Child and Family Service of Springfield, Inc.

CHILD & FAMILY SERVICE OF SPRINGFIELD 37 Child and Family Service of Springfield, Inc. and Local 509, Service Employees International Union, AFL-CIO, Petitioner. Case 1-RC-13624 August 29, 1975 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Albert N. Stieglitz. Following the hearing, and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Region- al Director for Region 1, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Petitioner and 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 case, including the briefs filed herein, the Board finds: 1. The Petitioner seeks to represent all full-time and regular part-time employees of the Employer at its two Springfield, Massachusetts, locations, located approximately 4 miles apart. Both the Petitioner and the Employer urge the Board to assert jurisdiction. For the reasons stated hereinafter, we shall assertju- risdiction over the Employer. The Employer is a private nonprofit Massachusetts corporation, engaged primarily in providing social services, including family, marriage, individual, and personal counseling, foster family care, adoptions, homemaker services, family life education, and out- reach services to various parts of the community. The major social service function of the Employer is fam- ily and marriage counseling and therapy. The social workers deal with individuals and families under stress and experiencing personal difficulties. The counseling is done either one to one, with couples, or with whole families. The social workers consult and work with hospitals as well as psychiatrists and other medical personnel on common cases. The Employer's other major operation is the pro- viding of homemaker services, which is home care for children, families, and older citizens in order to maintain them in their own community and to pre- vent institutionalization. The homemaker performs duties such as substitute child care, light housekeep- ing, meal preparation, shopping, and light laundry, and gives emotional support and encouragement to the family members. The homemaker performs mini- mal personal care but is not allowed to give medica- tions or prescriptions. Approximately 75 to 80 per- cent of the Employer's homemaker services are for elderly persons. The Employer's total operating budget for the fis- cal year which ended September 30, 1974, was be- tween $415,000 and $420,000. For the current fiscal year, the Employer anticipates an operating budget of approximately $450,000. In the last fiscal year, $224,000 was received from the Federal Government, pursuant to three contracts; approximately $127,000 was received from endowment income; approximate- ly $64,000 came from the United Way; and private contributions amounted to approximately $1,500. The remainder of the revenue, approximately 10 per- cent, was derived from fees for services. The Employ- er had expenditures in interstate commerce amount- ing to $22,619.25. Based on the above facts, we find that the impact of the Employer's operations on commerce is suffi- cient to warrant assertion of jurisdiction herein and it will effectuate the purposes of the Act to do so. Ap- proximately 40 percent of the Employer's budgeted expenses are devoted to homemaker operations, which is directed almost entirely to provide services for people who have health problems. In this regard, the Employer's homemaker operations are similar to those of visiting nurses association over which we have asserted jurisdiction and applied a $100,000 standard.' Although the homemakers administer no medical treatment, we have asserted jurisdiction over, and applied the same standard to, facilities which provide essentially custodial and personal care functions .2 Since the Employer's direct and indirect purchases of goods and service affect commerce under the Act, and inasmuch as its annual budget meets the Board's discretionary jurisdictional dollar-volume standard, we find that it will effectuate the policies of the Act to assert jurisdiction herein over the Employer.' 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- Visiting Nurse Association, Inc, 188 NLRB 155 (1970) Z Forestam Realty Corporation d/b/a Riverdale Manor Home For Adults, 189 NLRB 176 (1971) 3 In view of our assertion of jurisdiction, we find it unnecessary to decide whether the Employer's total operation, including the counseling and home- maker services, meets the criteria of a "health care institution" as defined in Sec 2(14) of the Act 220 NLRB No. 4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. With respect to the appropriate unit, the Peti- tioner seeks a unit of all full-time and regular part- time employees of the Employer. This proposed unit would include employees located at the Employer's two offices, referred to as the Pine Street and Divi- sion Street offices. The Employer, however, urges the Board to find two appropriate bargaining units: (1) a professional unit of social workers; and (2) a nonpro- fessional unit of clericals, maintenance employees, and homemakers. The Employer employs approximately 50 persons in several job classifications. The social workers are employed in both locations and are classified as so- cial work assistants, social work associates, and prac- titioner I, II, and III. The clerical staff is also em- ployed at both locations, whereas the maintenance employees work at the Pine Street office. The 24 homemakers receive their assignments by telephone and go from their own home in which they are as- signed. They have contact with the counseling staff in those circumstances where the family or families that they are serving also are being served by the social workers. It appears that most of the fringe ben- efits, with some exceptions, are available to all em- ployees. There is contact among all employees, some overlapping of supervision, and it appears