Silver Lake Nursing Home

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emanuel Birnbaum and John W. Jones d/b/a Silver Lake Nursing Home and Licensed Pratical Nurses of New York, Inc., Petitioner. Case 29-RC-1170 September 17. 1969 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CIIAIRMAN MCCU LI OCH AND MEMBERS JENKINS AND ZAGORIA On March 25, 1969, the Regional Director for Region 29 issued a Decision and Order in the above-entitled proceeding, in which he dismissed the petition on the ground that the requested unit is inappropriate. Thereafter, in accordance with Section 102 67 of the National Labor Relations Board Rules and Regulations, as amended, the Petitioner filed a timely request for review, contending that the Regional Director departed from officially reported Board precedent in dismissing the petition. The Intervenor' filed a statement in opposition to Petitioner's request for review. By telegraphic order dated May 16. 1969, the National Labor Relations Board granted the request for review. Thereafter, the intervenor filed a brief on review. The Board' has considered the entire record in this case, including the briefs of the parties, with respect to the issues tinder review, and makes the following findings. The Petitioner desires to represent a unit of certain licensed practical nurses employed by the Employer. The Regional Director, in agreement with the Employer, the Intervenor, and the Metropolitan New York Nursing Home Association, Inc. (herein called the Association) of which the Employer is a member, dismissed the petition on the ground that the requested unit is inappropriate. We find, contrary to the Regional Director, that the requested unit is appropriate. The Employer operates several nursing homes in or near the New York City metropolitan area including the one here involved which is located on Staten Island and began operations about December 1966. The Employer's staff at this home includes 15 licensed practical nurses, in addition to registered nurses. nurses aides, housekeeping and maintenance employees. Petitioner seeks a unit of the licensed practical nurses at this location The Association is composed of some 80 of the 92 nursing homes in the city of New York. In March 'Licensed Practical Nurses Guild of the Medical rcchnology , Nursing Arts and Office Employees Division of Local 144, Hotel and Allied Service Employees Union. Service Lmployecs International Union, AFL-CIO, intervened on the basis of a contractual interest 'Pursuant to the provisions of Sec 3 (h) of the National Labor Relations ALL, as amended , the Board has delegated its powers in connection with case to a three.-member panel 1965, following a card check conducted by the Associate Counsel of the New York City Department of Labor, the intervenor was recognized as the bargaining representative for a multiemployer unit of licensed practical nurses. Thereafter the Association entered into • a contract covering an Associationwide unit of licensed practical nurses which is effective from March 1, 1965, until August 31, 1969. The Association and the Intervenor also have two additional contracts covering separate units of registered nurses and blue collar workers When the Employer opened its Staten Island home in late 1966 it was not a member of the Association. In January 1967, the Employer entered into separate agreements with the Intervenor in which the Employer agreed to be hound by all the terms of the Association's contracts covering licensed practical nurses, registered nurses, and blue collar workers, respectively. At the same time the Employer agreed to be bound by the agreement covering licensed practical nurses, the intervenor waived immediate application of that contract's union-security provisions and the provision requiring the Employer to contribute to the pension fund. At that time the Intervenor also, apparently. waived immediate compliance with other provisions of the contract. On April 5, 1967, the Employer applied for membership in the Association and its application was accepted. On August 25, 1967, the Employer executed an Agent Authorization in which it designated the Association as its collective-bargaining representative. The record indicates that - consistent with the original arrangement between the Employer and the Intervenor - a number of the terms of the collective-bargaining contract covering the licensed practical nurses at the Employer's nursing home here involved were not enforced either before or after the Employer joined the Association. Thus, the employees are paid at a higher rate than the contract scale - one such increase resulting from direct negotiations between the Employer and the Intervenor in September 1967, a date after the Employer became a member of the Association; there have been significant departures from the overtime provisions of the contract, the holiday provisions have not been uniformly followed; and the Employer made no contributions to the pension and welfare funds of the intervenor No union stewards were elected or appointed for the licensed practical nurses, and, although some grievances were processed which affected these employees as well as the blue collar workers, it does not appear that the licensed practical nurses themselves utilised their contract procedures. On or about January 20. 1969. the Intervenor demanded that the contract be enforced and the Employer informed the licensed practical nurses that they would be required to pay union dues in accordance with the union-security provisions of that 178 NLRBNo.71 SILVER LAKE NURSING HOME 479 agreement.' Thereupon the licensed practical nurses contacted the Petitioner who filed the instant petition on January 23. The Regional Director found that the Intervenor's failure, prior to January 1969, to enforce its contract is an insufficient ground to negate a finding that the Employer's licensed practical nurses have become a part of the multiemployer unit. The Regional Director rather concluded that, since the Employer has joined the Association and agreed to be bound by group bargaining, the Employer and the Intervenor have taken definitive action to include these employees in the multiemployer unit. He accordingly found that a unit limited to the Employer's licensed practical nurses is inappropriate. We disagree. A single-employer unit is presumptively appropriate in the absence of a controlling history of bargaining in a multiemployer unit.' And an employer will not be deemed to have included its employees in a multiemployer unit unless it has manifested an unequivocal intent to he bound by group rather than individual action in collective bargaining.' In the present case the bargaining history for the licensed practical nurses has been extremely limited. Thus, these employees have not been accorded a number of benefits which normally flow from collective bargaining and, in fact, have been deprived of a number of the benefits set forth in the very contract which purportedly governed all their terms and conditions of employment. Thus, as recited above, several benefit provisions of that contract were never enforced,` no representatives were appointed at the Employer's nursing home for the licensed practical nurses and the grievance provisions of the contract were not utilized in the nurses' behalf. The only significant evidence of Intervenor's direct representation of the licensed practical nurses -other than the execution of the contract which was supposed to cover their terms and conditions of employment-is to be found in the September 1967 wage increase which Intervenor negotiated for them. it does not appear that any of the licensed practical nurses joined the Intervenor after employment by the Employer nor does it appear that any of them authorized Intervenor to bargain for them prior to the Employer's recognition of Intervenor E g , Chicago Metropolitan llomebudderc Association . 