Trailback, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1975

221 N.L.R.B. 527 (N.L.R.B. 1975)

TRAILBACK, INC. 527
Trailback, Inc.' and Hospital and Service Employees
Union, Local 399, Service Employees International
Union, AFL-CIO,' Petitioner. Case 21-RC-14169
November 19, 1975
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Minoru N.
Hayashi. Following the hearing and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director for Region 21 issued an order transferring
this case to the Board for decision. Thereafter, the
Employer and the Petitioner filed briefs in support of
their respective positions.
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, including the
briefs filed herein, the Board finds:
1. The Employer operates Trailback Lodge, a
private, nonprofit, residential treatment facility
whose function is the care and treatment of emotion-
ally disturbed adolescents with drug related prob-
lems. The Employer, is licensed by the State of
California as a skilled nursing facility and provides
24-hour skilled nursing care and medical, psychiatric,
psychological,, and social work services for its
residents. The Employer is licensed for 50 beds, and,
at the time of the hearing, 40 beds were in operation.
Approximately 80 to, 85 percent of the residents are
placed in the facility by either probation departments
or welfare departments.
Every resident or patient who is admitted is
required to be diagnosed by a licensed physician as
requiring the services provided by the Employer. The
physician is responsible for developing a treatment
plan and for providing the attendant medical
services. The physician is required to review the
treatment plan at least monthly and must make a
discharge when appropriate. The medical director
comes to the facility 3 ^ or 4 days a week and provides
for the physical care and supervises the emotional
care of the residents as required. He provides' the
services on a fee-for-service basis. In addition,
licensed clinical psychologists and psychiatrists are
available on a regularly, scheduled basis to provide
services as part of the treatment. Three registered
staff nurses are employed to provide nursing services
to the residents; these include the director of nurses,
who works full time, and two part-time nurses.
Nursing care is provided for a total of 76 hours per
week.
Trailback Lodge is composed of one single-story
building which is divided into four wings. Each wing
houses from 8 to 12 residents, and the number of
child care counselors, including the wing director,
totals 3 or 4 per wing. Counselors work on a three-
shift basis and care is provided 24 hours a day, 7
days a week. The child care counselors function as
surrogate parents for the residents and supervise the
daily living situation of all wing residents and their
involvement and participation in school, social, and
recreational events. They are responsible for carrying
out a written treatment plan for each resident. The
treatment philosophy of the Employer recognizes
that all of the behavior of the residents is in some
way an indication of their feelings. In their day-to-
day interaction with residents, the counselors are
expected to help the resident explore his behavior in
light of whatever his internal feelings are, and to try
to develop more appropriate behavior in response to
these feelings. The average stay for a resident is
approximately 6 months, and before a resident is
discharged, it is required that a physician sign a
discharge order.
The Employer's gross revenue for the fiscal year
ending June 30, 1974, was approximately $802,000.
The two major sources of funds were $357,000
classified as tuition fees from governmental agencies
and a $417,000 grant from the Department of Health,
Education and Welfare. For the fiscal year ending
June 1975, the Employer estimated that tuition fees
from governmental agencies would be approximately
$400,000 and the HEW grant would be $632,000. The
Employer also stated that, just prior to the hearing, it
was verbally informed that the HEW grant would be
eliminated. During fiscal 1974, the Employer pur-
chased approximately $10,000 worth of supplies
directly from suppliers located outside the State of
California, and estimated'that a maximum of $30,000
might have been spent! for goods that could have
originated from outside the State of California.
The Employer contends, inter alia, that it is not a
"health care institution" within the meaning of
Section 2(14) of the Act and that under the
jurisdictional standards, and guidelines set forth in
1 The names of the' Employer and the Petitioner appear as amended at
221 NLRB No. 107
the hearing.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ming Quong Children's Center, 210 NLRB 899
(1974),2 the Board should decline jurisdiction. Under
the facts in- this case we find that the type of
operation maintained by the Employer here clearly
falls within the definition of a health care institution.