that the existence of two offices is primarily for the conve- nience of the persons being served by the Employer. In view of the above, and as no union seeks to repre- sent any of the employees in a different unit, we find that a single unit of employees at both locations is appropriate. There remains for consideration the issue of whether social workers are professional employees as contended by the Employer. In addition, the Em- ployer also contends, contrary to the Petitioner, that certain employees are supervisors and/or confiden- tial employees within the meaning of the Act and should therefore be excluded from any unit or units found appropriate by the Board. ly recommend or in fact actually hire, discipline, di- rect, and assign employees, and they are clearly su- pervisors within the meaning of the Act.4 The Employer contends, contrary to the Petitioner, that Barbara Gingold and Elizabeth Simon are su- pervisors. Both are classified as practitioner III. The record indicates that Gingold spends approxi- mately 40 percent of her time engaged in direct ser- vice such as personal, marital, individual, and group counseling. The balance of her time is spent handling the "in-take system" and overseeing the activities of two employees as well as students. As "in-take super- visor" she is responsible for scheduling and assigning personnel to cover the duty hours. Although she does not have authority to hire, she does participate infor- mally in the hiring procedure. She has authority to grant time off, schedule and approve overtime, and adjust grievances and has reprimanded employees. She is responsible for evaluating employees and has the authority to recommend the promotion of an in- dividual. Finally, she attends supervisory meetings. Elizabeth Simon has four employees reporting to her, and the same supervisory indicia, as described above with respect to Gingold, are applicable to Simon. In view of the above facts, we conclude that Gingold and Simon are supervisors within the meaning of the Act and must be excluded from the unit. 2. Alleged confidential employee The Employer contends, contrary to the Petitioner, that Charlotte Doherty, the bookkeeper, is a confi- dential employee and should be excluded from the unit. She handles the receipts of all bills, makes out checks for the treasurer's signature, and is responsi- ble for accounts receivable and payroll. She also is responsible for preparation of the monthly treasurer's report. There is no indication that she as- sists and acts in a confidential capacity to persons who formulate, determine, and effectuate manage- ment policies with regard to labor relations, or that she regularly substitutes for employees having such duties.' Accordingly, we shall include her in the unit. 1. Alleged supervisors The parties stipulated, and the record supports the finding, that Edwin A. Abusamra, executive director, and Robert Stephanchick, project director, are super- visors as defined in the Act. The Employer contends, and the Petitioner does not dispute, that Isabelle Mc- Neil, director of professional services, Emma Ladd Johnson, director of homemaker service, and Marga- ret Noble, administrative assistant, are supervisors. The record reveals that all three individuals effective- 3. Alleged professional employees The Employer and Petitioner contend that the 15 nonsupervisory social workers are professional em- ployees. As stated earlier, the social workers are clas- sified as practitioner I, II, and III, social work associ- ates, and social work assistants. The practitioners, ° In view of this finding it is unnecessary to determine whether Noble is also a confidential employee. 5 The B F Goodrich Company, 115 NLRB 722 (1956) CHILD & FAMILY SERVICE OF SPRINGFIELD with one exception,6 have master's degrees in social work. The duties of the practitioner I include "the gathering, analysis and evaluation of case data, the formation of psychosocial diagnosis, treatment plans and goals, the carrying out of the treatment process and the analysis and evaluation of the course and results of the treatment process and plan for the or- derly termination of service."' In view of the intel- lectual character of the work performed, in addition to the academic training and other knowledge of an advanced type required, we conclude that the em- ployees classified as practitioners are professionals. There are four persons classified as social work assistants. None has a degree and their cases are usu- ally task oriented or service oriented. Thus the job description states that the social work assistant "serves clients who require clearly defined supportive and educational services, environmental changes, and the interpretation and use of appropriate com- munity resources." The social work assistant, work- ing under close supervision, provides a range of serv- ices to clients including: "direct interviewing with the scope of his duties as described above, ancillary ser- vices such as transporting infants in our car, escort- ing clients for appointments, supervising children during their parents' appointments, assisting with shopping and other concrete problems, making con- tacts with community resources in client's interest and under supervisory guidance." The qualification is a high school diploma or its equivalent. The three employees classified as social work asso- ciates all have baccalaureate degrees, but none have a degree in social work, and no specialized training or experience is required. The social work associate performs tasks similar to those performed by the as- sistant. The basic distinction, outside of the academic degrees, is that the level of sensitivity and technical competence is expected to be greater in the associate. The assistants as well as the associates function un- der the direction of a certified social worker. Neither the assistants nor associates