Mental Health Services-Erie County South East Corp. V

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mental Health Services-Erie County South East Corp. V and New York Council 66, AFSCME, AFL-CIO, Petitioner. Case 3-RC-6157 September 3, 1975 DECISION AND DIRECTION OF ELECTION 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 Raymond J. Ratajczak. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Pro- cedure, Series 8, as amended, and by direction of the Regional Director for Region 3, this case was trans- ferred to the National Labor Relations Board for de- cision. The Employer filed a brief in support of its position. 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 preju- dicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, including the Employer's brief, the Board finds: 1. The Employer, Mental Health Services-Erie County South East Corp. V, is a nonprofit corpora- tion organized under section 402 of the Not-For- Profit Corporation Law of the State of New York. The Employer is engaged in the business of organiz- ing, coordinating, monitoring, and performing men- tal health services in a designated geographical area within the county of Erie, State of New York. The Employer is party to a contract with the county which sets forth the functions to be performed and the consideration to be paid by the county for the performance of such services. The Employer fulfills its responsibilities by enter- ing into subcontracts with established organizations or groups on a consulting basis, dealing with such problems as alcoholism, narcotic addiction, mental stress, and also by setting up organizations to deal with such problems. In addition, the Employer coor- dinates and monitors the work of health agencies which do mental health work in the geographical area. The Employer may also directly perform men- tal health services itself where no other organization is available. Some of its mental health counseling may be on an individual or group basis, involving initial treatment, crisis intervention, and counseling individuals with longtime mental problems for the purpose of helping the individuals involved adjust to community, work, or family situations. Its staff con- sists mainly of social workers, who have done gradu- ate work in psychology and related fields and have had extensive work experience in the area of the care and treatment of the mentally ill, and supporting per- sonnel. Although the county of Erie has "ultimate control" over the Employer's activities, the relationship be- tween the parties is a contractual one, and their re- spective rights and obligations are spelled out in a written agreement. Except for overall guides and standards, the county does not have the authority to tell the Employer how to conduct its day-to-day op- erations. The Employer develops job descriptions for the various classifications of employees, interviews and hires its own employees, determines their starting sal- ary within an established range, develops its own program of fringe benefits, and has the sole power to discharge and discipline its employees. The Employer's executive director has the ultimate re- sponsibility of overseeing the work of the Employer and is not subject to direct supervision or control by the county. The only provision in its contract with the county relating to labor relations merely requires the Employer to furnish the county with the details of any collective-bargaining agreements negotiated. It is clear from the above that the Employer is a health maintenance organization devoted to the care of sick, infirm, or aged persons within the meaning of the new Section 2(14) of the Act, effective August 25, 1974, which enlarged our jurisdiction in the health field to include:' [A]ny hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person. [Emphasis supplied.] Moreover, we find that the services provided by the 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 Employer.2 We further find that the Employer 1 P L. 93-360, July 26, 1974 The instant petition was filed on October 9, 1974. 2 See Herbert Harvey, Inc., 171 NLRB 238, 240 (1968); cf Ohio Inns, Inc, 205 NLRB 528 (1973), Current Construction Corp., 209 NLRB 718 (1974). In asserting jurisdiction over this Employer , Member Fanning is not relying on 220 NLRB No. 18 MENTAL HEALTH SERVICES 97 exercised sufficient control over the wages, hours, and other conditions of employment of its employees to enable it to bargain effectively with the Union.' The Employer's gross revenues for 1974 were $234,000 and for 1975 will exceed $300,000. Approxi- mately $10,000 in goods and services purchased dur- ing the 1974 accounting period in connection with the Employer's functions came from sources located outside the State of New York. As the Employer's annual gross income for the current year will exceed the $250,000 jurisdictional standard established by the Board for health care fa- cilities, other than nursing homes and visiting nurse associations, and as it has a substantial inflow of ma- terials from outside of the State of New York, we find that the impact of the Employer's operation on commerce is sufficient to warrant assertion of juris- diction herein, and that it will effectuate the policies of the Act to do so.4 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. the Employer's lack of initimate connection with the county of Erie, but rather relies only on the Employer's degree of control over the working conditions of its employees which enables it to bargain effectively with the Union. See Member Fanning's dissenting opinion in Current Construction Corp, supra, and Rural Fire Protection Company, 216 NLRB No. 95 (1975) J See Yosemite Park and Curry Co., 172 NLRB 1740, 1741 (1968), Sis-Q Flying Service, inc., 197 NLRB 195, 197 (1972). 4 East Oakland Health Alliance, 218 NLRB No 193 (1975) 4. While the Petitioner and the Employer agree on the scope of the appropriate unit, they disagree as to the unit placement of "program directors." As the uncontroverted testimony in the record shows that "program directors" effectively participate in the in- terviewing and hiring of employees and use indepen- dent judgment in supervising, assigning, and direct- ing the work of unit employees, as well as having the authority to discipline and effectively recommend unit employees for promotion, we find that they are supervisors within the meaning of the Act and shall exclude them from the unit. Accordingly, we find that the following employees of the Employer at its Buffalo, New York, location constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All secretary-receptionists, secretaries, crisis counselors, and expeditors, employed at the Employer's Seneca Street office; excluding all program directors, executive secretary, executive director, controller, direct service manager, guards and supervisors as defined in the Acts [Direction of Election and Excelsior footnote omit- ted from publication.] 5 The Employer in its brief argues that the petition should be dismissed as it intends to subcontract out its direct services function "before the end of the calendar year," and it will maintain merely an administrative role No date certain was named and such contemplated change seems either specu- lative or dependent upon facts which are uncertain at present. We note that Employer has a present budget for at least I year for the employees in the appropriate unit Accordingly, we reject the Employer's contention See, e g, Federal Electric Corporation, Western Test Range, 157 NLRB 1130, 1133 (1966).