Alcoholism Services Of Erie County

ALCOHOLISM SERVICES OF ERIE COUNTY, INC. Alcoholism Services of Erie County, Inc. and Buffalo & Western New York Hospital & Nursing Home Council, AFL-CIO. Case 3-CA-6968 June 14, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On February 9, 1978, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed cross-exceptions and a supporting brief. 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 considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Alcoholism Services of Erie County, Inc., Buffalo, New York, its officers. agents, successors, and assigns, shall take the action set forth in the said recommended Order. l In asserting jurisdiction over Respondent., we do not rely on Respon- dent's lack of intimate connection with the county of Erie. but rather rel) on Respondent's degree of control over the working conditions of the emplo- ees which enables Respondent to bargain effectively with the Union. Catho- lic Bishop of Chicago, A Corporation Sole, Department of Federal Programs. 235 NLRB No. 105 (1978). We note, in agreement with the General (Coun- sel's exception, that Buffalo Area Council on Alcoholism and the Union did. in fact, reach agreement. 2 Members Jenkins and Truesdale adopt the Administrative Law Judge's recommended order requiring Respondent to bargain with the Union. While he specified in the section of his Decision entitled "Remedy" that the initial period of certification will be construed as beginning on the date Respondent commences to bargain In good faith with the Union as the recognized bargaining agent in the appropriate unit, we find that a general bargaining order is the appropriate remedy. without stating a specific exten- sion of the certification year. See Federal Pacific Electric Companm. 215 NLRB 861 (1974). Chairman Fanning would affirm the Administrative Law Judge on this point. Where, as here. the Respondent. a successor employer, has neither adopted the contract negotiated by its predecessor nor recognized the certi- fied Union. the Chairman would hold that the Union has been effectively deprived of all the benefit of the certification. Cf. Glomac Plastics In- . 234 NLRB 1309, fn. 4 (1978). DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on March 14, 1977, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint on April 27, 1977, against Alcoholism Services of Erie County, Inc., herein called Re- spondent. alleging that it had engaged in certain unfair labor practices in violation of Section 8(a)(l) and (5) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the alle- gations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before the under- signed in Buffalo, New York, on August 8, 9, and 10, 1977. Briefs were received from the General Counsel and the Respondent on October 3, 1977, and they have been care- fully considered.' Upon the entire record in this case, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT A. Background; the Issues On May 7, 1976, following an election, the Board certi- fied as the exclusive bargaining agent of the employees of the Buffalo Area Council on Alcoholism, hereinafter called BACA, all employees in an appropriate bargaining unit consisting of all regular full-time and regular part-time se- nior emergency technicians, junior emergency technicians, senior aides, aides, and clerk typists employed at the Erie County Rehabilitation Center, 291 Elm Street, Buffalo, New York, excluding the senior clerk typist, vocational counsellors, registered nurses, social workers, guards, and supervisors as defined in the Act, and all other employees.2 Although the parties thereafter engaged in negotiations, no collective-bargaining agreement was ever reached. On January 1. 1977, the Respondent, Alcoholism Ser- vices of Ene County, Inc., hereinafter called ASEC or Re- spondent, entered into contracts with the Erie County (New York) Department of Mental Health to operate the Erie County Rehabilitation Center at 291 Elm Street, Buf- falo, New York, which is the same facility previously oper- ated by BACA. Although the Union subsequently request- ed Respondent to bargain for the employees in the foregoing unit certified by the Board, Respondent declined recognition and refused to bargain. The complaint alleges that Respondent is a successor to BACA and that its admitted refusal to bargain was in vio- lation of Section 8(a)(5) and (1) of the Act. Respondent defends itself on two grounds. One is that ASEC shares the statutory exemption of the County of Erie and the State of New York under Section 2(2) of the Act and hence is not The General C(ounsel's unopposed motion to correct the transcript. dat- ed September 29. 1977. is herchb granted -Case 3 RC 6S60 236 NLRB No. 111 927 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject to the jurisdiction of the Board. The second is that ASEC is not a successor of BACA. B. The Jurisdictional Issue It may be stated at the outset that with respect to the jurisdictional issue the General Counsel relies on Mental Health Services-Erie County South East Corp. V, 220 NLRB 96 (1975), in which case the Board found that the named employer was not exempt under Section 2(2) of the Act, and accordingly asserted jurisdiction. At all times material hereto, Respondent has maintained its principal office, facilities, and place of business at 291 Elm Street, Buffalo, New York, where it is engaged in the business of providing alcoholism treatment, rehabilitation, and related services. During the year 1977 Respondent per- formed services valued in excess of $500,000 for the Erie County Department of Mental Health and services valued in excess of $40,000 for private patients, approximately $30,000 of which latter amount was derived from New York State medicaid. Organized pursuant to section 402 of the Not-for-Profit Corporation Law of the State of New York in December 1976, Respondent is a nonprofit organization. Owning no assets of its own, the facility operated by Respondent at 291 Elm Street, including the furniture and equipment, be- longs to either Erie County