Resident Home For The Mentally Retarded

RESIDENT HOME FOR THE MENTALLY RETARDED Resident Home for the Mentally Retarded of Hamil- ton County, Inc. and National Union of Hospital & Health Care Employees, 1199H, RWDSU, AFL-, CIO, Petitioner. Case 9-RC-11380 October 13, 1978 DECISION AND DIRECTION OF EL.ECTION BY CHAIRMAN FANNING AND MLENBERS JENKINS AND MURPHY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Andrew L. Lang on March 1, 2, and 5, 1976. Following the hear- ing and pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Petitioner and the Employer 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 they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: I. The Employer is a nonprofit Ohio corporation which provides educational, residential, and training services to the mentally retarded at two locations in Hamilton County, Ohio. Petitioner seeks to represent a unit limited to all professional and nonprofessional employees employed by the Employer at its West Fork facility. At issue herein is whether the Employer shares the State's and county's exemption from the Board's ju- risdiction under Section 2(2) of the Act. The Em- ployer contends that the Board should decline juris- diction in the present circumstances because (1) the State of Ohio and county of Hamilton control the Employer's labor relations policies and (2) because the Employer's operations are political subdivisions of the State of Ohio. We find no merit in the Employer's contentions. West Fork Facility The Employer's West Fork facility was founded in 1963 by a group of parents to provide a regional day care and residential center for the mentally retarded of the community. Substantial public funding of the home's operation became available in 1973 75 under the State of Ohio's Comprehensive Mental Health and Mental Retardation Plan authorizing the State to contract with private nonprofit agencies for the delivery of services to the mentally retarded. The Employer's facility is currently operated with funds allocated pursuant to purchase of service con- tracts, let annually, with three governmental agen- cies: (I) The Division of Mental Retardation and Developmental Disabilities, Ohio Department of Mental Health and Mental Retardation and its Dis- trict I (hereinafter the State); (2) the Hamilton Coun- ty Community Mental Health & Retardation Board (hereinafter the 648 Board); and (3) the Hamilton County Board of Mental Retardation (hereinafter the 169 Board). Each of these agencies requires that the Employer submit a proposed budget and work program which must be approved by the agency as a condition precedent to funding. To understand the extent to which regulations by each of these govern- mental agencies affect the Employer's discretion to bargain concerning working conditions at the West Fork facility, it is necessary to set forth the require- ments of each. Most of the evidence contained in the record is devoted to setting forth the nature and extent of reg- ulation of the Employer by the 648 Board.' Under the terms of its purchase-of-service contract with that board, the Employer agrees to develop a community mental health and retardation program within Ham- ilton Counts and to operate and administer the plan in compliance with the requirements of the applica- ble Ohio statutes: the rules, regulations, and stan- dards of the Ohio Commissioner of Mental Health; and the administrative guide and operating policies of the 648 Board. linder the terms of the contract and applicable regulations, it is the Employer's re- sponsibility to develop a budget and work program which covers, inter (ilia. the terms anj conditions of employment applicable to the Employer's centers, in- cluding recruitment of staff, preparation of job de- scriptions, and establishment of salary ranges, work- ing hours, and fringe benefits. While the Employer's budget must be approved by the 648 Board before the latter will agree to reim- burse the Employer for the operation of its facility, the 648 Board accords the Employer wide discretion in developing its budget. Thus, the purchase-of-ser- vice contract with the Employer provides that the 648 Board shall "recognize the [Employer's] autono- ms in determining its own policies [and] administer- ing to its approved plan." The 648's Board operation- Acc-ordnle[ ul( Ihe estinlon xN of the I mplo,\er execuille director. Joseph (iriffith. appllilni.jleli s"O pcrceni of the Emploier's funding Is supplied hb thc i64i B jrd DECISIONS OF NATIONAL LABOR RELATIONS BOARD al policies and procedures state that the 648 Board recognizes the autonomy of the agency [Employer] in determining employee benefits and practices of its personnel." Further, while the 648 Board has issued general guidelines for use by contracting employers in devel- oping an operating budget, such guidelines are appli- cable only where the employer's expenditures are sought to be charged to the 648 Board. The employer is otherwise free to alter or increase its budget with funding from other sources. Thus, under its guide- lines, the 648 Board will reimburse the Employer up to the maximum salary level for comparable posi- tions at the state level. However, the Employer is free to hire additional staff or to increase or decrease sal- aries without prior 648 Board approval where such expenditures are not charged to the latter, and it has in the past granted employees salaries in excess of the comparable state levels with funding from other sources. Similarly, while the 648 Board recommends the es- tablishment of a 40-hour workweek and has estab- lished guidelines regarding paid vacation, holidays, and sick leave where such expenses are to be charged to it, the Employer is free to supplement such bene- fits with funding from other sources. In addition, the Employer's current policies regarding vacation, holi- days, and sick leave differ from those of the 648 Board, and, in those instances where the Employer's policies are more liberal than those of the 648 Board, there is no indication that said Board has not granted full reimbursement in accordance with the Employer's practices.2 The Employer possesses substantial autonomy in all significant personnel matters including hiring, fir- ing, and disciplining of employees. As to hiring, while the 648 Board's guidelines require that employ- ees meet qualifications established for comparable positions