed the entire record in this
proceeding, including the Petitioner’s posthearing brief,
the Board makes the following findings:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate purposes of
the Act to assert jurisdiction.
3. The labor organization involved claims to rep-
resent certain employees of the Employer.
4. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
5. S. S. Joachim and Anne Residence, the Employer,
is a skilled nursing facility providing health care and
related services in Brooklyn, New York. On June 11,
1993, pursuant to a Stipulated Election Agreement in
Case 29–RC–8124 between the Employer, Local 1199,
Drug, Hospital, and Health Care Employees Union
a/k/a Local 1199 National Health and Human Service
Employees Union (the Petitioner), and Local 144,
Hotel, Hospital, Nursing Home and Allied Services
Union, SEIU, AFL–CIO, a representation election was
held in the following units:
Technical Unit
Included: all full-time and regular part-time tech-
nical employees, including licensed practical
nurses, physical therapy assistants, and occupa-
tional therapy assistants.
Excluded: all other employees, service and main-
tenance employees, rehabilitation nurses, clinic
coordinator, activities leader, medical records
coordinator, chef, dietitian, purchasing clerk,
bookkeepers, secretaries, patient care coordina-
tors, registered nurses, occupational therapists,
social workers, office clerical employees,
guards and supervisors, as defined by the Act.
Service and Maintenance Unit
Included: all full-time and regular part-time serv-
ice and maintenance employees including die-
tary workers, nursing assistants, orderlies, ward
clerks, porters, maids, maintenance employees,
recreation aides, rehabilitation aides, and recep-
tionists.
Excluded: all other employees, technical employ-
ees, rehabilitation nurses, clinic coordinator, ac-
tivities leader, medical records coordinator,
chef, dietitian, purchasing clerk, bookkeepers,
secretaries, patient care coordinators, registered
nurses, occupational therapists, social workers,
office clerical employees, guards and super-
visors, as defined by the Act.
As a result of the election, on June 25, 1993, the Peti-
tioner was certified as the collective-bargaining rep-
resentative of the employees in the technical unit and
the service and maintenance unit.
On July 9, 1993, the Petitioner filed the instant peti-
tion seeking to represent all full-time and regular part-
time employees employed by the Employer at its
Brooklyn facility, excluding all technical and service
and maintenance employees included in the certifi-
cation of representative in Case 29–RC–8124.1 Subse-
quently, the Petitioner filed an amended petition which
was further amended during the hearing to read:
Included: All full-time and regular part-time em-
ployees in the following positions and voting
units:
A. Professional: Dietitian, Dietary Technician,
Physical Therapist, Occupational Therapist, Reg-
istered Nurse and Social Worker.
B. Business Office Clerical (BOC): Secretary to
Administrator, Secretary to Personal Director/-
CFO, Secretary to Director of Nursing, Account
Payable Coordinator, Account Receivable Coordi-
nator, Medical Residence Coordinator and Payroll
Records Coordinator.
C. Residual Service and Maintenance: Medical
Records Coordinator, Activities Leader a/k/a Ac-
tivities Supervisor and the Chef.
D. Residual Technical: Clinic Coordinator, Re-
habilitation Nurse, Dietary Technician and the
Residence Care Coordinator.
Excluding all technical, service and maintenance
employees included in prior certification in Case
No. 29–RC–8124, and all guards and supervisors
as defined by the Act.
At the hearing, the parties stipulated that certain of
the classifications listed above should be excluded
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Employer’s motion does not appear to raise this issue with
respect to the residual service and maintenance unit. To the extent,
however, that the Employer’s arguments also apply to those peti-
tioned-for employees, we find, for the reasons discussed above, that
there is no 9(c)(3) problem with respect to the residual service and
maintenance employees.
3 At the hearing, although the Employer argued that the two full-
time RNs should be excluded as supervisors of the nurses aides, it
offered no testimony or other evidence in support of its contention.
from the petitioned-for units: the dietitian, dietary tech-
nician, clinic coordinator, and rehabilitation nurse as
supervisors within the meaning of the Act; the physical
therapist and occupational therapist as independent
contractors; and the secretary to the administrator, sec-
retary to the personnel director, and secretary to the di-
rector of nursing as confidential or managerial employ-
ees.
