Toledo District Nurse Association

TOLEDO DISTRICT NURSE ASSN. 743 Toledo District Nurse Association and American Federation of State, County and Municipal Em- ployees, AFL-CIO. Cases 8-RC-9551 and 8-RC-9578 February 26, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, KENNEDY, AND PENELLO Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officers Robert S. Bauders and Barbara Fredericks of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and State- ments of Procedure, Series 8, as amended, the case was transferred to the Board for decision. A brief was filed by Petitioner. The Board has reviewed the Hearing Officers' rulings made at the hearing and finds that they are free from prejudicial error . They are hereby affirmed. Upon the entire record in this case , the Board finds: Petitioner seeks to represent separate units of the Employer's nursing and office clerical employees. The Employer, Toledo District Nurse Association (TDNA), is an Ohio nonprofit corporation organized to render certain community nursing services regard- less of ability to pay. Its services include bedside care under the direction of a physician, nutrition counsel- ing, physical therapy, and health supervision in the home. Annually it has gross revenues in excess of $100,000, and receives goods valued in excess of $2,000 from sources outside the State of Ohio. According to its constitution and bylaws, the membership of TDNA consists of an "Active Board of Trustees." Management is vested in a board of 27 trustees, consisting of 23 who are elected, 1 appoint- ed by the mayor of the city of Toledo, and 3 ex officio: the health commissioner of the Toledo City Board of Health, the chairman of the medical advisory committee to the Toledo District Nurse Association, and the "President of The Women's Council." TDNA and the Toledo City Board of Health have established Community Nursing Services (CNS) for the purpose of jointly rendering public health nursing I All personnel are under the supervision of the executive director, with responsibility carved out under the guidance of the health commissioner, "and shall adhere to the policies and procedures approved by the two Boards." "In order that conditions of employment be similar for all staff working in the program, changes in personnel policies being considered by either Board will be brought to the Coordinating Committee for review and services, and avoiding duplication of effort, The agreement between the two organizations provides that TDNA "shall furnish the services of its nurses to the Board of Health for compensation to be mutually agreed upon." It also provides that TDNA shall continue to, exist as a separate entity governed by its constitution and bylaws. The city health commission- er is responsible for the combined activities of the nursing services according to policies established by the separate governing boards of the parent agencies, but authority to administer the combined activities is vested in an executive director appointed jointly by the board of health and the board of directors of TDNA. In addition to her responsibility for the joint services, the executive director is also the executive director of TDNA. The agreement further contains provisions governing such subjects as the annual budget, fees which may be collected, and personnel.' A coordinating committee comprised of representa- tives of the board of health and TDNA is established to "review and interpret the policies and problems relating to the administration of the Visiting Nurse Service and to make recommendations to the Board concerning such policies." Finally, there is a medical advisory committee created to advise the board on medical questions. The agreement is terminable by either party on 90 days' written notice. The services offered by CNS totally integrate the efforts of TDNA and city nurses.2 When the nurses make service visits, they identify themselves only as CNS nurses and they wear an emblem with those initials. Each, nurse has a supervisor, who may be an employee of TDNA, or the city. All the supervisors report to the director of home health services, Mrs. Ruth Franklin, who is an employee of TDNA. Assignment decisions are made by the executive director. A particular unit of nurses on an assign- ment can contain both city nurses and TDNA nurses. The supervisor for such a unit can also be either a city employee or a TDNA employee. CNS has a business manager who is an employee of TDNA. The business manager has under him one supervisor, Mary Ann Cox, who manages the office clericals. She is a TDNA employee, but supervises all the clericals, both TDNA and city. Recommendations as to promotions are made by the supervisors to the executive director, who makes the decisions. This applies to both city nurses and consideration of the feasibility of both Boards adopting the policy." However, each organization retains the right "to increase or decrease the number of nurses employed by it, fix their salaries and provide for their promotion or change of classification." 