Inasmuch as the Employer's gross annual income
clearly exceeds the $250,000 jurisdictional standard
which we have established for, inter alia, the type of
health care institution involved herein,3 we find that
the impact of the Employer's operation on commerce
is sufficient to warrant assertion of jurisdiction herein
and it will effectuate the purpose of the Act to do so.
2. The parties stipulated, and we, find, that the
Petitioner is a labor organization within the meaning
of Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of, the Act.
4. With respect to the appropriate unit, the
Petitioner seeks two units as follows:
Unit A. All maintenance assistants, mainte-
nance supervisors, housekeepers, custodians,
cooks, head cooks, a.m. supervisors, p.m. supervi-
sors, night supervisors, wing directors, child care
counselors, and drug abuse project assistants
employed by the Employer at its facility located
at 4151 Fountain Street, Long Beach, California,
excluding all other employees, office clerical
employees, guards and supervisors as defined in
the Act.
Unit B. All registered nurses, excluding the
nursing director and all other employees, guards
and supervisors as defined in the Act.
The Employer, however, contends that the mainte-
nance supervisor, head cook, wing directors, a.m.
supervisors, p.m. supervisors, night supervisors, and
drug abuse project assistant are supervisors and
should be excluded from any unit found appropri-
ate.4 The Employer would also include in unit A the
volunteer coordinator-activities director. Finally, the
Employer contends that the registered nurses are
professional and should be excluded from any unit.
With respect to the status of wing directors and
floor supervisors, we have heretofore noted that the
facility is divided into four wings and that 24-hour
2 Member Fanning would have asserted jurisdiction in Ming Quong, a
,California nonprofit corporation to help emotionally troubled children, as
he viewed the business aspects of that facility as akin to those of nursing
homes and other related facilities over which the Board has in the past
asserted jurisdiction.
3 See East Oakland Community Health Alliance, Inc., 218 NLRB No. 193
( 1975) (Member Fanning concurring in part and dissenting in part).
4 The parties stipulated that the administrator , program director, nursing
director , social work director , and research director are supervisors. The
parties further stipulated that the assistant research director and after-care
care is provided. Each wing has two or three
counselors and a wing director assigned to it. There
is also a floor supervisor for each of the, three shifts,
i.e., the a.m., p.m., and night shifts.5
As previously stated, the child care counselor acts
as a surrogate parent. For example, the counselor
may start off by getting the child out of bed and
getting his hygiene and dress attended to. He is then
responsible for getting the child off to school or to do
chores or see that the child is engaged in meaningful
activity during the day in accordance with the
treatment plan. The child care counselor also
counsels the residents throughout the day. The wing
director participates in these same activities to
implement the treatment program. The former
program director testified that approximately 75
percent of the wing director's daily time was spent
directly with the residents, and the remaining 25
percent was spent coordinating the activities of
residents and staff and doing' paperwork. There is no
evidence that wing directors have authority to hire,
fire, discipline, assign work, authorize- overtime,
transfer, promote, or effectively recommend the
same .6 It appears from the record that the program
director has the responsibility for these duties.
Furthermore, during most shifts there was only single
coverage of each wing, that is, either a counselor or a
wing director would be working alone. On only a few
shifts would there be both a wing director and a
counselor on duty. From the above, we conclude that
wing directors are not supervisors within the mean-
ing of the Act and we shall include them in the unit.
The floor supervisors spend approximately half
their time working with the residents and engaging in
such activities as counseling or recreational activity.
The floor supervisor has the responsibility to covet
all four wings and to coordinate the operations. The
floor supervisor is responsible for getting people on a
backup list when a counselor or a wing director calls
in sick, but he has no authority to require anyone to
report in. In the event that sufficient staff is not
available, the floor supervisor is responsible for
assigning staff to various duties in implementing the
program. The record does not indicate what this
entails. The floor supervisor also has the responsibili-
ty of scheduling staff. However, there is no evidence
that the floor supervisor hires, fires, disciplines,
promotes, or effectively recommends the' same.
supervisor be excluded from the unit as they have no community of interest
with the employees in any appropriate unit
5 During the night shift , when the residents are asleep , only two
employees are assigned to cover all four wings . One of these two is
designated the night supervisor
6 The Employer submitted a form containing an evaluation of a
counselor by a wing director. The Employer submitted no other evaluations
by a wing director and, indeed, the former program director testified that it
was his responsibility to prepare the evaluations.