The parties, however, disagree as to whether certain
of the remaining classifications are appropriately in-
cluded in the above units. The Employer contends that
several of the positions listed above should be ex-
cluded as they are supervisory, confidential, and/or
managerial within the meaning of the Act. The Em-
ployer would also exclude on-call registered nurses as
casual employees and objects to the inclusion of the
social workers on the additional ground that they do
not share a community of interest with the registered
nurses. In addition, the Employer moved to dismiss the
petition in the residual technical unit, alleging that
since the Petitioner had agreed to exclude those classi-
fications from the units in the Stipulated Election
Agreement in Case 29–RC–8124, the Petitioner is pre-
cluded from seeking to represent such employees now.
The Employer’s Motion to Dismiss
At the hearing, the Employer made a motion to dis-
miss the petition with respect to the residual technical
unit because the employees sought in that unit were
also sought in the original petition filed in Case 29–
RC–8124, but ultimately excluded by the parties’ Stip-
ulated Election Agreement. The hearing officer denied
the Employer’s motion, and the parties subsequently
filed motions with the Board. The Employer argues
that Section 9(c)(3) of the Act bars an election in any
bargaining unit in which a valid election has been held
in the preceding 12 months, that it is a waste of the
Board’s resources to consider the eligibility of these
employees when the parties waived a hearing on their
eligibility in the prior proceeding, and that a prolifera-
tion of units will result from the existence of two tech-
nical units. The Petitioner argues that the stipulation
was reached between the three parties to the election
in Case 29–RC–8124 and that the Petitioner never con-
sidered or agreed not to seek those excluded positions
in a subsequent petition.
We find no merit in the Employer’s position. A new
election is barred only in a ‘‘unit or any subdivision’’
in which a previous election was held. The employees
sought by the Petitioner in the residual technical unit
are not in the bargaining unit or subdivision thereof
which voted in the prior election; they were specifi-
cally excluded. Thus, there is no 9(c)(3) problem. In-
deed, this argument was specifically rejected in Phila-
delphia Co., 84 NLRB 115 (1949), where the union
sought to represent four distinct employee classifica-
tions which the union had specifically agreed to ex-
clude in the previous election held only 6 months ear-
lier. In directing an election, the Board noted that an
election among the petitioned-for employees ‘‘would
not involve the same bargaining unit or subdivision
thereof within the meaning of Section 9(c)(3) of the
Act, as amended.’’ 84 NLRB at 116. Further, there is
no evidence the Petitioner ever expressly promised or
agreed to refrain from representing the employees.
Briggs Indiana Corp., 63 NLRB 1270 (1945). The
stipulated agreement in Case 29–RC–8124 only as-
sured the Employer that the resident care coordinators
would not participate in that election; such a stipulated
agreement has no effect on subsequent petitions. Fi-
nally, with regard to proliferation of units, as the Peti-
tioner already represents a unit of technicals, if the ma-
jority of ballots in this voting group are cast for the
Petitioner, the employees will be included in the exist-
ing technical unit. The Petitioner has not sought a sep-
arate unit of technicals nor do we find that the peti-
tioned-for technicals in this case constitute a separate
appropriate unit. Accordingly, we dismiss the Employ-
er’s motion.2
Residual Technical Unit
Resident Care Coordinator: The Employer objects
to the inclusion of the resident care coordinators
(RCCs), arguing that the RCCs are supervisors within
the meaning of the Act. The Petitioner contends that
the RCCs serve no supervisory function. Since the
record indicates that the RCCs, inter alia, assign and
direct aides and orderlies in day-to-day matters of resi-
dent care as well as ensure that these employees are
following their respective job duties, the resolution of
their status involves consideration of the Supreme
Court’s recent decision in NLRB v. Health Care & Re-
tirement Corp., 114 S.Ct. 1778 (1994). Accordingly,
the Board by its Order of August 5, 1994, severed the
technical voting group, consisting solely of the RCCs,
from the instant petition and remanded that portion of
the case to the Regional Director for the purpose of re-
opening the record with respect to the supervisory
issue and thereafter transferring the record to the Board
for decision of that issue.
Professional Unit
On-Call Registered Nurses (RNs):3 The Employer
contends that the approximately 11 on-call RNs are
1193S. S. JOACHIM & ANNE RESIDENCE
In fact, the parties stipulated that Lance Mars, the director of human
resources, could find no documentary evidence that the RNs are in-
volved in hiring, firing, or discipline. In addition, staff RN Gloria
Matteson testified without contradiction that she possessed no au-
thority to hire, discipline, discharge, promote, or authorize the trans-
fer of employees. Accordingly, we find that the staff RNs are not
supervisors within the meaning of the Act and include them in the
professional unit.
