Upstate Home for Children

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 986 (N.L.R.B. 1992)

986
309 NLRB No. 160
UPSTATE HOME FOR CHILDREN
1 Community Residence Program Director William Twasutyn testi-
fied that the community residence RN spends 40 percent of her time
training nonprofessional staff to administer medications and to meet
adult resident health needs. Another 40 percent of her time involves
supervision of resident charts to ensure resident staff implementation
of physician recommendations. Like professional RNs, the rec-
reational therapist works weekends.
Upstate Home for Children, Inc. and Local 721,
Service Employees International Union, AFL–
CIO, Petitioner. Cases 3–RC–9859 and 3–RC–
9860
December 16, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Petitioner’s request for
review of the Regional Director’s Decision and Order,
pertinent portions of which are attached. The Petition-
er’s request for review is granted. The Board has re-
viewed the entire record, and has decided to affirm the
Regional Director’s dismissal of the petitions for sepa-
rate units of Licensed Practical Nurses (LPNs) and
Registered Nurses (RNs) employed in the Employer’s
residential school and care facilities.
The record supports the Regional Director’s findings
that the Employer’s nurses share overall common su-
pervision with other professional and nonprofessional
employees and play an important role in interdiscipli-
nary team functions. Since March 1991, nursing serv-
ices ceased functioning as a separate department, and
was placed under the jurisdiction of the Education De-
partment supervised and administered by School Direc-
tor Patricia Kennedy. Kennedy testified that the pri-
mary reason for the change was the need for integra-
tion of nursing services into the Employer’s inter-
disciplinary program. The Employer complies with
state-mandated Individual Education Plans (IEP) and
Individual Living Plans (ILP) by requiring that em-
ployees who work with students, including teachers,
nursing staff, residential unit supervisors, and special-
ized therapists, participate in the formulation and im-
plementation of an interdisciplinary care and treatment
program that is tailored to an individual child or resi-
dent’s needs. This program utilizes the specialized
skills and knowledge of these employees to service the
educational, health, medical, physical, sociological, be-
havioral, and residential living needs of the children
and adult residents. Kennedy testified that state regula-
tions require that each employee who takes care of a
child in the Employer’s educational and residential
programs know what kind of medication a given child
takes, the condition for which the medication is pre-
scribed, and what the possible side effects of the medi-
cation may be.
The record also establishes that many nonnurses per-
form duties related to ‘‘medical’’ functions, such as
passing medications, administering treatments, and
dealing with sick children in classrooms or residences.
Nonnursing staff employees in both the classrooms and
residences, such as classroom aides, child development
aides, and teaching assistants, are certified to dispense
medications.1 Aides perform nursing functions by pass-
ing medications or administering treatments involving
creams or soaps that are prescribed by a physician for
extended field trips or daily outings. According to the
testimony of Elizabeth Davis, the director of residential
services, the recreational therapist attends daily outings
and passes medications about 80 percent of the time on
those outings. Nine child development aides are also
certified to pass medications. Furthermore, G-tube
feeding and catherizations can also be done by non-
medical staff.
Apart from common supervision and integration of
medical job duties, other significant terms and condi-
tions of employment, such as hours of work and over-
lapping shift schedules, facilitate job function inter-
change and substantial and frequent contact among
nurses and the Employer’s other professional and non-
professional employees. Like child development aides
and shift charges in the residential units, nurses work
a 6 a.m. to 2 p.m., 2 p.m. to 10 p.m., and 10 p.m. to
6 a.m. shift schedule. The ‘‘school day’’ extends from
8:30 a.m. to 3:30 p.m., and overlaps the nurses’ day
and afternoon shifts.
Nurses do not function in a special infirmary or hos-
pital-like setting and are not isolated from other em-
ployees working in the school and residential program.
The nursing area is located next to classroom 6 at the
Employer’s main campus at Milford Center. The
nurses have daily contact with teachers, therapists, the
adaptive physical education teacher, and the residential
unit staff such as child development aides. Educational
staff visit the nurses’ area to report abrasions, cuts, sei-
zures, or other medical incidents. Interchange regard-
ing the care of specific patients occurs routinely be-
tween nurses and other caregivers during the day such
as at morning feeding when medications or eating pat-
terns are discussed with unit staff, when a child’s
health restrictions or problems require nurse participa-
tion on a mealtime assessment team, during daily dis-
cussions regarding school programming, through teach-
er-nurse coordination of field trips, through nurse dis-
cussion of the swimming program with the adaptive
physical education teacher, or through nurse participa-
tion in behavioral management programs.
Although nurse contact with education department
employees ends with the schoolday, thereafter nurses
have daily contact with residential department employ-
ees, who continue daily programming and care. When
987UPSTATE HOME FOR CHILDREN
2 For the fiscal year ending June 1991, the Employer received Fed-
eral funds in excess of $75,000.
3 In R. W. Harmon & Sons, Inc., 297 NLRB 562 (1990), relied
on by the Employer in its brief, the Board concluded that the Em-
ployer had ‘‘not met its burden of showing that it is not free to set
the wages, benefits and other terms and conditions of employment
for its employees.’’ The record in the instant case discloses that the
Employer has ‘‘the final say on the entire package of employee
compensation.’’ Id.
the student is ‘‘passed’’ to residential services, the res-
idential staff receive ongoing verbal reports from
nurses that evaluate student health. They also have ac-
cess to a ‘‘communication book’’ that contains infor-
mation on health situations and directions for health
care. When students leave the residence to go to a doc-
tor’s appointment, they are supervised by an RN or
LPN and a shift charge or child development aide.
Although RNs and LPNs do not routinely participate
in residential unit meetings, Davis testified that nurses
informally visit and converse daily with residential
staff after rendering treatments or dispensing medica-
tion. Similarly, Kennedy testified that the exchange of
information is very good and nurses communicate with
residential staff about how a child is feeling and eat-
ing.
Based on the foregoing, we agree with the Regional
Director that the Employer’s nurses share common su-
pervision with other professional and nonprofessional
groupings and play an important role in interdiscipli-
nary care and treatment plans tailored to meet the
needs of handicapped students and residents. The
record also establishes that nurses share other signifi-
cant terms and conditions of employment that facilitate
a high degree of functional integration with the work-
force and close contact with other professional and
nonprofessional employees. For example, overlapping
hours of work and shift schedules foster job function
interchange and substantial and frequent contact among
nurses and other employees working together as part of
the Employer’s team approach to meet the needs of
handicapped students and residents. Accordingly, we
agree with the Regional Director that the petitioned-for
units do not constitute identifiable groups sharing a
sufficiently distinct community of interest sufficient to
warrant separate ‘‘nurses only’’ voting units.
APPENDIX
Regional Director’s Decision and Order
Upstate Home for Children, Inc. (the Employer) operates
a residential school for mentally retarded children at its Mil-
ford Center facility. In addition, the Employer operates six
community residences for mentally retarded adults.
The Employer, a New York State not-for-profit corpora-
tion, affiliated with the American Baptist Church, is gov-
erned by a 20-person board of directors. While directors are
church selected, eligibility for employment and admittance
into the Employer’s program is nondenominational. Approxi-
mately 97 percent of the Employer’s revenues, which is in
excess of $5 million, is received from state and Federal
agencies,2 with the remainder from private donations.
Funding through State mechanisms is based on mathemati-
cal formulae which take into consideration full time equi-
valents in staff and availability of money. Although various
state regulations are applicable to the Employer’s programs,
these regulations do not relate to specified terms and condi-
tions of employment.
The Employer contends that due to its sources of funding,
pervasive state regulation of its operations and its religious
affiliation the Board ‘‘either lacks or should not exercise ju-
risdiction.’’ I find these contentions to be without merit. In
this regard I note there is no requirement that department
heads, employees, or those admitted to the programs be reli-
giously affiliated. Moreover, there is no contention made nor
evidence presented that the Church exercises any influence
with respect to day-to-day administration or course of care.
Accordingly, assertion of jurisdiction does not pose a risk of
infringement on the first amendment. See Hanna Boys Cen-
ter, 284 NLRB 1080 (1987); Livingston College, 286 NLRB
1308 (1987). Inasmuch as the Employer has gross revenues
in excess of $5 million, of which an amount in excess of
$75,000 is received from Federal funds, it is clear that the
Employer meets the appropriate standard for discretionary ju-
risdiction for institutions engaged in the care and custody of
children, as well as statutory jurisdiction. See Saratoga
County Economic Opportunity Council, 249 NLRB 453, 455
(1980); Hudelson Baptist Children’s Home, 276 NLRB 126
(1985). Finally, in light of the fact that the State does not
dictate how funds are specifically used, I conclude the Em-
ployer retains sufficient control over essential terms and con-
ditions of employment to enable it to engage in meaningful
collective bargaining.3 The fact that state regulations pertain
to operational aspects, apart from labor relations, does not
warrant a contrary conclusion. See Long Stretch Youth
Home, 280 NLRB 678 (1986); Community Interactions, 288
NLRB 1029, 1032 fn. 12 (1988). Accordingly, I conclude
that it will effectuate the purposes and policies of the Act to
assert jurisdiction herein.
Petitioner in Case 3–RC–9859 seeks to represent a unit of
registered nurses (RNs) (five employed in the residential
school and one in the community residence program). In
Case 3–RC–9860 Petitioner seeks to represent a unit of li-
censed practical nurses (LPNs) (seven employed in the resi-
dential school program).
The residential school, which serves 48 children referred
by individual school districts throughout the State, consists of
a school function, generally operating on a traditional school
calendar and hours and a residential program which cares for
the children during nonschool time. The school, which falls
under the purview of Patricia Kennedy, school director, is
staffed with six classroom teachers, one adaptive physical
education teacher, one library media specialist, one staff de-
velopment specialist, one physical therapist, one speech ther-
apist, one recreational therapist, and one psychologist, all of
whom have a 4-year or more degree and state licensure or
certification. In the classroom teachers are assisted by nine
teacher assistants and two to four teacher aides per class-
room. Additional school program personnel include an assist-
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The recreational therapist holds a 4-year degree and licensure.
5 It appears to some extent that medications are also passed out by
nonnursing staff.