or the State of New York. For all practical purposes, Respondent's activities are entirely supported by public funding. The first of two basic programs undertaken by Respon- dent at the 291 Elm Street facility is a sobering-up station which provides emergency treatment for intoxicated per- sons. This program is operated pursuant to contract with the county of Erie and is entirely funded by State revenues. The second basic program involves a residential program featuring long term care, treatment, rehabilitation, and training for nonintoxicated alcoholics. This program and the services involved are provided under a separate con- tract with Erie County and is supported by funds contrib- uted equally by the county and the State. Both of these programs, it is to be noted, are part of a comprehensive program administered under statute by the State Depart- ment of Mental Hygiene for the care of mentally ill, in- cluding alcoholics. However, although these services may be provided directly by the State via the county, Respon- dent ASEC is in fact a private sector counterpart to the Erie County Department of Mental Health, one of several agencies having the same status.3 The record reflects that in this case, as in Mental Health Services-Erie County South East Corp. V, supra, the rela- tionship between Respondent and Erie County is a con- tractual one; and although the county has "ultimate con- trol" over Respondent's activities, their respective rights and obligations are spelled out in the contracts. Similarly, except for overall guides and standards, the county does not have the authority to tell the Respondent how to con- duct its day-to-day operation. Robert Shear, the executive director of Respondent, is 'G.C. Exh. 17, responsible for the interviewing, hiring, and termination of employees, subject only to review by the Erie County De- partment of Mental Health set forth in the qualifications of approved job descriptions. Although Respondent may not pay its employees more than the maximum that a compa- rable county employee can receive, Respondent is free to exercise its discretion in paying its employees lesser amounts or at hiring employees below the county's usual starting rates. Respondent is also responsible for develop- ing its own fringe benefit program, although these beneifts may not exceed comparable benefits paid to county em- ployees. Respondent's agreement with the county contemplate that Respondent may or will enter into a collective-bar- gaining agreement with a labor organization. Aside from a restriction that "the County shall not reimburse the Agen- cy for any expenditures pursuant to such labor agreement or Agency plan which exceed the line item budget provi- sions in Appendix A," insofar as labor relations are con- cerned the contract otherwise only requires Respondent to provide the county with copies of all collective-bargaining agreements that have been negotiated. Section 2(4) of the Act enlarged the Board's jurisdiction in the health field to include: Any hospital, convalescent hospital, health mainte- nance organization, health clinics, nursing home, ex- tended care facility, or other institution, devoted to the care of sick, infirm, or aged person: Aside from the jurisdictional issue herein raised by the Respondent, I think it clear, and I would find, that alcohol- ics are "sick persons" within the meaning of the above Section of the Act. Indeed, this was so recognized in an attached document of a memo to the ad hoc committee, whose function was to form the Respondent corporation, by Dr. David S. Reynolds, which states in pertinent part as follows: 4 The concept of alcoholism as a disease to be treated has become more commonly accepted today though it was only in the 1950's that the AMA officially desig- nated alcoholism as a disease. The general principle of treatment of alcoholism rests on the assumption that alcoholism is a progressive disease of drug addiction with greater prognosis for arrest and treatment when detected and treated in the earlier stages. Upon the entire record in this case, I find no merit in Respondent's contention that the factual circumstances in the present case are materially different from those in Men- tal Health Services-Erie County South East Corp. V. To the contrary, I find that the factual circumstances to be so similar that I must regard the Mental Health Services case to be controlling here. Accordingly, in rejecting Respon- dent's contention that Respondent shares the exemption of the county of Erie and the State of New York under Sec- tion 2(2) of the Act, I adopt as applicable here the follow- ing finding of the Board in the Mental Health Services, su- pra: Moreover, we find that the services provided by the 4G.C. Exh. 17. 928 ALCOHOLISM SERVICES OF ERIE COUNTY, INC. Employer are not so intimately connected with the county of Erie as to consider it a joint-employer with the county, or to justify the extension of the county's exempt status as a political subdivision of the State of New York under Section 2(2) of the Act to the Em- ployer. We further find that the Employer exercised sufficient control over the wages, hours, and other conditions of employment of its employees to enable it to bargain effectively with the Union. [Footnotes omitted.] In sum, and upon all the facts heretofore related, I find that Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that it is subject to the jurisdiction of the Board. 