4 Although on-call RN Sima Unger only worked 101.5 hours dur-
ing this period, she did not begin working for the Employer until
July 3, 1993. At this rate, however, she would have accumulated ap-
proximately 400 hours had she been employed the full 6 months.
Consequently, she should be included in the group that has worked
200–400 hours. Compare Modern Food Market, 246 NLRB 884
(1979).
5 It is well settled that an employee’s ability to reject work when
offered and the lack of identical benefits are not determinative of an
individual’s employment status so as to exclude the individual from
the unit as a casual employee. Mid-Jefferson County Hospital, 259
NLRB 831 (1981), and the cases cited there.
casual employees and thus should be excluded from
the professional unit. The Petitioner contends that the
on-call RNs work on a regular basis and share a com-
munity of interest with the permanent RNs.
The Employer employs between 9 and 11 on-call or
per diem RNs. All of the Employer’s RNs, permanent
or on-call, have the same job description and common
supervision. Like the permanent RNs, the on-calls re-
port to the nursing office each day to receive assign-
ments as medication nurse or charge nurse. The on-call
RNs do not receive the same benefits as the full-time
employees. Several of the on-call RNs have a fixed
schedule with the Employer, working the same day or
days each week. The remaining on-call nurses hold
full-time positions at other institutions and report their
availability to Shirley Armstrong, the assistant director
of nursing (ADON), at the beginning of each month.
The ADON fills any vacancies in the facility’s daily
staffing schedule from the list of available on-call
RNs. There is no expected number of hours to be
worked by an on-call RN, and the on-call RN is free
to reject employment. The Employer has offered sev-
eral of the on-call RNs full-time employment, and one
of the on-calls, Sandra Karimpinalkummel, worked as
a full-time RN at the facility before changing to on-
call status. The Employer’s payroll records for the 6-
month period preceding the hearing, from February 13
to August 14, 1993, indicate that one on-call RN
worked as few as 84 hours, that another worked 794
hours, and that the cumulative hours worked by the re-
maining on-call RNs ranged between 200 and 400
hours.4
In determining whether on-call employees should be
included in a unit, the Board considers the similarity
of the work performed and the regularity and con-
tinuity of employment.5 Trump Taj Mahal Casino, 306
NLRB 294, 295 (1992), enfd. 2 F.3d 35 (3d Cir.
1993). With regard to the similarity of work, in the in-
stant case it is undisputed that the on-call nurses per-
form the same duties under the same conditions and
supervision as the full-time RNs. With regard to regu-
larity, the Board finds this requirement is met when an
employee has worked a substantial number of hours
within the period of employment prior to the eligibility
date. Trump, supra (citing Mid-Jefferson County Hos-
pital, supra). Under its most widely used test, the
Board has held that, absent special circumstances, an
on-call employee has sufficient regularity of employ-
ment if the employee averages 4 or more hours/week
for the last quarter prior to the eligibility date.
Davison-Paxon Co., 185 NLRB 21 (1970). In Mar-
quette General Hospital, 218 NLRB 713 (1975), the
Board utilized an eligibility formula which required
employees to have worked a minimum of 120 hours in
either of the two quarters immediately preceding the
eligibility date. The Board employed this formula be-
cause of the significant disparity in the number of
hours worked by the employer’s on-call nurses; some
worked as many as 540.5 hours per quarter, and some
as few as 23. The more restrictive formula allowed the
Board to distinguish those on-call nurses whose work
patterns more closely resemble full-time nurses from
those who worked relatively infrequently. Here, al-
though two RNs worked 84 hours and 794 hours, re-
spectively, the vast majority of the Employer’s on-call
RNs worked a substantial number of hours within a
relatively narrow range. In these circumstances, we
find the Davison-Paxon eligibility formula is more ap-
propriate. Sisters of Mercy Health Corp., 298 NLRB
483 (1990). Accordingly, the Employer’s on-call RNs
are eligible to vote if they regularly average 4 hours
or more of work per week during the quarter prior to
the eligibility date.
Social Workers: At the hearing, the Employer took
the position that social workers should be excluded
from the unit because they are in a supervisory/mana-
gerial position. The Petitioner contends that the Em-
ployer failed to establish that the social workers are su-
pervisors or managerial.