6 The record is silent as to the Employer’s pay structure. Nursing
staff, maintenance workers, housekeepers, cooks, and child develop-
ment aides are hourly paid. Teachers, teachers aides, and the various
therapists are salaried.
7 Although the Employer is not a health care institution (see Con-
temporary Guidance Services, 291 NLRB 50, 52 (1988)), I note that
the petitioned-for units would be found inappropriate under the
standards extant prior to the adoption of the Health Care Rules. See
Trinity Memorial Hospital, 219 NLRB 215 (1975). In this regard the
Board’s recent decision in Park Manor Care Center, 305 NLRB 872
(1991), directs utilizing a broad approach, including ‘‘community of
interest’’ factors in determining appropriate units in nonacute health
care institutions.
ant occupational therapist (2-year degree, licensed); a phys-
ical therapy assistant (2-year degree, licensed); two speech
therapist assistants (state certified), and three prevocational
assistants.
When not in the classroom, the children fall within the
overall responsibility of Elizabeth Davis, director of residen-
tial services. Each of the four residential units is headed by
a unit supervisor. Additional staff include 9 shift charges, a
total of approximatly 65 team coordinators and child devel-
opment aides, 6 housekeepers, 2 laundry personnel, and a
recreational therapist.4 Nursing Services, which falls under
Kennedy’s oversight, is headed by nursing coordinator Mad-
eline Sansevere, a non-RN. A lead nurse, Diane Dixon, has
responsibility for professional care. The LPNs and RNs per-
form identical functions although it appears that and LPN
will consult with an RN if unsure on how to handle a situa-
tion. The RNs an LPNs (nursing staff) provide service 7 days
a week on a 24-hour basis. The work primarily consists of
passing out and charting medication5 and performing routine
medical treatments, such as catherizations. The nursing staff
perform their duties throughout the campus facility, including
the residential units and classrooms. The nursing staff, as es-
timated by Petitioner’s employee witness, spends approxi-
mately 10 percent of the workday in contact with other staff
concerning student needs. In this regard residential staff and
school staff bring student health concerns or direct inquiries
to the nursing staff. Various specialized staff, such as the oc-
cupational therapist, contact the nursing staff for certain fol-
low through treatment. On occasion the nursing staff accom-
pany students and other staff on field trips or to medical ap-
pointments.
As described by Kennedy, those employees who work
with students, including teachers, nursing staff, various thera-
pists, and other professional staff participate in formulation
and implementation of Individual Education Plans (IEP) and
Individual Living Plans (ILP), which are mandated by the
State and provide an outline of the care and program admin-
istered to the individual student.
The Employer’s six residential homes, one located at Mil-
ford Center and the remainder within 20 miles of Milford
Center, serve approximately 60 mildly and profoundly re-
tarded adults, age 21–69. The program is headed by William
Twasutyn, program director, who supervises a total of 66
employees, including residential counselors, shift coordina-
tors and an RN. The community residence RN covers the six
homes and trains staff to meet state regulations and the needs
of patients, including administration of medication. In addi-
tion, this RN oversees resident charts to ensure that doctor
recommendations are implemented by staff.
The Employer has a total staff of 255 individuals. While
work periods for those involved in teaching conform to the
school calendar, all employees regardless of program, work
under one employee handbook which governs terms and con-
ditions of employment. The Employer operates under one
budget and one payroll.6 On occasion employees working in
one program have transferred to the other. Similarly, it ap-
pears that employees in one program have substituted in the
other.
Petitioner contends that the RNs and LPNs, due to the na-
ture of their training, job functions, and conditions of em-
ployment, constitute appropriate bargaining units and that an
election should be ordered allowing the RNs to vote for rep-
resentation and for affiliation with the LPN bargaining unit
sought.
The Employer, apart from its jurisdiction arguments, con-
tends that in light of the degree of functional integration of
the work force, and the close contact of the nursing staff
with both professional and other employees that under either
a community-of-interest or disparity-of-interest standard the
petitioned-for units are inappropriate.
Although not fully developed in the record, it appears by
reason of education and duties that the RNs together with
teachers and various therapists constitute a group of profes-
sional employees who share common supervision and terms
and conditions of employment. Similarly, the LPNs by way
of education and duties appear to be part of a technical
group, together with various therapy assistants who share
common supervision and terms and conditions of employ-
ment. It further appears that nursing staff members have reg-
ular contact with other staff, including arguably professional
and technical employees, with whom they interact to develop
treatment and care plans for those served by the Employer’s
operations.
In view of the foregoing, and the record as a whole, I find
that the petitioned-for units do not constitute identifiable
groups sharing a sufficiently distinct community of interest.7
Rather, both groups of employees share significant policies
and terms and conditions with other employees, and the Em-
ployer’s team approach to delivery of services results in sub-
stantial contact with other employees. Accordingly, the sepa-
rate units sought are not appropriate. Alexian Bros. Hospital,
219 NLRB 1122 (1975); North Arundel Hospital Assn., 279
NLRB 311 (1986). The Petitioner has failed to affirmatively
express a desire to proceed to an election in the event units
different from that petitioned for were found appropriate.