TRAILBACK, INC.
Moreover, it appears that counselors and wing
directors regularly and frequently substitute for the
floor supervisors. In view of the absence of any
specific examples of supervisory authority, we
conclude that the a.m., p.m., and night supervisors
are employees rather than supervisors and we shall
include them in the unit.
The Employer contends, contrary to the Petitioner,
that the maintenance supervisor should be excluded
as a supervisor. In support of its position, the
Employer relies on the job description which states,
inter alia, that the maintenance supervisor has the
responsibility of supervising his assistants. However,
John F. Robinson, who served as acting administra-
tor from February 1974 until April 15, 1975, testified
that although there were a total of three or four
maintenance assistants employed during that time,
there was only one part-time assistant employed at
any one point in time. The maintenance supervisor is
responsible for overall maintenance of the lodge
facility and grounds including landscaping, care, and
repair of the buildings. The maintenance supervisor
spends 75 percent of his time engaging in physical
work and works with his assistant the remainder of
the time. Robinson testified that the maintenance
supervisor sends his assistant out to do most of the
landscaping jobs. The maintenance supervisor has no
authority to hire, fire, discipline, promote, or effec-
tively recommend the same with respect to his
assistant, as those functions were performed by the
administrator. Thus, although-it appears that the
maintenance supervisor assigns work to his assistant,
there is no indication that the assignments involved
are anything but routine, and this factor standing
alone does not establish that the maintenance
supervisor is indeed a supervisor within the meaning
of the Act. Accordingly, he is included in the unit.
The Employer seeks, to exclude the head cook,
contending that he is a supervisor. The head cook,
the full-time cook, and the relief cook work at•
various times during the day and although their
hours overlap, the cook, as well as relief cook, works
alone regularly. Except for the generalization in the
job description- that the head cook supervises the
cook, there is no evidence that the head cook ever
exercised any supervisory authority. Accordingly, he
is included in the unit.
The Employer would exclude the drug abuse
project assistant as a supervisor. This person oversees
the peer treatment program which involves only
529
residents. No employee reports to him and there is
no evidence of any supervisory indicia with respect
to this position. Therefore, the drug abuse project
assistant is included in the unit.
The Petitioner would exclude, whereas the Em-
ployer would include, the volunteer coordinator-
activities director. The Petitioner contends that this
person lacks a community of interest because she
works in the administrative area of the facility, works
from 9 a.m. to 6 p.m., and earns approximately $200
a month more than the child care workers. The
record reveals that the volunteer coordinator-activity
director coordinates the volunteer program and
communicates with staff members regarding jobs
that can be carried out by volunteers. She also plans
the weekly schedule of activities on a day-to-day
basis. We find that she has a sufficient community of
interest and she is included in the unit.
At the hearing, the Employer objected to the unit
of all registered nurses on the basis that it would call
for an election in a unit of one person. The record
reveals that this unit would include two regular part-
time registered nurses and is therefore an appropriate
unit.
Accordingly, upon the entire record and for the
aforementioned reasons, we shall direct elections
among employees in the two units which we find to
be appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
Unit A. All maintenance assistants, mainte-
nance supervisors, housekeepers, custodians,
cooks, head cooks, a.m. supervisors, p.m. supervi-
sors, night supervisors, wing directors, child care
counselors, drug abuse project assistant and
volunteer coordinator-activities directors em-
ployed by the Employer at its facility located at
4151 Fountain Street, Long Beach, California,
excluding all other employees, office clerical
employees, guards and supervisors as defined in
the Act.
Unit B. All registered nurses employed by the
Employer at its facility located at 4151 Fountain
Street, Long Beach, California, excluding the
nursing director and all other employees, guards
and supervisors as defined in the Act.
[Direction of Elections and Excelsior footnote
omitted from publication.]