119 NLRB 1184, 1185 'E g . Quality Limestone Products . Inc . 143 NLRB 589, 591 Intervenor explains in its brief that it is customary not to cntore, some. of Its contract provisions against a new nursing home , such as the Employer, while such a home is getting on its feet But, Intervenor argues, other benefits under its contract -including such matters as sick leave, leaves of absence, maternity leaves, workweek , lunch periods, work shifts and meals were furnished by the Employer as provided by the contract the record does not support this contention the Employer ' s administrator testified that he had never seen the Intervenor's contract until the hearing and that in providing the foregoing benefits to employees he merely followed what he understood to be industry practice as applied to licensed practical nurses He testified that he pays the going rate and in some cases his rate of pay is independent of the contract provisions Even assuming however, that the foregoing benefits were provided pursuant to the Further, we are not convinced that the Employer's involvement in such bargaining as did occur demonstrates an unequivocal intent on its part to be bound by the action of the mutliemployer group. We rather conclude, after consideration of all the circumstances, that the limited bargaining for the Employer's licensed practical nurses has been on a single-employer basis. Thus, as previously set forth, the Employer' s initial recognition of the Intervenor, in January 1967, was on the basis of a single-employer unit of these nurses at the Employer's Staten Island home,' and the Intervenor at that time granted the Employer an individual exemption from a number of the requirements of the collective-bargaining agreement. Even after authorizing the Association to bargain for it in August 1967, the Employer bargained separately with Intervenor for a wage increase for its licensed practical nurses. And, thereafter until the time the petition was filed, the Intervenor continued the Employer's individual exemption from many of the provisions of the contract. Against this background, we conclude that, notwithstanding its bargaining authorization to the Association, the Employer-with the acquiescence of the Intervenor and, apparently. of the Association as well' - continued to chart its own separate course in labor relations insofar as its licensed practical nurses were concerned. Having satisfied ourselves that there is no controlling history of multiemployer bargaining, we further find that a unit limited to the Employer's licensed practical nurses at its Staten island home is appropriate A single location unit is presumptively appropriate,' and a finding of the appropriateness of a unit composed of the Employer's licensed practical nurses at this home is moreover supported by the limited bargaining history Further, the Employer's Staten Island nursing home operates autonomously under the direction of its own administrator, and there is no showing of any regular interchange of the licensed practical nurses at this home with any of the Employer's other employees at this or other locations. Finally, the Employer's registered nurses and blue collar workers at the Staten Island home are already represented under separate contracts by the Intervenor. Since a unit of the Employer's licensed practical nurses at the Staten Island home is appropriate, the question then becomes whether the petition is barred by the Intervenor's collective-bargaining agreement contract, the failute of the Employer to comply with other provisions of that agreement must mean that the Employer, at all relevant times, had its own separate arrangement with Intervenor which varied from the requirements of the contract 'Mere adoption of a muluempioyer contract by an individual employer Is not sufficient to include an employer in a multiemployer unit F g, Colonial Cedar Compani , Inc 119 NLRB 1613 The Employer did not authorize the Association to bargain in its behall until several months later 'Ihere is no indication that the Association protested the Employer's failure to comply fully with the contract's provisions 'See, e g , Western and Southern Life Insurance Company, 163 NLRB 138, enld 391 F 2d 119 (C 1 3), cert denied 393 U S 978 480 DECISIONS OF NAT-IONAL LABOR RELATIONS BOARD covering licensed practical nurses.'" We find that the contract is not a bar. Because of the Employer's exemption from so many provisions of that agreement and the Employer's practice of paying wage rates at variance from it, we find that the contract. when made, did not chart with adequate precision the actual terms and conditions of employment that were to be applied so that the contract was not one to which the parties, and the employees, could look for guidance in their day-to-day problems." In these circumstances, we cannot honor that agreement as one imparting sufficient stability to the bargaining relationship to justify us in withholding a present determination of representation. 12 In view of the foregoing, we find that a question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 2(6) and (7) of the Act.13 We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All licensed practical nurses at the Silver Lake Nursing Home in Staten Island, New York, excluding all other employees, office clerical employees, professional employees, -watchmen, guards and supervisors as defined in the Act. [Direction of Election" omitted from publication.] "The Regional Director found it unnecessary to consider this contention "Appalachian Shale Products Co. 121 NLRB 1160, 1163 "Raymond's, Inc, 161 NLRB 838, 840 "See International Paper Company. Southern Kraft Division. 172 NLRB No. 100 Cf Butte Medical Properties . d/b/a Medical Center Hospital. 168 NLRB No 52, Reynolds Electrical and Engineering Co . 133 NLRB 113; Hospital Hato Teias. Ill NLRB 155 "In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc. 156 NLRB 1236; N L R B v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 29 within 7 days of the date of this Decision on Review and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed