Rouse Home

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commissioners of the Rouse Estate d/b/a Rouse Home and American Federation of State, County and Municipal Employees, AFL-CIO, Petitioner. Case 6-RC-7292 August 16, 1976 DECISION AND DIRECTION OF ELECTION By MEMBERS FANNING, JENKINS, PENELLO, AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Howard D. Neidig, Jr., on December 1, 1975. Following the hearing and pursuant to Section 102.67 of the Na- tional Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Region- al Director for Region 6, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Petitioner filed a brief. 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. The Board has considered the entire record in this case and hereby makes the following findings: 1. The Employer herein, also called the Rouse Es- tate, operates a nonprofit nursing home, herein also called the Home, for the sick and indigent of Warren County, Pennsylvania. The home was established in 1862 pursuant to a $93,000 bequest by Henry R. Rouse to the commis- sioners of Warren County, Pennsylvania, "for the use of the poor." That same year, the Pennsylvania legis- lature incorporated the commissioners of Warren County as the commissioners of the Rouse Estate.' In 1864 the legislature provided by statute for three directors of the nursing home to be elected by the citizens of Warren County and gave the directors the power to hire staff for the Home, determine the Home's financial needs, and appropriate tax reve- nues to fulfill these needs.2 Thereafter, in 1866, the office of director was abolished, and the commission- ers of the Rouse Estate, who by virtue of the 1862 act were the elected county commissioners, assumed all the powers and duties previously possessed by the directors.' The issue before us is whether, because the same i Act of 1862 "Incorporating Commissioners of Rouse Estate in Warren County," Sec 1 2 Act of 1864, "To provide for the Purchase of land, and the Erection of Buildings, For the Support and Employment of the Poor of Warren Coun- ty," Sess of 1864 J Act of 1866, "To Abolish the Office of Directors of Rouse Hospital of Warren County," Sess of 1866 individuals serve as commissioners of the Rouse Es- tate as well as commissioners of Warren County, Pennsylvania, the Employer is a "political subdivi- sion" within the meaning of Section 2(2) of the Act and is therefore exempt from the Board's jurisdic- tion. The Petitioner contends that the Rouse Estate is not a political subdivision and that the Board should assert jurisdiction. We find merit in this contention. The Board's standard for determining whether or not an entity is a political subdivision requires an inquiry into whether the entity (1) was created direct- ly by the State, so as to constitute a department or administrative arm of the government, or (2) is ad- ministered by individuals responsible to public offi- cials or the general public 4 because of their adminis- tration of the entity. In Natural Gas Utility District, supra, the Supreme Court held that the gas utility district alleged to be an employer within the Board's jurisdiction was an ex- empt political subdivision. In so concluding, the Court relied on its finding that the district was direct- ly administered by a board of commissioners who were appointed by an elected county judge and who were subject to removal procedures applicable to all public officials. Additionally, the Court emphasized that: (1) the district possessed the power of eminent domain and the power to subpena witnesses; (2) all property and revenues were exempt from all state, county, municipal, and Federal income taxes; (3) so- cial security benefits for district employees were vol- untarily paid rather than mandatory since the district was considered a political subdivision under the So- cial Security Act; (4) all district records were "public records," i.e., open for public inspection, and the district was required annually to reveal its financial condition; and (5) the state statute establishing the district referred to it as a "municipality or public co- operative" and enabled the legislature to delegate to the district all of the powers necessary for the accom- plishment of the latter's purposes. In the instant case, unlike Natural Gas Utility Dis- trict, the commissioners of the Rouse Estate possess neither the power of eminent domain nor the power to subpena witnesses. Although the commissioners of the Rouse Estate are elected officials, they are elect- ed to serve as county commissioners and occupy po- sitions as commissioners of the Rouse Estate only by virtue of statute. Indeed, it appears, as the Petitioner contends, that the statute provided for the county commissioners to serve as commissioners of the Rouse Estate merely as a mechanism to assure con- tinuity and succession in the directorship of the Home. ° N L R B v The National Gas Utility District of Hawkins County, Tennes- see, 402 U S 600 (1971) 225 NLRB No. 125 ROUSE HOME 921 The view espoused by the Petitioner is supported by the undisputed evidence in the record that the two roles of the commissioners are kept separate and in- dependent. Thus, meetings of the commissioners of the Rouse Estate are held at the Home and minutes of these meetings are maintained separately from county commissioners' meetings. Furthermore, the commissioners of the Rouse Estate are paid salaries for their services in that capacity separate from any compensation they may receive as county commis- sioners. Finally, it is clear that in their capacity as com- missioners of the Rouse Estate the county commis- sioners play no role in the hiring or firing of the nurs- ing home's employees. Rather, it appears that the day-to-day operation of the Home is directed not by the commissioners, but by an administrator who is not an elected official. It is also clear that the employees of the Rouse Estate are not subject to the same personnel policies as county employees and do not share the latter's terms and conditions of employment. Thus, the nurs- ing home's employees receive wage rates separate from county employees, the terms and conditions of their employment are determined solely by the nurs- ing home, and they do not receive any of the fringe benefits received by county employees. In addition, no county employees have ever been assigned to work at the Home nor has there been any exchange or intermingling of county employees with those em- ployed by the Rouse Estate. The Rouse Estate receives funds primarily from three sources: social security and pension checks re- ceived by the patients in the Home and direct pay- ments by the Pennsylvania Department of Welfare.' Between fiscal years 1964 and 1973 when operational expenses exceeded revenues, the county made contri- butions to cover the deficit, but it is undisputed that at no time have such expenditures for the Home been subject to approval by the voters of the county. Fur- thermore, in 1974 and 1975, the Home did not re- quest any county funds. On the basis of all the foregoing we find that the record evidence establishes that although the same individuals serve as commissioners of Warren Coun- ty and as commissioners of the Rouse Estate the two roles are kept separate and apart. We further find that the employees of the Rouse Estate are not coun- ty employees and that the Home is not administered 5 In 1962, the Rouse Estate was formally recognized by the Pennsylvania Department of Public Welfare as a private institution, and, consequently, became entitled to receive direct payments from the State for the care of its patients These payments were aimed at supplementing the difference be- tween the amount received by the Home from the patients and the actual cost of their care by a public official. Accordingly, we conclude that the Rouse Estate is not a political subdivision of the State of Pennsylvania but is an employer within the meaning of Section 2(2) of the Act. We therefore conclude that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved herein claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties at the hearing, we find that the following employees constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All non-professional employees including all full-time and regular part-time employees and office clerical employees employed by the Em- ployer at its Youngsville, Pennsylvania, facility; excluding confidential employees, registered nurses, and guards, other professional employ- ees and supervisors as defined in the Act. [Direction of Election omitted from publication.] 6 MEMBER WALTHER, dissenting: I disagree with my colleagues' assertion of jurisdic- tion over the Rouse Home. In my view, record evi- dence that elected commissioners of Warren County, Pennsylvania, also occupy the positions of commis- sioners of the Rouse Estate requires dismissal of the petition. The Rouse Home is a nonprofit residential nursing home for the sick and indigent of Youngsville, Penn- sylvania. It is operated by the Rouse Estate. Pur- suant to Henry R. Rouse's bequest to the commis- sioners of Warren County, the home was established in 1862 "for the use of the poor." Thereafter, in the same year, the Pennsylvania legislature enacted legis- lation incorporating the commissioners of Warren County as commissioners of the Rouse Estate. In 1864 the Pennsylvania legislature passed an act which provided for the general election of three di- rectors of the Rouse Home, and vested them with the authority to hire staff members 7 and to determine and satisfy the Home's financial needs, including the power to appropriate tax revenues.8 In 1866, the 6 [Excelsior footnote omitted from publication ] 7 Sec 3 of the 1864 act reads, in pertinent part "[t]he said directors shall have power to furnish employment for such as are able to work to appoint clerks, treasurers , stewards, matrons , physicians , surgeons, attorneys, and so forth 8 Sec 5 of the 1864 act reads, in pertinent part "[o]n or before the first of December each year [the directors shall] make out an estimate of the proba- ble expenses of the corporation, [and] shall take the necessary measures to Continued 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania legislature abolished the office of direc- tor. As a result, the commissioners of the Rouse Es- tate assumed all the powers and duties previously possessed by the directors. Since the commissioners of Warren County are, by virtue of the 1862 act, also the commissioners of the Rouse Estate, the effect of the 1866 act is to place the Rouse Home under the administration of county of- ficials. In my view, this fact makes the Rouse Home an exempt political subdivision of Warren County under Section 2(2) of the Act. In N.L.R.B. v. The Natural Gas Utility District of Hawkins County, Ten- nessee, 402 U.S. 600 (1971), the Supreme Court ap- proved the Board's test for determining whether an entity is a "political subdivision." It held that "politi- cal subdivisions" include entities which are adminis- tered by "individuals who are responsible to public offi- cials or to the general electorate." 9 In the instant case, the commissioners of the Rouse Estate are also commissioners of Warren County. Thus, they are not supply the means required to defray said expenses , and if the revenues, arising from the Rouse Estate be insufficient , they shall raise the requi- site amount by increasing their assessment for County purposes and shall pay it over as needed, by orders drawn on the County Treasurer " 9 402 U S at 605 only "responsible" to public officials, they are public officials. Moreover, as public officials they are re- sponsible to the general electorate and thus satisfy the second part of the test as well. It is clear to me that application of the Board's own standard to the facts of this case leads inescapably to a finding that the Rouse Home is an exempt political subdivision. Lending further support to this conclusion is the fact that the county commissioners have statutory authority to hire staff employees and to provide suf- ficient public revenues to maintain operation of the Home. Of particular significance is their power to appropriate tax revenues to fulfill the Home's finan- cial needs, thereby utilizing the county's taxing au- thority to subsidize the Home. For example, in order to comply with a 1974 directive from the Department of Labor and Industry of Pennsylvania for extensive physical improvements to be made on the Home, the commissioners of the Rouse Estate borrowed in ex- cess of $100,000 but repaid it by the use of county tax funds in their capacity as commissioners of Warren County. Accordingly, because I find that the commission- ers of the Rouse Home are "individuals who are re- sponsible to public officials or to the general elector- ate," I would dismiss the instant petition.