at the state level, they deal primarily with certification requirements of the type generally appli- cable to all educational and health care institutions. And although an individual sought to be hired must normally be approved by the 648 Board prior to ac- tual hiring, the Employer has in the past completed the hiring process independently and thereafter in- formed the 648 Board of the action taken. In addi- 2 The 648 Board's personnel policies provide for the following v;lc;ltion benefits: I year 10 days: 8 years 15 days: 15 years 2() days: 25 sears 25 days. Holidays granted include: New Year's Dav. President's Day. Mem- orial Day, July 4, Labor Day. Columbus Day. Veteran's Day. hanksgiving. and Christmas. Sick leave accrues at the rate of 15 days annually The Employer's policies provide the following benefits: I year 12 days' vacation: 8 years- 18 days. The Employer's policies grant the same total number of holidays but have deleted Columbus Day and added Martin Luther King Day. Finally, sick leave under the Employer':; policies accrues at the rate of 15 day's annually for 12-month employees and 12-1 ,2 days annually for 10-month developmental day class teachers tion, according to the testimony of the Employer's executive director, Joseph Griffith, in some instances where an applicant the Employer has sought to hire does not meet all qualifications of the comparable state position, the 648 Board, while not approving funding in accordance with the comparable state lev- el, has approved funding for the employee at a lower level. Disciplinary action of employees is determined and administered by the Employer.3 Although the 648 Board required that the Employer have a proce- dure "for removal, suspension and reduction of em- ployees to a lower classification and the appeal pro- cedure which employees may use when faced with such action," the 648 Board does not require, nor does the contract provide for, appeal to the 648 Board, and no grievances have in fact been appealed to it. Compliance with 648 Board guidelines is moni- tored by monthly reports of cash receipts and dis- bursements submitted by the Employer to the for- mer. In addition, the 648 Board periodically makes visits both announced and unannounced to the Employer's facilities. As noted, supra, the Employer also receives fund- ing through purchase of service contracts with the State of Ohio and the county 169 Board. Under the terms of its contract with the State, the Employer must comply with state licensing requirements and regulations as to space, sanitation, and building codes. In addition, applicable state regulations re- quire that the Employer shall have written personnel policies as to wages, fringe benefits, and working hours. While the State imposes minimal levels as to staffing, the Employer is free to exceed those levels. The Employer's compliance with state regulations is monitored by state audits, annual licensing, and periodic visits by state personnel to the Employer's facilities. In addition, the State requires that the Em- ployer must submit weekly reports to the state divi- sion office which record time spent by children in residence at the Employer's homes and movements of children who return to families or otherwise are not present at the Employer's homes on a 24-hour basis. Under the terms of the contracts with the 169 Board, the Employer agrees to provide developmen- tal classes for 48 resident and 24 nonresident chil- dren for the months January through May. The 169 Board reimburses the Employer in an amount up to the State of Ohio contribution for each state-ap- proved individual and, in addition, agrees to provide certain moneys available from school districts for Although Executive Director G(rifflth testified that he has been required to report disciplinary actions taken against employees, there is no evidence In the record that the 648 Board has reversed, or otherwise interfered with. such actions. 4 RESIDENT HOME FOR THE MENTALLY RETARDED training and transportation services. The contract re- quires the Employer to comply with "standards spec- ified in applicable state statutes and regulations as promulgated by the State of Ohio." According to the Employer's executive director, it is the contract with the 169 Board which requires that all teachers be cer- tified by the State of Ohio.4 The Employer's compliance with 169 Board regu- lations is monitored by that board's requirement that the Employer submit monthly "Class Membership Lists" which show, inter alia, the elementary school which the child would otherwise attend and the par- ticular class assignment. The Employer must also submit monthly "Transportation Reports" and re- ports listing all children newly admitted to, as well as those released from, the Employer's homes. In addi- tion, the 169 Board makes visits both announced and unannounced to the Employer's facilities periodical- ly. Employer's St. James Facility The Employer's St. James Home, located 10 miles from the West Fork facility, is a residential facility for six developmentally disabled children. The chil- dren reside at the home 365 days a year. The primary function of the home is to provide childien with a planned long-term home, to insure their development of skills necessary for community living, and to ena- ble them to undergo normal child development expe- riences in a family-living situation with surrogate parents and siblings. This home commenced operation in 1972-73 with funds allocated pursuant to a Federal grant. Al- though not entirely clear from the record, it appears that continued operation of the facility is subject to the same state and county regulations as that of the Employer's West Fork facility. Discussion In determining whether the Employer shares the exemption of undisputedly exempt governmental en- tities from jurisdiction under Section 2(2) of the Act, the determinative question is whether the State of Ohio and county of Hamilton exercise such control over the labor relations policies of the Employer as to preclude the Employer from bargaining effectively over working conditions for its employees.5 4The record reveals two occasions on which the 169 Board was involved in disciplinary action against the Employer's employees. In the first in- stance, the 169 Board's function was limited to reporting information as to an employee's failure to meet necessary