Florence Nightingale Nursing Home

FLORENCE NIGHTINGALE NURSING HOME Charles E. Sigety d/b/a Florence Nightingale Nursing Home' and Local 1115, Joint Board, Nursing Home & Hospital Employees Division,' Petitioner. Cases 2-RC-16540, 2-RC-16541, and 2-RC- 16542 April 29, 1975 DECISION AND ORDER By MEMBERS 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 Officer Elbert F. Tellem. Thereafter, the Regional Director for Region 2 trans- ferred this proceeding to the National Labor Relations Board for decision, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended. The Employer, Petitioner, and Intervenor filed briefs in support of their respective positions. 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 rulings of the Hearing Officer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby af- firmed. Upon the entire record in this case, including the briefs of the parties, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to repre- sent certain employees of the Employer. 3. By three separate petitions, Petitioner seeks to represent in Case 2-RC-16540 all service and mainte- nance employees employed by the Employer at the latter's nursing home located at 1760 Third Avenue in New York City (hereinafter Building 2), and in Cases 2--RC-16541 and 2-RC-16542, respectively, the regis- tered nurses (RN's) and licensed practical nurses (LPN's) employed at Building 2. The Employer, since commencing operation of Building 1 in 1967, has been a member of the Guild of New York Nursing Homes, Inc., a multiemployer or- ganization consisting of some 13 nursing homes in New York City. Successive and separate collective-bargain- ing agreements covering all service and maintenance I Employer's name appears as amended at the hearing. 2 On the basis of its collective-bargaining agreements with the Guild of New York Nursing Homes, Inc, a multiemployer association of which the Employer herein is a member, Local 144, Hotel, Hospital, Nursing Home & Allied Services Union, SEIU, AFL-CIO, intervened in Cases 2-RC-16540 and 2-RC-16542 Local 144 intervened in Case 2-RC-16541 on the basis of an independent showing of interest 601 employees and all LPN's employed by the constituent members of the multiemployer group have been signed by the Guild and the Intervenor herein. The most re- cent contracts of record, covering the two Guild units, were scheduled to expire on November 30, 1974. The RN's employed by members of the Guild are not cov- ered by any collective-bargaining agreement and are not represented by any labor organization. In April 1972 Employer commenced construction of a second nursing home, Building 2. At that time, be- cause the Intervenor had agreed to train the basically unskilled area residents, Federal funding was to be made -available to the Intervenor through a Depart- ment of Labor training consortium. In the expectation that such Federal funding was forthcoming the Em- ployer made commitments to local planning groups to staff Building 2 with area residents. In the latter part of 1973, Federal funding for the training consortium was terminated for reasons not of record. According to the Employer and the Intervenor, past-experience had indicated that a high rate of personnel turnover could be expected when large numbers of unskilled workers were employed; thus, in their view, the Federal funding cutoff, with the consequent inability of the Intervenor to train the area residents, presaged substantially higher initial operating costs. The Employer sought "wage relief" from the Intervenor. In return for exten- sion of the collective-bargaining agreement covering the service and maintenance workers and LPN's at Building 1 to those employees in the same job catego- ries to be hired to staff Building 2, the Intervenor agreed to modify, inter alia, the wage rates provided in those agreements so that service and maintenance workers and LPN's at Building 2 would initially re- ceive lower wages than their counterparts in Building 1, with eventual parity to be achieved as Building 2 reached full operational capacity, which at that time was projected to be November 1974. Building 2 began partial operation in March 1974. The service and maintenance employees and LPN's there were paid less than their counterparts at Building 1. Some were also told that at Building 2 "there was no union." On June 7, Petitioner filed the three petitions herein. Simultaneously it filed charges against the Em- ployer and the Intervenor alleging violations of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) of the Act. The Regional Director for Region 2 transferred the instant proceeding to the Board to consider the validity of the Employer's and Intervenor's contention that the - service and maintenance employees and LPN's of Building 2 constituted an accretion to the service and maintenance unit and LPN unit covered by the mul- tiemployer contracts, which, in turn, barred the peti- tions herein. We find no accretion. 217 NLRB No. 106 602 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD At the time of the hearing in this case, Building 1, a 407-bed skilled nursing home, employed approxi- mately-287 service and maintenance employees and 37 LPN's. The Employer projected, at that time, that upon reaching full operational capacity in November 1974, Building 2 would employ approximately 300 service and maintenance employees and 36 LPN's. Given the substantially larger size of Building 2, the Employer's projections would not appear to be over- estimated. In addition, there is substantial evidence in the record of the Employer's plans to build at least two additional facilities in the vicinity of Buildings 1 and 2. Although the record does not indicate the number of employees that will be required to staff the additional facilities, the Employer testified that upon completion its "geriatric complex" would have some 2,500 beds in its entirety, as opposed to the 407 beds for which Build- ing 1 is currently licensed. Under these circumstances, we believe it inappropriate to accrete the service and maintenance employees and LPN's at Building 2 to the existing group of employees represented at Building 1 without their having had an opportunity to determine for themselves whether or not they wish to be repre- sented by the contractual bargaining representative.3 3 See Melbet Jewelry Co, Inc., 180 NLRB 107, 109 (1969). To accrete them would deny the Building 2 group, at the minimum equal in number to the employee comple- ment at Building 1, the right to select their own bar- gaining representative. In addition, we believe the po- tential effect of accreting this group would, in turn, affect a much larger group of employees and deny them their choice of representative as buildings projected for the whole complex are completed.' Such considera- tions mandate, in our view, a greater emphasis on the statutory concept of free choice as exemplified in Sec- tion 7 and in Section 9(b) of the Act. As noted earlier, Petitioner has filed charges against the Employer and the Intervenor alleging violation of Section 8(a)(1),(2), and (3) and Section 8(b)(1)(A). We therefore do not reach the unit questions presented herein and shall remand this proceeding to the Re- gional Director for Region 2 for further appropriate action consistent with our determination. ORDER It is hereby ordered that the above-entitled matter be remanded to the Regional Director for Region 2 for further appropriate action. 4 See, e.g, Yale University, 184 NLRB 860, 862, fn 3 (1970); Panda Terminals, Inc., a wholly owned subsidiary ofPactfzc Intermountain Express Co., 161 NLRB 1215, 1223 (1966)