The Employer’s social services department consists
of one admissions clerk, two social workers, Nadine
Nekrewich and Sandra Defredes, and the director of
social services, Eileen Wagner. According to the job
description, the social worker assists the director of so-
cial services, assesses the social needs of residents, for-
mulates treatment plans, and follows through on estab-
lished goals. The treatment plans and goals are estab-
lished by the social worker and the director. The social
worker conducts preliminary interviews with new resi-
dents and performs quarterly reviews of residents to
monitor problems and progress.
The social workers are also involved in investiga-
tions of patient abuse. When a resident complains to
the social worker about abuse or neglect, the social
worker reports the incident to Pat Brienza, the director
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We further find that the Employer failed to establish that the so-
cial workers are managerial employees. The Board has long held that
managerial employees are those who formulate and effectuate man-
agement policies by expressing and making operative the decisions
of their employer and who have discretion in the performance of
their jobs independent of their employer’s established policies. See
Palace Laundry Dry Cleaning Corp., 75 NLRB 320, 323 (1947);
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). As discussed
above, the record shows that the social workers participate in deci-
sions regarding resident care and long-term treatment. However,
there is no record evidence that their decisionmaking involves the
formulation of management policy or that they have the discretion
to deviate from the Employer’s established policies.
The Employer also argued that the social workers should be ex-
cluded from the professional unit as they do not share a community
of interest with the RNs. However, the parties stipulated that the so-
cial workers are professional employees within the meaning of the
Act, and, based on that stipulation, they are a fortiori properly in-
cluded in the petitioned-for all professional unit. Health Care Rule,
53 Fed.Reg. 33932, 284 NLRB 1573 (1988) (an all professional unit
‘‘would obviously be appropriate’’). See also Bay St. Joseph Care
Center, 275 NLRB 1411 (1985).
7 During the hearing, or shortly before, the Employer changed the
title of this position from activities leader to activities supervisor. Al-
though the job title was changed, the nature and duties of the job
remained the same.
of nursing (DON) and then the DON and the social
worker interview the resident. The social worker
records the facts given in the interview, and gives the
report to the DON. When other staff members report
an incident of resident abuse or neglect to the DON,
the social worker is asked to participate in the inter-
view of the resident by the DON and prepare a written
report of the facts. Nekrewich testified that she some-
times makes a verbal recommendation to the DON
with respect to those cases being investigated by the
DON, such as noting that an aide’s behavior was unac-
ceptable and that the aide should ‘‘be spoken to, at the
very least.’’ After the written reports are filed, the
DON often conducts a further investigation.
Nekrewich, however, testified that she did not know
whether the DON’s investigation included interviewing
the nursing staff or supervisors. Nekrewich also testi-
fied that she has never fired or suspended any em-
ployee. The parties further stipulated that the Employ-
er’s records indicate that the two social workers never
issued any written warnings or imposed any discipline.
The social workers are not involved in hiring, and
do not have scheduling authority for the nursing staff.
The director approves vacation for the social workers,
although Nekrewich testified that, if the director was
absent, she has the authority to approve a vacation re-
quest by the other social worker or the admissions
clerk.
The social workers attend interdisciplinary meetings
along with the director, the DON, the ADON, the resi-
dent care coordinators, and the dietitian. At the meet-
ings, they discuss each resident’s plan of care. The so-
cial workers also attend the ‘‘morning report,’’ at
which the residents’ condition during the previous day
are discussed. They are also involved in bereavement
counseling, family counseling, community referrals,
and decisions regarding resident transfer and discharge.
Section 2(11) of the Act defines a supervisor as:
any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or dis-
cipline other employees, or responsibly to direct
them or to adjust their grievances, or effectively
to recommend such action, if in connection with
the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires
the use of independent judgment.
The burden of proving supervisory status is on the
party alleging that such status exists. Northcrest Nurs-
ing Home, 313 NLRB 491, 496 fn. 26 (1993). As set
forth below, we find that the Employer has failed to
meet its burden of establishing that the social workers
are supervisors within the meaning of the Act.6
It is undisputed that the social workers lack author-
ity to hire or fire employees. There is no evidence that
the social workers assign or direct the work of the
nursing staff. Nekrewich testified that if her supervisor
is absent, she has the authority to approve vacation or
leave requests. Even assuming that this authority
would render the social workers statutory supervisors,
there is no evidence that this substitution is regular or
substantial. The sporadic assumption of supervisory
duties is not sufficient to establish supervisory author-
ity. Rhode Island Hospital, 313 NLRB 343 (1993).