qualifications which had been dis- covered by it during routine investigatory procedures. In the second in- stance, the 169 Board relayed to the Employer evidence that one of its employees had engaged in child abuse. On each occasion, the Employer retained authority to determine appropritate sanctions to be administered. Here the immediate formulation of labor relations policies and procedures is a function performed by the Employer's board of directors. Thus, it is the Em- ployer who sets wages, hours, and working condi- tions applicable to its centers. In addition, the Em- ployer is exclusively responsible for disciplining and discharging its employees and retains primary au- thority with regard to hiring. Further, while both the State of Ohio and the county of Hamilton, through the 648 and 169 Boards, seek to regulate certain aspects of the Employer's operations, neither the nature nor extent of the regulation imposed significantly impairs the Employer's discretion to determine those working conditions "that would form the basis for collective bargaining as contemplated by the Act...." 6 Un- der its contract with the State of Ohio, the primary requirement imposed is that the Employer meet li- censing regulations and certification by the appropri- ate state agency and, in addition, certain department standards as to sanitation, safety, and space. Thus, the State's role is limited to insuring compliance with general governmental regulations of the type applica- ble to a broad class of health care institutions and which are applicable without regard to their status as governmentally funded operations. Under the terms of the Employer's contracts with the county, the role of both the 648 and 169 Boards is primarily limited to prescribing monetary limits on their funding of the Employer's operations. Thus, their review of the Employer's budget and work pro- gram is limited to insuring that the Employer's ser- vices are appropriate to meet the needs of the com- munity and that its budget is based on a realistic fiscal structure. While the 648 Board has issued gen- eral guidelines delineating expenses reimbursable by it, such guidelines are applicable only to budget ex- penditures sought to be charged to it. The Employer is otherwise free to alter or increase its budget with funding from other sources and has, in the past, devi- ated from budgetary guidelines without interference by the 648 or 169 Board. Further, while the State and the 648 and 169 Boards regularly inspect the Employer's facilities and require that it follow various reporting procedures and undergo annual licensing, such monitoring is limited to insuring that the Employer maintains its facilities in a manner consistent with minimum state health and education regulations. In sum, under its contracts with the State and two county boards here involved, the Employer's opera- tions are subject to general licensing regulations 5 The Buffalo General Hospital, 218 NLRB 1090 (1975). N. RB v E C Atkins & Compaon, 331 U.s. 398. 406 (9147). 5 6 DECISIONS OF NATIONAL which do not materially affect the Employer's labor relations policies. In addition, the governmentally prescribed guidelines as to personnel policies set forth in those contracts neither dictate nor otherwise interfere with the Employer's authority regarding the terms and conditions of employment applicable to the Employer's operations, but exist for the purpose of setting limits to the amount for which the State and the two county boards will agree to be responsi- ble to the Employer in the funding of its operations. In these circumstances, we find that the Employer retains sufficient independent discretion in determin- ing labor relations policies applicable to its employ- ees at the facilities herein to enable it to bargain ef- fectively concerning the terms and conditions of employment of those employees.7 We therefore con- clude that the Employer is not a joint employer with the county or the State and, accordingly, does not share the exemption of those governmental bodies from the jurisdiction of the Act. The Employer also contends that it is exempt from our jurisdiction as a political subsivision of the State of Ohio. We disagree. The Supreme Court has held that employers are exempt political subdivisions under Section 2(2) of the Act if they are either (I) created directly by the State, so as to constitute departments or administra- tive arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate. 8 As noted, supra, the Employer's operation was founded in 1963 by a group of parents to provide day care and residential services for the mentally retard- ed of the community, with the establishment of the West Fork home. Public funding of that operation did not become available until 1973-75, when the State first provided funds for it under the State Com- prehensive Mental Health and Mental Retardation Plan. As for the St. James home, we have noted that it was started with Federal funding. Furthermore, the day-to-day operations of both homes are adminis- tered by a 15-member board of trustees and an exec- utive director. None of the present state or county funding agencies has any authority as to the selection or composition of the Board of trustees. In addition, the Employer's executive director, Joseph K. Grif- fith, was hired by and is responsible to the Employer's board of trustees. While his appointment as executive director was reported to and approved by the State and Boards 648 and 169, it does not 7See, generally, Catholic Bishop of Chicago. A Corporation Sole, Depart- menrt of Federal Programs, 235 NLRB 776 (1978). N.L.R.B v. The Natural Gas Utilivy District of Hawkins Countiv, 402 US. 600 (1971). L LABOR RELATIONS BOARD appear from the record that such approval consti- tutes more than a ministerial act. In these circumstances we find that the Employer's operations were neither created directly by the State nor administered by individuals responsible to public officials or the general electorate. 