are eligible for certifica- tion, for which a master's degree is required. In view of the above, we find that the assistants and associ- ates require no advanced knowledge or specialized training in an institute of higher learning. Further, they are closely supervised in the performance of their jobs. Accordingly, we find that employees clas- sified as social work assistants and social work asso- ciates are not professional employees within the meaning of the Act. In accordance with the above findings and the rec- ord as a whole, we find that a unit of all full-time and 6 One employee, Eileen Grinspoon, has a bachelor of science degree and was promoted to the position of practitioner on the basis of her experience and level of expertise. She has taken courses on the master's degree level 7 This is revealed by the job description 39 regular part-time employees, excluding managerial employees, guards and supervisors as defined in the Act, may constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. However, this unit includes professional and nonprofessional employees, which the Board cannot join in a signle unit without the desires of the professional employees being de- termined in a separate vote. Accordingly, we find the following voting groups to constitute appropriate units within the meaning of Section 9(b) of the Act: Group A: All full-time and regular part-time so- cial workers classified as practitioners, excluding managerial employees, supervisors and all other employees. Group B: All full-time and regular part-time homemakers, maintenance employees, clericals, social work assistants, and social work associ- ates, excluding managerial employees, profes- sional employees, guards and supervisors as de- fined in the Act. We shall direct separate elections in voting groups A and B. The employees in group A will be asked two questions on their ballot: "I. Do you wish to be included in the same unit as other employees employed by the Employer at its Springfield, Massachusetts, facilities for the purposes of collective bargaining? "2. Do you desire to be represented for the pur- poses of collective bargaining by Local 509, Service Employees International Union, AFL-CIO?" If a majority of the professional employees in vot- ing group A vote yes to the first question, indicating their desire to be included in a unit with the nonpro- fessional employees, they will be so included. Their votes on the second question will then be counted with the votes of the nonprofessional employees vot- ing in Group B to decide the representative for the entire combined bargaining unit (professionals and nonprofessionals). If, on the other hand, a majority of the professional employees in voting group A do not vote for inclusion, they will not be included with the nonprofessional employees and their votes on the second question will then be separately counted to decide whether or not they wish to be represented by the Petitioner in a separate professional unit. Our ultimate determination is based in part upon the results of the elections. However, we make the following findings in regard to the appropriate unit: 1. If a majority of the professional employees vote for inclusion in a unit with the nonprofessional em- ployees, we find that the following employees will constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act: All full-time and regular part-time employees of the Employer at its Springfield, Massachusetts, facilities, excluding managerial employees, guards and supervisors as defined in the Act. 2. If a majority of the professional employees do not vote for inclusion in the unit with nonprofession- al employees, we find the following two units to be appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: Unit A: All full-time and regular part-time social workers classified as practitioners at the Employer's Springfield, Massachusetts, facili- ties, excluding managerial employees, supervi- sors, and all other employees. Unit B.: All full-time and regular part-time homemakers, maintenance employees, clericals, social work assistants, and social work associ- ates, at the Employer's Springfield, Massachu- setts, facilities, excluding managerial employees, professional employees, guards, and supervisors as defined in the Act. [Direction of Elections and Excelsior footnote omitted from publication.] CHAIRMAN MURPHY, dissenting: I do not agree with my colleagues that the Board should assert jurisdiction over this Employer. The majority takes jurisdiction in this case on the basis that "the Employer's homemaker operations are similar to those of Visiting Nurses Association over which we have asserted jurisdiction and applied a $100,000 standard." This rationale ignores, howev- er, a basic distinction between visiting nurses associ- ations and counseling or homemaker services: vis- iting nurses associations, unlike this Employer, provide medical services and are health care institu- tions within the meaning of Section 2(14) of the Act. Inasmuch as in my view the Employer's provision of housekeeping and counseling services is not suffi- cient to bring it under the definition of health care institution, I believe this case is controlled by Ming Quong Children's Center, 210 NLRB 899 (1974). In that decision the Board majority declined to assert jurisdiction over a home for emotionally troubled children and established a policy that jurisdiction would not be exercised over a "nonprofit institution" whose activities are noncommercial in nature and are intimately connected with the charitable purposes of the institution. Although this policy may be modified with respect to health care institutions by the advent of the new health care amendments to the Act, I be- lieve it is still soundly applied to other nonprofit or- ganizations. Accordingly, I dissent from my col- leagues' assertion of jurisdiction in this case.