11. THE LABOR ORGANIZATION INVOLVED Buffalo & Western New York Hospital & Nursing Home Council, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. iil. THE UNFAIR LABOR PRACTICES Respondent was organized as a corporation pursuant to the efforts of an ad hoc committee during the latter part of 1976. It took over the aforenoted facilities at 291 Elm Street previously operated by BACA on January 1, 1977, and immediately continued, with minor subsequent modi- fications, the same operations and services as had been provided by BACA. As previously noted, notwithstanding Board certification of the Union on May 7, 1976, the Union and BACA com- menced bargaining but never reached a collective-bargain- ing agreement prior to January 1, 1977. By letter addressed to Respondent dated January 25, 1977, and February 7, 1977, the Union requested Respondent to bargain.5 It is undisputed that at all times material hereto Respondent has refused to recognize and bargain with the Union. As has also been previously noted, the complaint alleges, and Respondent denies, that Respondent is a successor to BACA and that Respondent's refusal to bargain with the Union was therefore violative of Section 8(a)(5) and (1) of the Act. The facts in this case are such that no lengthy discussion of the successorship issue is required. As has been indi- cated, there was no hiatus in operations when Respondent took over the 291 Elm Street facilities on January 1, 1977. Respondent retained a majority of the same unit employ- ees formerly employed by BACA 6 and continued opera- sConceding that the February 7 letter constituted a request to bargain, Respondent apparently questions the letter of January 25 as constituting a request to bargain. While the matter does not warrant detailed discussion. I would construe the letter of January 25 as also being sufficiently clear to constitute a request to bargain. This is particularly true because Rohert Shear, Respondent's executive director to whom the letter was addressed. concededly was previously aware of the Union's status as the collective- bargaining agent as well as the fact that the Union had undertaken collec- tive-bargaining negotiations with BACA. s In fact. with the exception of Executive Director Shear. all 25 of the employees (including supervisors) on Respondent's payroll as of Januart I. tions at the same location and in the same facilities as its predecessor, with the same equipment. Although the testi- mony of Executive Director Shear indicates that Respon- dent intends to place more emphasis on the long term treatment of alcoholics than did its predecessor. the fact remains that Respondent's basic function, as was that of its predecessor, is to provide for the care and treatment of alcoholic persons. Considering all the foregoing factors and circumstances, I find that Respondent's operations is essentially the same as that of its predecessor in every ma- terial respect and that Respondent therefore is a successor employer. N. L. R.B. v. Burns International Security Services, Inc.. et al.. 406 U.S. 272 (1972); Nazareth Regional High School v. N.L. R.B.. 549 F.2d 873 (1977): Dynamic Machine Co.. 221 NLRB 1140 (1975). Accordingly, since Respon- dent was bound to bargain with the Union, I find that its refusal to do so violated Section 8(a)( ) and (5) of the Act. IV THE EFFECT OF THE U NFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. v THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent cease and desist therefrom, and that it take certain affirmative action designed to effectuate the poli- cies of the Act. In order to ensure that the employees in the appropriate unit will be accorded the services of their selected bargain- ing agent for the period provided by law, I shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Dynamic Machine Co., supra, and cases cited therein. CONC(LUSIONS OF LAW 1. Alcoholism Services of Erie County, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Buffalo & Western New York Hospital & Nursing Home Council, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) is: 7 1977. cere former BA( A emplo ees Although the names or tites of certain job classlfications have been changed by Respondent since the initial Board certification, the partile should have no difficulty In determining which of the new classiflcations Continued 929 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All regular full-time and regular part-time senior emergency technicians, junior emergency technicians, senior aides, aides, and clerk typists employed by Re- spondent at the Erie County Rehabilitation Center, 291 Elm Street, Buffalo, New York, excluding the se- nior clerk typist, vocation counsellors, registered nurs- es, social workers, guards, and supervisors as defined in the Act, and all other employees. 4. Since May 7, 1976, the above-named labor organiza- tion has been and now is the certified and exclusive repre- sentative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 5. By refusing on or about February 10, 1977, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On the basis of the above findings of fact, conclusions of law, and the entire ;ecord, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The Respondent, Alcoholism Services of Erie County, Inc., Buffalo, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with Buffalo & Western New York Hospital & Nursing Home Council, AFL-CIO, as the exclusive bar- gaining representative of its employees in the appropriate unit set forth in the above Conclusions of Law, paragraph 3. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. were intended to be included in or excluded from the initial Board certifica- tion. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 9 In the event that this Order is enforced by a Judgment of a United States (Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its facilities in Buffalo, New York, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with Buffalo & Western New York Hospital & Nursing Home Council, AFL- CIO, as exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL. upon request, bargain with the above- nanrrd Union as the exclusive representative of all em- ployees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All regular full-time and regular part-time senior emergency technicians, junior emergency techni- cians, senior aides, aides, and clerk typists employed by us at the Erie County Rehabilitation Center, 291 Elm Street, Buffalo, New York, excluding the senior clerk typist, vocational counsellors, registered nurs- es, social workers, guards, and supervisors as de- fined in the Act, and all other employees. ALCOHOLISM SERVICES OF ERIE COUNTY. INC. 930