9 Accordingly, we conclude that the Employer does not constitute an exempt political subdivision of the State of Ohio un- der Sec. 2(2) of the Act. The Employer finally contends that the Board should decline jurisdiction on the ground that its op- erations do not have a substantial impact on com- merce. The record discloses the following financial data with respect to the Employer's operations. For fiscal year 1975-76, the Employer's gross revenues approx- imated $685,981. For fiscal year 1976-77, the Em- ployer had gross revenues of $738,000. Of the Em- ployer's gross income, 95 percent is derived from moneys received from the Ohio Division of Mental Health and the county of Hamilton, State of Ohio. Approximately 5 percent of the Employer's revenues are derived from private, civic, and charitable organi- zations and donations. The parties stipulated that during the past calen- dar year, a representative period, the Employer pur- chased goods and supplies valued in excess of $10,000 from suppliers located within the State of Ohio, which, in turn, purchased those goods and sup- plies from firms located outside the State of Ohio. In addition, the Employer annually purchases goods valued at approximately $1,000 from firms located outside the State of Ohio. The Board has determined that institutions provid- ing care for the mentally retarded, such as the type of operation maintained by the Employer herein, fall within the definition of a health care institution with- in the meaning of Section 2(14) of the Act.'° Inas- much as the Employer's gross annual income clearly exceeds the $250,000 jurisdictional standard which the Baord has established for the type of health care institution involved in the present case, we find that the impact of the Employer's operations on com- merce is sufficient to warrant assertion of jurisdiction herein and that it will effectuate the purposes of the Act to do so." 9Association for the Developmentally Disabled, 231 NLRB 784 (1977). which involves services similarly provided under the State of Ohio's mei.tal health and retardation program and pursuant to contracts with the county of Franklin, Ohio, is distinguishable In that case, the facts established that the employer's operations were first authorized and established by the coun- ty and, further, that the county hired the employer's executive director and placed him on the county payroll. Accordingly. the Board there concluded that the employer was exempt from Board jurisdiction under Sec. 2(2) of the Act. 0 See Beverhl Farm Foundation, Incorporated, 218 NLRB 1275 ( 1975). 1 Our dissenting colleague argues that the Board is precluded from as- serting jurisdiction in the present case since the Employer operates as an adjunct to the Ohio public school system. In support thereof, she urges that RESIDENT HOME FOR THE MENTALLY RETARDED 2. The parties stipulated, and we agree, 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 employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit limited to all professional and nonprofessional employees em- ployed by the Employer at its West Fork facility. However, at the close of the hearing, it took the posi- tion that it would proceed to an election in any unit found appropriate by the Board. The Employer con- tends that, in the event the Board asserts jurisdiction, the appropriate unit should include both the West Fork and St. James facilities. The Employer employs approximately 70 em- ployees at its West Fork home and employs an addi- tional 4-5 employees at its St. James home. The facil- ities are located 10 miles apart and are subject to the same state and county regulations. Management of the two locations is centralized and common. In addi- tion, both St. James and West Fork employees have common job classifications and enjoy common holi- days, vacation, insurance, and other benefits. Some transfer of employees occurs between the two facil- ities, and one of the Employer's employees currently works at both locations. In light of the centralized management, common labor relations policies, close geographic proximity, and interchange of employees between the Employer's two facilities, we find that a unit limited to the Employer's West Fork facility is not appropri- ate for the purposes of collective bargaining, Accord- ingly, we shall direct an election in a unit which in- cludes employees employed at both the West Fork and St. James facilities. Remaining for consideration are certain questions regarding the unit placement, professional status, and eligibility of various employees employed by the Employer at both its West Fork and St. James facil- ities.2 the Employer's operations do not fall within the definition of a health care institution on the grounds that its institutions are educational in nature and are therefore distinguishable from those institutions providing services to the mentally retarded over which the Board has asserted jurisdiction as health care institutions. Beverly Farm Foundation, supra. Lutheran Associa. lion for Retarded Children, A California Non Profit Corporation d b a Home of Guiding Hands, 218 NLRB 1278 (1975). Contrary to her assertions. the Employer's operations cover a broad range of services, including residential care, social skills, and behavior modification. In these circumstances. we find no significant distinction between the Employer's facilities and those providing residential care and training to mentally retarded children which the Board has found to constitute health care institutions under the Act. Accordingly, we do not agree with the attempt to characterize the Employer as an adjunct to the public school system. 2The parties agree that employees in the following classifications are properly included in any unit which may be found appropriate: community The Employer employs one bookkeeper, one ac- counts clerk, and two secretarial service employees at its West Fork facility. Petitioner contends that all of the above are properly included in the appropriate unit, while the Employer contends that they should be excluded. The bookkeeper, Claire Livingston, works under the general supervision of Executive Director Grif- fith. She is responsible for maintaining all financial records utilized by the Employer and is required to keep Griffith informed as to the Employer's encum- brances, commitments, cash flow, receivables, and payrolls. The accounts clerk, Pat Coyle. is employed as a secretary to the executive director. Her primary duties include typing and handling of correspon- dence. She has access to all Griffith's personal files. Inasmuch as Livingston and Coyle carry out office and business functions of the Employer's primary administrator and have little contact with employees in the unit, we find that these employees are business office clericals who do not share a community of in- terests with other unit employees. Accordingly, we shall exclude them from the unit." As for the two secretarial service employees, one, Chris Reuter, is a switchboard operator-receptionist who also performs secretarial duties for the referral and counseling staff, and the other, Linda Elliott, is a secretary for the Employer's program director and teachers. Reuter's office is located in a building which contains the offices of the liaison educator, referral counselors, and family counselor. Elliott is located in a separate building which houses class- rooms, cafeteria, gymnasium, and the office of the program director. In performing their duties, both of them work closely with unit employees. On the basis of the foregoing, we find that Reuter and Elliott perform duties which are directly related to those of unit employees and, in addition, have reg- ular contact with unit employees. In these circum- stances, we find that they are analogous to plant cler- ical employees whose interests are closely aligned with those of other unit employees. Accordingly, we shall include them in the unit. The Employer also employs a registered nurse at its West Fork facility. Petitioner contends that she is properly included in the appropriate unit. The Em- resources coordinator, speech pathologist, teachers, teachers aides and assis- tants. family counselors, referral counselors. maintenance and repair em- ployees, part-time cook, housekeepers, custodians, laundry workers. and drivers. The parties further agree that employees in the following classifications are professional employees: registered nurses (RNs). referral counselors, and family counselors. The parties stipulated that the Employer's executive director, program director, and plan; manager are supervisors within the meaning of the Act. ~ See Shattrruck Shool 189 NLRB 886 (1971) 14 See Healthco, Inc --Healthco Medical Supplies. 223 NLRB 835 1977). 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer took no position regarding her unit placement. Both parties agree, however, that the nurse is a pro- fessional employee. In any event, her hours are from 8 to 4 on a 5-day basis, Monday through Friday. Her job duties include administering first aid and medica- tions and treatments ordered for children by physi- cians. The Employer has no infirmary facilities, and children who require bed care are returned to their families or taken to local hospitals. Inasmuch as the Employer's registered nurse per- forms duties which are related to those of the overall unit, and inasmuch as there is no indication that her functions as a professional employee place her in a unique position vis-a-vis other of the Employer's pro- fessional employees, and since no union seeks to rep- resent her on any other basis, we find that the Employer's RN shares an overall community of in- terest with unit employees. Accordingly, we shall in- clude her in the unit. Disputed Supervisory Personnel The parties disagree as to the eligibility of the fol- lowing individuals: group home housemother, Mary Campbell, employed at the St. James facility, and full-time cook, Elsie Minter, and liaison educator, Essie Peterson, both employed at the West Fork fa- cility. The Employer would exclude all of the above individuals from the appropriate unit as supervisors. Petitioner contends that the record is insufficient as to the supervisory status of the full-time cook and has not asserted a position with regard to the remain- ing two individuals. As the St. James housemother, Campbell is re- sponsible for overseeing all services provided at that facility. She has the authority to grant employees time off and to control and adjust employees' work- loads. In addition, in light of the unique need for harmony among employees present at that facility, her recommendations as to disciplinary actions to be administered to employees is uniformly adopted by the Employer's program director. In light of her au- thority to grant time off, to responsibly direct em- ployees in the performance of their duties, and to effectively recommend disciplinary action, we find that Campbell is a supervisor within the meaning of the Act, and we shall exclude her from the unit herein found appropriate. Peterson, as liaison educator, is responsible for coordinating services provided by the teaching and referral staffs and for developing programs for chil- dren admitted to the Employer's facilities. She also coordinates services provided by the Employer with those of outside agencies, including hospitals and diagnostic clinics. There is no evidence that she has the authority to hire, transfer, suspend, promote, or grant employees time off. While she has authority to recommend disciplinary action, disciplinary action is implemented by the program director only following an independent investigation. Based on the foregoing, we find that Peterson is not a supervisor within the meaning of the Act, and we shall, accordingly, include her in the unit herein found appropriate. Minter, the full-time cook, does not currently exer- cise supervisory authority. The Employer contends, however, that she will be granted such authority in the immediate future. Inasmuch as the record is in- sufficient to enable us to make a determination as to the status of Minter, we shall permit her to vote sub- ject to challenge in the election directed herein. Employer's Laid-Off Employees The Employer contends that, should the Board di- rect an election, employees Debbie Tripp, Joy Lynch, Mary Lynn Crawford, Phyllis Tresca, and Carol Smith are ineligible to vote on the ground that each has been permanently laid off. Petitioner has taken no position with regard to the voting eligibility of these employees. On March 2, 1976, the Employer informed all of the above-named employees that they were perma- nently laid off for financial reasons. The record fur- ther indicates that the positions held by these em- ployees were eliminated from the Employer's budget for the 1976-77 fiscal year. In these circumstances, we find that employees Tripp, Lynch, Crawford, Tresca, and Smith were laid off on March 2, 1976, without reasonable expectation of reemployment in the foreseeable future. Accordingly, we find that these employees are not eligible to vote in the repre- sentation election directed herein. 5 Disputed Professional Employees Petitioner contends that employees employed as teachers and those employed in the positions of com- munity resources coordinator and speech pathologist are professional employees under Section 2(12) of the Act.'6 The Employer has not taken a position with See, generally, Rembrandt Lamp Corporation, 128 NLRB 905. 908 (1960). 16Sec. 2(12)(a) of the Act defines a professional employee as one whose work is predominantly intellectual and vaned, involves the exercise of dis- cretion and judgment, cannot be standardized in the output produced or the result accomplished. and requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of spe- cialized intellectual instruction and study in an institution of higher learning or a hospital. 8 RESIDENT HOME FOR THE MENTALLY RETARDED regard to the professional status of these employees." Neither party has taken a position regarding the pro- fessional status of the liaison educator. The teachers are responsible for applying pro- grams developed for individual children in the class- room setting, interpreting and modifying those pro- grams as the situation requires, and directing the work of teachers aides and assistants and volunteer workers in the implementation of those programs. All teachers are required to possess a Bachelor of Arts degree in special education and to receive certi- fication from the State of Ohio. As noted previously, the liaison educator, Pe- terson, is responsible for coordinating services pro- vided by the teaching and referral staffs in the devel- opment of programs for individual children and, in addition, coordinates services offered within the Employer's facility with those of outside agencies. The liaison educator is required to have a B.A. in special education with a concentration in mental re- tardation, to be certified by the State of Ohio, and to have had 3 years of experience with a program simi- lar to the Employer's. The speech pathologist works with children with respect to speech and hearing problems. She is re- quired to have an undergraduate degree in speech and hearing. In addition, she is required to consult with outside agencies to arrange needed services for individual children where such services are not pro- vided by the Employer. On the basis of the foregoing duties and qualifica- tions, we find that the work performed by the teach- ers, liaison educator, and speech pathologist require knowledge of an advanced type acquired by a pro- longed course of specialized instruction. Accord- ingly, we conclude that employees in these classifica- tions are professional employees within the meaning of the Act. The community resources coordinator petforms public relations work on behalf of the Employer with the surrounding community. No specific educational background is required for this position. Inasmuch as there is no indication that the duties of this position involve the intellectual aspects and discretion or judgment which characterize professional duties, we find that the community resources coordinator is not a professional employee within the meaning of the Act. Based upon the above findings and the record as a whole, we find the following unit may be appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: 17 Although at the hearing the Employer indicated that i. tended to regard teachers as professional employees, it has not asserted any position in its brief. All teachers, teachers aides, teachers assistants, family counselors, referral counselors, liaison educator, speech pathologist, registered nurse, secretarial service employees, community re- sources coordinator, cooks, maintenance and re- pair employees, housekeepers, custodians, laun- dry workers, and drivers employed at the Employer's West Fork and St. James facilities, excluding the bookkeeper and accounts clerk and all guards and supervisors as defined in the Act. The unit set forth above includes professional and nonprofessional employees. The Board, however, is prohibited by Section 9(b)(l) of the Act from includ- ing professional employees in a unit with employees who are not professionals unless a majority of the professional employees vote for inclusion in such a unit. Accordingly, to ascertain the desires of the pro- fessional employees as to inclusion in a unit with nonprofessional employees, we shall direct separate elections in the following voting groups: Voting group A: All teachers aides, teachers as- sistants, secretarial service employees, commu- nity resources coordinator, cooks, maintenance and repair employees, housekeepers, custodians, laundry workers, and drivers, but excluding employer's bookkeeper and accounts clerk and all guards and supervisors as defined in the Act. Voting group B: All teachers, family counselors, referral counselors, speech pathologist, regis- tered nurse, and liaison educator, but excluding all other employees, guards, and supervisors as defined in the Act. The employees in the nonprofessional voting group, A, will be polled to determine whether or not they desire to be represented for collective-bargain- ing purposes by National Union of Hospital & Health Care Employees, 1199H, RWDSU, AFL- CIO. The employees in voting group B will be asked two questions on their ballot: (I) Do you wish to be included with nonpro- fessional employees in a single unit for purposes of collective bargaining? (2) Do you wish to be represented for pur- poses of collective bargaining by National Union of Hospital & Health Care Employees, 1199H, RWDSU, AFL-CIO? If a majority of the professional employees in voting group B vote "yes" to the first question, indicating their wish to be included in a unit with nonprofes- sional emplo)ees, they will be so included, and that unit, as described above, will be the appropriate unit 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for bargaining purposes. Their votes on the second question will then be counted together with the votes of the nonprofessional employees to decide whether (or not) the Union has been selected to represent the combined bargaining unit. If, on the other hand, a majority of the professional employees does not vote for inclusion, they will not be included with the non- professional employees. Their votes on the second question will be counted to decide whether or not they wish to be represented by the Union in a sepa- rate professional unit. In the event that the profes- sionals vote for separate representation, the appro- priate units will be described in the voting groups above. If a majority in either the professional unit alone, the nonprofessional unit alone, or the com- bined unit vote for the Union, the Regional Director will issue an appropriate Certification of Representa- tive for such unit or units. [Direction of Election omitted from publication.] 