2 TDNA and CNS have their offices in the Toledo Health Center, which is owned by the city. 216 NLRB No. 130 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TDNA nurses. In the case of requests for time off for maternity and vacations, the decision is made by the supervisor whether the employee is on the city or TDNA payroll. The primary sources of income for TDNA are the Community Chest, the Crusade of Mercy Funds, third party payments from a variety of different agencies such as Medicare, Blue Cross, Medicaid, and aid for the aged. Private patients pay for themselves. There are also endowments and invest- ments. The nursing services furnished by TDNA to the board of health are compensated as mutually agreed upon by TDNA and the board of health. Petitioner contends that the Board should assert jurisdiction because TDNA is an independent employer within the meaning of the Act. It points out that TDNA has continued to maintain its own identity, employees, payroll, treasury, board of trustees, constitution, bylaws, supervisors, and all of the traditional tests of an employer. Petitioner further contends that the contract between TDNA and the city of Toledo does not give the city authority or control over TDNA'S employees. We do not agree with these contentions. We find that the relationship between TDNA and the city of Toledo has in effect made them joint employers of the employees involved. A careful reading of the combination agreement for CNS clearly establishes that the city of Toledo has control over the joint operations of TDNA and the city. In the article relating to administrative responsibilities it is set forth that the health commis- sioner, an employee of the city of Toledo, shall be responsible for the combined activities of CNS. Although he delegates responsibility and authority to administer the combined activities to the head of TDNA, he is still the person ultimately responsible for the operation of CNS. There are many other factors which establish the joint employer status of CNS. In its operations, CNS makes no distinction between TDNA activities and city activities. Thus the nurses, when they pay visits, identify themselves only as CNS nurses and wear an emblem with those initials. The chain of command is 3 Sec. 2(2) of the Act provides, in part: The term "employer" includes any person acting as an agent of an employer ... but shall not include the United States or any wholly owned Government corporation . . . or any State or political subdivision thereof ... . 4 Massachusetts Society for Prevention of Cruelty to Animals, 203 NLRB 98(1973) Cf. Servomation Mathias, Pa., Inc., 200 NLRB 1063 (1972); Slater. Corporation, 197 NLRB 1282 (1972). 6 Our dissenting colleague relies on the Herbert Harvey decision as authonty for asserting jurisdiction in the present case. In Harvey, the employer's employees were engaged exclusively in the operation and maintenance of the buildings in which the World Bank, an exempt institution, was located. These housekeeping duties had no connection with the functions of the World Bank as an investment institution. On this mixed. Supervisors on either payroll supervise city and TDNA nurses without discrimination. When assignment decisions are made, there is no segrega- tion between the two groups of nurses. The salary for the nurses is the same regardless of whether they are TDNA nurses or city of Toledo nurses. It even appears from the record that there has been some shuttling back and forth of nurses from TDNA to the city and vice versa, an indication that the separating lines between both organizations have become blurred. TDNA nurses and city nurses receive the same treatment with respect to promotions, materni- ty benefits, vacations, and discipline. Even though TDNA retains its independent sources of income, the nursing services furnished by TDNA to the board of health are compensated as mutually agreed upon by TDNA and the board of health, a public agency receiving public funds. The intermingling of employ- ees is not only at the nurse level, but also at the clerical level. The fact that the contract is terminable upon 90 days' notice does not alter the effective merger consummated in practice. The CNS nursing services are planned in relation to the total public health program in the community under the direction of the health commissioner of the city of Toledo. The annual budget of the CNS is approved annually not only by the TDNA Board, but by the board of health of the city. Finally, the coordinating committee which reviews and interprets policies and problems relating to CNS is further evidence tending to show a joint employer status. We have found that TDNA and the city of Toledo are joint employers of the employees Petitioner seeks to represent. Accordingly, we are precluded by Section 2(2) of the Act3 from asserting jurisdiction herein.4 Moreover, even if we were to find that TDNA and the city of Toledo are not joint employers of the employees involved we would nevertheless in the exercise of our discretion decline to assert jurisdiction because of the intimate relation- ship between TDNA and the city of Toledo.5 We shall therefore dismiss the petitions .6 ground, the Board found that the maintenance company did not share the exemption of the bank. In the present case, on the contrary, the Employer renders the same services as the exempt Toledo City Board of Health. In fact, the two services are so intermingled as to constitute for operational purposes a single service. Under these circumstances, the Employer shares the exemption of the city of Toledo. As stated by the Board in Herbert Harvey, Inc. (171 NLRB at 239-240): The Board has .,.. uniformly held that the assertion of jurisdiction over a contractor providing services for an institution exempted from the process of the Act is dependent upon the relationship of the services performed to the exempted functions of the institution . Where the services are intimately connected with the exempted operations of the institution, the Board has found that the contractor shares the exemption ; on the other hand, where the services are not essential to such operations the Board has found that the contractor is not exempt TOLEDO DISTRICT NURSE ASSN. ORDER It is hereby ordered that the petitions herein be, and they hereby are, dismissed. MEMBER FANNING, dissenting: The majority has dismissed the petition here since it has found that Toledo District Nurse Association (TDNA) and the city of Toledo