While the social workers are required to report in-
stances of resident neglect or abuse and to participate
in any investigations that may result from both their
reports or staff reports, their role appears limited to
preparing a written report of the facts. In most in-
stances, an even further investigation of the incident is
conducted by the DON. Although Nekrewich testified
that she may, at times, recommend disciplinary action,
there is no evidence that the DON or ADON relies on
this recommendation in disciplining an employee.
Thus, the recommendations given by the social work-
ers are not effective; instead, the record evidence
shows that the DON conducts an independent inves-
tigation. Northcrest, supra. Accordingly, we find that
the social workers are not statutory supervisors and are
properly included in the unit.
Residual Service and Maintenance Unit
Activities Supervisor:7 The Employer contends that
the activities supervisor should be excluded from the
unit as a supervisory position. The Petitioner contends
that the activities supervisor exercises no supervisory
authority.
The Employer’s activities department consists of the
director, David Alvarez, the activities supervisor, and
1195S. S. JOACHIM & ANNE RESIDENCE
8 At the hearing, the Employer alternatively contended that Weeks
should be excluded as managerial. We find no evidence that the pay-
roll coordinator formulates and effectuates management policies by
expressing and making operative the decisions of the Employer. See
fn. 6, supra, and cases cited there. The record discloses that Weeks’
primary responsibility is to prepare employee paychecks according
to the Employer’s existing practices. He does not deviate from estab-
lished policy without written instructions. When confronted with a
problem, he prepares a memo for Mars outlining the facts of the sit-
uation and the existing policy, if any, and Mars, by his own admis-
sion, makes the final decision as to what is the appropriate action.
Accordingly, we find that Weeks is not a managerial employee.
four activities aides, two full-time and two part-time.
The activities supervisor position is currently held by
Maryanne Nazario, who was promoted to that position
from activities aide. According to the job description,
the activities supervisor, under the supervision of the
director of activities, performs a variety of duties with
respect to resident’s activities programs and plans, or-
ganizes, and directs specialized recreation programs to
meet the needs of the residents.
Any requests for hiring within the activities depart-
ment are made to Mars, the director of human re-
sources. Mars arranges for an interview between the
candidate and the director of activities and, the activi-
ties supervisor, both of whom make a verbal rec-
ommendation with regard to that candidate. Mars also
interviews the candidate and makes the job offer. The
most recent hiring was approximately 3 months prior
to the hearing and before Nazario was promoted to the
position. The director of activities has the authority to
terminate and suspend employees. The Employer has
no record of any performance evaluations by the ac-
tivities supervisor and the activities supervisor has
never fired an employee. Mars testified that the activi-
ties supervisor has the authority to give verbal and
written warnings; however, there have been no inci-
dents since Nazario’s appointment. The only incident
prior to her appointment involved the voluntary termi-
nation of the former activities leader.
According to Mars, the programs administered by
the department are ‘‘pre-planned’’ so there is no need
to tell aides what to do unless there has been a change.
While the activities supervisor plans the programs, the
director tells her the number of programs that should
be arranged in each area. The director also meets with
the DON with respect to the types of programs, wheth-
er art or music, that are needed and the director com-
municates these needs to the activities supervisor.
On the basis of the record evidence, we find that the
activities supervisor has no supervisory authority. The
direction of activities aides by the activities supervisor
appears routine and requires no independent judgment
or discretion. She also exercises no independent judg-
ment or discretion in planning programs since the
number and type of each are prescribed by the direc-
tor. The activities supervisor has no authority to hire
or fire. She may participate in the interview of a job
candidate and make a verbal recommendation; how-
ever, there is no evidence that the recommendation is
relied on and Mars conducts his own independent
interview of the job candidate. Finally, although the
activities supervisor has the authority to issue a verbal
or written warning, she has never done so, nor is there
any evidence that such warnings, even if given, would
have an adverse effect on an employee’s job status or
tenure. Northcrest, supra. Accordingly, the activities
supervisor is included in the residual service and main-
tenance unit.
Business Office Clerical Unit
Payroll Coordinator: The Employer contends that
Jim Weeks, the payroll coordinator, should be ex-
cluded from the unit as a confidential employee.8 The
Petitioner contends that Weeks does not have a con-
fidential relationship with management.