18 MEMBER MURPHY dissenting: The majority has decided to assert jurisdiction over the Employer's operation of state- and county- funded homes for the mentally retarded. They con- clude that the Employer does not share the exemp- tion of those governmental bodies from the jurisdic- tion of the Act and, further, that it meets the jurisdictional standard applicable to health care insti- tutions. Contrary to our colleagues, I find that the Employer's operations function as an adjunct to the Ohio public school system in providing educational opportunities to handicapped children who are resi- dents of the State of Ohio. Accordingly, I would de- cline to assert jurisdiction over the Employer and would dismiss the instant petition. The Employer is a nonprofit Ohio corporation which provides educational, residential, and training services to the mentally retarded at two locations in Hamilton County, Ohio. Under applicable provisions of the Ohio Revised Code, the State of Ohio has created a division of mental retardation and developmental disabilities and has charged it with the duty to establish and oversee services for the mentally retarded, including public education, prevention, diagnosis, treatment. training, and care. Specifically, the statutory scheme provides for the establishment of training and resi- dential centers at the county level for the training of mentally retarded children who have been adjudged by the proper authorities to be ineligible for enroll- ment in the public school system. The purpose be- hind this scheme is to enable such children to reach their full educational and developmental potential and to become integrated into the structure of soci- 18 [Ercelsior footnote omitted from publicatlon ] ety to the extent that they may be fitted therefor. In addition, county boards of mental retardation which, during the normal school year, have administered and supervised training centers for the mentally re- tarded may seek reimbursement for the costs of such training from the board of education for the school district in that county. In the instant case, the record reveals that the Employer receives funds which would otherwise be allocated to the Hamilton Coun- ty public school system through its contracts with the 169 Board. Pursuant to the above statutory scheme, the Employer's West Fork facility provides training ser- vices to approximately 72 mentally retarded children who range in age from 3 to 12 years. Of these chil- dren, 34 reside at the home 5 days a week, during which they receive intensive individualized training. Almost all of them return home on weekends. These children usually participate in the program for I year, after which it is anticipated that they will return to their family residence on a permanent basis and will receive educational placement elsewhere in the community. The Employer also operates a 7-day program at the West Fork home for approximately 14 children who, although institutionalized, have the potential for community living. Children in this program re- ceive intensive training during the day and reside at home on a 7-day basis. They normally participate in the program for 2 years. after which placement for them in a group or foster home is sought. Finally, the Employer provides developmental training for 24 children who do not reside at the West Fork home but attend classes offered at the home on a daily basis. The Employer provides trans- portation to and from the home. The Employer's St. James home is a residential fa- cility for six developmentally disabled children who reside at the home 365 days a year. The primary function of this home is to provide children with a planned long-term home, to insure the development of skills necessary for community living, and to un- dergo normal development experiences of children in a family living situation with surrogate parents and siblings. The Employer's facilities are regulated by three governmental agencies: (I) the Division of Mental Retardation and Development Disabilities, Ohio De- partment of Mental Health and Mental Retardation and its District I (the State); (2) the Hamilton Coun- ty Community Mental Health and Retardation Board (the 648 Board); and (3) the Hamilton County Board of Mental Retardation (the 169 Board). In ad- dition, 95 percent of Employer's income is derived from funds allocated by the above agencies under 10 RESIDENT HOME FOR THE MENTALLY RETARDED purchase-of-service contracts entered into with the Employer. Regulations issued by those agencies, and incorporated by reference into the purchase of ser- vice contracts, set forth guidelines as to employee classifications, qualifications required for such classi- fications, staffing levels, working hours, salary levels, and fringe benefits. In addition, the state and county agencies involved require compliance with minimum standards as to sanitation, safety, and space. Admission to the Employer's facilities is subject to prior approval by the State. All children admitted are Ohio residents and, in addition, it appears that most, if not all, are residents of Hamilton County. The Em- ployer is prohibited from charging tuition directly to parents. Families of children brought into the homes are charged by the State of Ohio a maximim of $4 per day, on a sliding scale, for the Employer's ser- vices to the child. Compliance with state and county regulations is achieved by virtue of audits, annual licensing, state inspections, and both announced and unannounced visits of the 648 and 169 Boards. In addition, reim- bursement for the Employer's expenses is made on a periodic basis and must be preceded by vouchers. Noncompliance with applicable state and county regulations can result in cancellation of the Employer's contract for funding. In the event that the Employer ceased to operate as a private facility, the Employer's executive director, Joseph Griffith, testified that the appropriate state and county agen- cies would continue to operate the Employer's homes as state facilities. In view of the foregoing, it is clear that the State of Ohio, by virtue of an extensive legislative scheme, has undertaken an obligation to provide educational opportunities to mentally retarded children and has chosen to meet its statutory obligation by contracting out to private nonprofit agencies for the delivery of appropriate and specialized educational servic.s. The legislative scheme further provides that such nonpro- fit agencies shall be regulated at both the state and county levels and funded with moneys appropriated from local county boards of education and such ad- ditional funds as the State and county deem neces- sary to accomplish the State's responsibility to pro- vide education to the handicapped and to implement specialized educational programs. It is further clear that the Employer's facilities are operated pursuant to the above legislative scheme and that the major thrust of the Employer's opera- tions are educational in nature. Thus, the primary emphasis of each of the Employer's programs is to provide formal educational training through regular classroom instruction and informal training through- out the remainder of the day encompassing behavior control, self-help skills, and increased physical coor- dination. In addition, while many of the children reside at the Employer's facilities, it is clear that the Employer's operations are not primarily custodial in nature. Thus, nearly 50 percent of the children ad- mitted to the Employer's West Fork home reside at the home only during the course of the normal school week. An additional 33 percent do not reside at the home at all but are bused in daily for the sole purpose of attending classes. Further, the average stay of an individual child is anticipated to extend from only I to 2 years, and the child is thereafter placed in a more complex educational and/or social environment elsewhere in the community. The special nexus between the Employer's facil- ities and the State's statutory obligation to provide education to the mentally retarded is further evi- denced by the substantial state and county regulation and nearly total funding of the Employer's opera- tions, the State's exclusive control over the children to be admitted to the Employer's programs, and its requirement that only those children excluded from the public school system are eligible for admission. In these circumstances I find that the Employer, in providing educational opportunities for the mentally retarded pursuant to contracts with, and under sub- stantiai regulation by, the State of Ohio and county of Hamilton, is performing a delegated function which is the acknowledged responsibility of the State of Ohio. I further note that, in providing services to the retarded in the circumstances here presented, the State is arguably fulfilling a constitutional duty. Thus, the Supreme Court has indicated that although a State is not constitutionally obligated to establish and maintain a public school system, where the State has undertaken to do so, educational opportunity is a property right protected by the due process and equal protection clauses of the 14th amendment, which must be made available to all on equal terms.'9 In addition. several district courts, in considering the application of the 14th amendment to the area of education of the handicapped, have indicated that where a State has undertaken to maintain a public school system it is constitutionally required to pro- vide educational opportunities to the handicapped commensurate with the capabilities of the child.2 Accordingly, since the State has chosen to meet its obligation to provide appropriate education to the ' See Goss \. Lope:. 419 LI S 565. 573 574 11975). BroIw v Board o4 Educatirl,, ofj Tpeka, 347 : S 483. 493 1954) , t %ilB BL .Bard , 'i t d.d lin a ! Pn rl tlo ( ,olIumbt. 148 F Supp 8( 6, 874 876 (D ( D . 1972 See a .so P,'nn [a 4, ,,i tto l4 ,, a t-, Retarded ( hbldren , (',,,ni, a th ,! P ,,n ia, ar t143 4 i Supp 279. 2'6 'I'a (D)(' F 1) Pa. 19721 I I DECISIONS OF NATIONAL LABOR RELATIONS BOARD handicapped through the Employer herein, I find that the Employer functions as an adjunct to the public school system.2' In so doing, I reject my colleagues' findings that the Employer's operations fall within the definition of "health care institution" as defined in Section 2(14) of the Act. Thus, contrary to those institutions providing care for the mentally retarded over which the Board has asserted jurisdiction as health care in- stitutions, the Employer's operations herein are not primarily custodial in nature. Rather, the Employer's primary aim is to educate and train the children ad- mitted to its facilities so as to enable the great per- centage to return to a more complex educational and social environment within a period of I to 2 years. In these circumstances, I find that the Employer's facil- 21 Mitchell School. Incorporared, and Main Line Day School, Incorporated. 224 NLRB 1017, 1018 (1976). ities are clearly distinguishable from those found by the Board to constitute health care institutions as de- fined in the Act.22 In sum, since I conclude that the Employer's oper- ations are not health care institutions as defined in the Act and, further, that its operations constitute an adjunct to governmental entities specifically exclud- ed from the coverage of the Act, I dissent from the majority's decisicn to assert jurisdiction and would dismiss the petition herein in its entirety. 22 Cf Lutheran Association for Retarded Children, A California Non-Profit Corporation d/b/a Home of Guiding Hands. 218 NLRB 1278 (1975). Beverly Farm Foundation, Inc., 218 NLRB 1275 (1975). Since I would not, in any event, find that institutions providing specialized services to the mentally retarded constitute health care institutions within the meaning of the Act, I would also decline jurisdiction in the circumstances of the present case on the grounds that the Employer is a nonprofit charitable institution whose operations are primarily local in nature and which do not have a substantial impact on interstate commerce. See my dissenting opinions in Home of Guiding Hands, supra, 218 NLRB 1280-84 (1975), and Beverly Farm Founda- tion, Inc., supra, 218 NLRB at 1277 (1975). See also Ming Quong Children's Center, 210 NLRB 899 (1974). 12