are joint employers of TDNA's employees whom Petitioner seeks to represent and therefore that TDNA somehow shares, with the city of Toledo, the city's Section 2(2) statutory exemption from the Act's processes. I think it clear, however, consistent with applicable Board and Court precedent, that the finding of a joint employer status here, even if justified, is not dispositive of the question whether jurisdiction should be asserted over TDNA. I therefore dissent from the majority's dismissal based on this joint- employer finding.? Rather, I think jurisdiction should be asserted here if, regardless of the degree of intergration that may exist between TDNA's operations and those of the city of Toledo, TDNA has retained sufficient control over the employment conditions of its employees to enable it to bargain effectively with a union. Since I think TDNA has retained such effective control, I would assert jurisdiction here.8 That a joint-employer finding is not determinative of the issue before us is clearly shown in the Board's supplemental decision in Herbert Harvey, Inc.,9 and the subsequent court of appeals decision affirming the Board's supplemental decision.10 In its Supple- mental Decision, the Board had accepted as the law of the case the circuit court's earlier holding" that Harvey and the International Bank for Reconstruc- tion and Development, commonly known as the World Bank, were joint employers of the employees involved there.12 The Board had then found that the World Bank was an entity not subject to the Board's jurisdiction. Notwithstanding these findings, howev- er, the Board had concluded that jurisdiction could and asserts jurisdiction over the contractor 's activities. See Rural Fire Protection Co, 216 NLRB No. 95 (1975). 7 Since I do not think that a joint employer finding is determinative of the issue presented here, I find it unnecessary to decide whether in fact a joint-employer relationship exists between TDNA and the city of Toledo s TDNA is funded essentially through chantable contributions. Annual- ly it has gross revenues in excess of $100,000, and receives goods valued in excess of $2,000 from sources outside the State of Ohio. It is thus subject to the Board's jurisdiction . See, e.g., Visiting Nurse Association, Inc., 188 NLRB 155 (1971). 9 171 NLRB 238 (1968). io 424 F.2d 770 (C.A.D.C., 1969) 745 still be asserted over Harvey if Harvey retained sufficient control over the employment conditions of its employees so as to enable it to bargain effectively with a union. Finding that Harvey did possess such control, the Board therefore asserted jurisdiction. On appeal, the circuit court, as the Board had done, took to be the law of the case its earlier holding that Harvey and the World Bank were joint employers. The court noted further, however, that "the issue then arising before the Board . . . was whether, in this alliance of exempt and nonexempt employers, Harvey is vested with enough autonomy over the employment arrangements and working conditions to enable it to bargain efficaciously with the Union." 13 Cautioning that "the fact that the Bank was exempt and shared in some degree the regulation of employment conditions would not ipso facto bar an assertion of jurisdiction over Harvey," 14 the court concluded that the Board had been correct in asserting jurisdiction over Harvey, despite Har- vey's joint-employer status with the World Bank, because of the degree of control Harvey possessed over its own employment relations. Clearly, then, the majority's reliance on its joint- employer finding between TDNA and the city of Toledo as a basis for dismissing the instant petition is incorrect. Rather, judging by the correct standard; i.e., the degree of control TDNA possesses over its own employment relations, I note the following: The agreement under which TDNA operates with the city specifies that TDNA shall continue to exist as a separate entity governed by its own constitution and bylaws. To that end, TDNA maintains its own employees, its own payroll, its own treasury, its own board of trustees, its own personnel policies commit- tee, its own supervisors, and its own grievances procedure. TDNA continues to hire, fire, ultimately discipline, promote, and grant pay increases and benefits to its own employees, and its employees who work with public employees are not affected by the personnel policies of the city as the city's employees are not affected by TDNA's personnel policies. i i See 385 F 2d 684 (1967) 12 Pursuant to a contract with the World Bank, Harvey performed service and maintenance duties in buildings in the District of Columbia owned by the World Bank. In its initial decision the Board had directed an election in a unit compassing employees performing these services See 159 NLRB 254 (1966) i3 Supra at 774 (fn omitted) i4 Supra at 774, fn 29 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In such circumstances, I think it clear that, notwithstanding the degree of integration of TDNA's and the city's services , TDNA possesses sufficient control over its own employees' working conditions to allow it to bargain with a union and therefore I would assert jurisdiction here and I dissent from the majority's failure to do so.15 15 As a separate alternate ground for dismissing the petition, the majority concludes that there is an "intimate relationship" between TDNA and the city of Toledo. By dismissing on this alternate basis, the majority again fails to consider the relevant factor of the degree of control possessed by TDNA over its own employment relations and gives weight again to an irrelevant factor. See Sis-Q Flying Service, Inc, 197 NLRB 195, 196 (1972). 1 therefore dissent also from the consideration given this alleged "intimate relation- ship."