Weeks has been employed at the facility since Feb-
ruary 1991. His immediate supervisor is the controller,
Maria Aymil, who also supervises the account payable
coordinator, the account receivable coordinator, and
the medical residence coordinator. His primary respon-
sibility is issuing employee paychecks based on time-
cards. Accordingly, Weeks does not make any changes
in the Employer’s payroll procedure without written
instructions. He does not attend supervisory or man-
agement meetings. He has no access to either budget
and cost estimates or to financial projections. Weeks
has access to wage and benefit information for all em-
ployees including management. A memo dated July 8,
1993, from Mars to the facility’s chief financial offi-
cer, Joseph Giacomo, requests the assistance of Weeks
in preparing payroll information requested by the Peti-
tioner for contract negotiations regarding the certified
technical and service and maintenance units. The re-
quested information is described as relating to ‘‘pay
rates and classifications.’’
Weeks submits memos to Mars, outlining specific
payroll problems such as an employee’s sick leave, ab-
sence, or overtime and the Employer’s past practice
concerning such a problem if Weeks is aware of any.
On occasion, Mars will discuss the problem with
Weeks before advising him of what action should be
taken. A memo dated June 11, 1993, from Mars to
Giacomo regarding a proposed maternity leave policy
notes that the policy is based on the recommendation
of Weeks and is ‘‘in keeping with our past practice.’’
The Board applies a narrow test in making deter-
minations as to whether an employee is ‘‘confidential’’
and will exclude an employee from a bargaining unit
as confidential only if that employee assists and acts
in a confidential capacity to persons who formulate,
determine, and effectuate management policies in the
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
field of labor relations. B. F. Goodrich Co., 115
NLRB 722 (1956); PTI Communications, 308 NLRB
918 (1992). The Board will also exclude employees
who have access to confidential information regarding
anticipated changes that may result from collective-
bargaining negotiations; however, the Board will not
exclude employees who merely have access to per-
sonnel or statistical information on which an employ-
er’s labor relations policy is based, nor will it exclude
employees with access to labor relations information
after it has become known to the union or employees
concerned. Pullman, Inc., 214 NLRB 762 (1974).
It is well settled that the party asserting confidential
status has the burden of providing evidence to support
its assertion. Intermountain Electric Assn., 277 NLRB
1 (1985). We find that the Employer has not met its
burden. While Weeks may assist Mars on occasion
with administrative determinations regarding payroll,
there is no evidence that he assists in a confidential ca-
pacity with respect to labor relations. Weeks merely
informs Mars of current problems and then implements
the action determined by Mars. Further, with regard to
contract negotiations, unlike Pullman, supra, where the
excluded employees had access to the precise terms to
which the employer would agree in a collective-bar-
gaining agreement, Weeks appears to be responsible
only for retrieving and compiling information about
current wage rates. Accordingly, we find that the pay-
roll coordinator should be included in the unit.
Appropriate Units and Voting Groups
Based on the foregoing and the parties’ stipulations,
we find that the following units are appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
Professional Unit: All full time and regular
part-time professional employees including reg-
istered nurses and social workers, but excluding
dietitian, occupational therapists, all other employ-
ees, guards and supervisors as defined by the Act.
Business Office Clerical Unit: All full time and
regular part-time business office clericals includ-
ing account payable coordinator, account receiv-
able coordinator, medical residence coordinator
and payroll records coordinator, but excluding the
secretary to the administrator, secretary to the per-
sonnel director and secretary to the director of
nursing, all other employees, guards and super-
visors as defined by the Act.
The Petitioner also seeks to represent a residual
group of service and maintenance employees—the
medical records coordinator, the activities supervisor,
and the chef. As the Petitioner is the current collective-
bargaining representative of a unit of service and main-
tenance employees, it does not seek to represent these
employees in separate units but to add the unrepre-
sented employees to its existing unit; and no other
labor organization seeks to represent them separately.
In these circumstances, the representation of the peti-
tioned-for employees can only be resolved by a self-
determination election in which the employees are
given an opportunity to express their desire with re-
spect to being included in the bargaining units already
represented by the Petitioner. Comax Telcom Corp.,
219 NLRB 688 (1975). Accordingly, we shall direct an
election in the following voting group:
Voting Group
All medical records coordinators, activities super-
visors and chefs excluding all other employees,
guards and supervisors as defined in the Act.
If a majority of the employees in this voting
group vote ‘‘YES,’’ they will be taken to have in-
dicated their desire to be included in the existing
service and maintenance employee bargaining unit
represented by the Petitioner. If not, they will be
taken to have indicated their desire to remain un-
represented.
[Direction of Election omitted from publication.]