Catholic Community Services

CATHOLIC COMMUNITY SERVICES Catholic Community Services' and District 119-J, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, Petitioner. Case 22-RC-8269 January 26, 1981 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Mitchell Schley. 2 Pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by the direction of the Regional Director for Region 22, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer and Peti- tioner 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 rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer, Catholic Community Services, is a nonprofit corporation organized under the laws of the State of New Jersey with its principal office located at One Sumner Avenue, Newark, New Jersey. It is engaged in providing health, social, and related services such as mental health services, adoption programs, drug detoxification, and ser- vices for the aging and recent immigrants, from 26 locations in four counties of New Jersey. During a recent 12-month period, Catholic Community Ser- I The name of the Employer appears as amended at the hearing. a The Employer had moved o dismiss the petition on the grounds, inter alia, that the petition was filed within 6 months of the dismissal of the petition in Catholic Community Services. Case 22-RC-7941. reported at 247 NLR No. 103 (1980), and that the showing of interest was taint- ed by the participation of supervisors in the Petitioner's organizational campaign. We deny the motion to dismiss on both grounds First, the pe- tition in Case 22-RC-7941 was dismissed because the unit petitioned for was not appropriate. Accordingly, there is no 6-month period of preju- dice and no bar to the filing of the petition in the matter herein Second, the Regional Director considered evidence proffered by the Employer in support or its claims that the showing of interest was tainted and found no merit to this contention. The Employer has appealed the Regional Di- rector's decision in this matter. Although the Employer submitted evi- dence that alleged supervisors, along with unit employees, signed a letter endorsing the need for a union. and that an alleged supervisor sat at Peti- tioner's counsel table during the representation hearing, there is no evi- dence that supervisors participated in the solicitation of the showing of interest. The Employer's appeal is denied 254 NLRB No. 90 vices realized revenues in excess of $1 million and received revenues in excess of $50,000 from the Federal Government. During this same period it purchased goods valued in excess of $50,000 from companies located inside the State of New Jersey, who, in turn, directly purchased goods in excess of $50,000 from companies located outside the State of New Jersey. The Employer contends that Congress never in- tended the Board to exercise jurisdiction over reli- gious or nonprofit institutions of the nature of Catholic Community Services and that exercise of jurisdiction herein would contravene the first amendment. This issue was considered in Catholic Community Services, 247 NLRB No. 103 (1980), in- volving the same Employer, wherein the Board as- serted jurisdiction over Catholic Community Ser- vices. The Employer adheres to its previous argu- ments, and the parties have agreed to incorporate certain portions of the record in the previous case as it relates to the jurisdictional issues. For the rea- sons set forth in Catholic Community Services, 247 NLRB No. 103 (1980), we find that it would effec- tuate the policies of the Act to assert jurisdiction herein. The Employer's motion to dismiss the peti- tion on this ground is hereby denied. 2. Petitioner is a labor organization within the meaning of the Act seeking to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employ- er within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks a unit of professional and non- professional employees in the Hudson County Di- vision of the Employer. The Employer contends that it is a comprehensive, integrated organization serving four contiguous counties with identical programs and that any appropriate unit must be co- extensive with the geographic area within which Catholic Community Services operates. In addi- tion, the Employer contends that the proposed Hudson County unit is inappropriate since there are other locations within the county which are part of the Employer's operations but which are not included in the proposed unit and because there are employees of Catholic Community Ser- vices, not included in the unit, who perform ser- vices in Hudson County. Catholic Community Services is organized into five divisions, four of which cover four respective New Jersey counties. The fifth division, special ser- vices, is nongeographic and includes specialized services such as the Campaign for Human Devel- opment, the Apostolate for the Retarded, the Apostolate for the Deaf, Religious Education for 763 DECIISONS OF NATIONAL LABOR RELATIONS BOARD the Deaf, Council for the Elderly, Office of Pro- Life, Office of Housing Services, and Migration and Refugee Resettlement. The Employer main- tains executive and administrative offices in Newark, New Jersey, where support services such as personnel, public relations, fund development, public affairs, planning, and evaluation are carried out. Each of the four county divisions is headed by a county director and offers a variety of social and mental health services at multiple locations in each county. These services include mental health clin- ics, day care centers, post-hospitalization programs, special education facilities, programs for the elderly and handicapped, etc., although the four counties do not offer an identical range of services. Petition- er seeks to represent employees at the following Hudson County, New Jersey, locations: Mt. Carmel Guild Mental Health Center, 249 Virginia Avenue, Jersey City; Mt. Carmel Guild Mental Health Center, 3201 Central Avenue, Union City; Special Education School, Henderson and York Streets, Jersey City; and Mercedarian Day Care Center, 291 Pacific Avenue, Jersey City. The re- maining facility in the Hudson County Division is the Apostolate for the Retarded located at 99 Broadway, Jersey City. Since this program is con- cerned solely with religious education for the re- tarded, it is appropriate to exclude it from any unit. The primary issue here is whether or not em- ployees in the Hudson County Division share a suf- ficient community of interest to render the peti- tioned-for unit appropriate. Of particular concern is the Division's autonomy and independence in hiring, firing, evaluating, resolving grievances, and controlling other personnel matters for employees in the Hudson County Division. It is clear that all the employees in the unit sought are in the same administrative division, and all are supervised by County Director Thomas Catlaw. There is no his- tory of collective bargaining. All employees in the proposed unit work in the same distinct geographi- cal area. There is very little contact with employ- ees outside the proposed unit although certain spe- cialists (such as speech therapists) perform certain tasks in Hudson County. Transfers and interchange with employees outside Hudson County are negli- gible. Although the same basic job classification scheme applies to all divisions, the record indicates that the actual tasks performed by persons holding these positions are not identical, but are adapted to the particular needs of the local facility. The Employer argues that the terms outlined in the personnel manual are applicable throughout the agency and that the salary scale and job descrip- tions are uniform for all Divisions, thereby support- ing the conclusion that there is centralized control of labor relations with uniform implementation and application. However, an examination of the rel- evant documents, the testimony relating thereto, and the record as a whole reveals that, as a practi- cal matter, personnel functions are handled by County Director Thomas Catlaw or others under his supervision. First, Catlaw, as a division direc- tor, serves on the executive council and partici- pates in formulating labor relations and other poli- cies governing all employees. Second, the central administrative offices of the Employer are approxi- mately 12 miles from any of the Hudson County offices, rendering it unlikely that there is any day- to-day control of labor relations at a level higher than the Division. In addition, the county director or those under his supervision have broad discre- tion in a number of personnel matters. For exam- ple, interviewing and hiring normally take place on a program level with initial contacts and recom- mendations made by those with whom the poten- tial employee would eventually work. Although all hiring decisions must be given official approval by the executive offices, we agree with the Petitioner that this action is ordinarily a mere formality with the effective decisions being made within the county division. Similarly, annual evaluations are drafted by those persons having direct contact with the affected employee, with a pro forma review by those at a higher level. Catlaw himself testified that he would not alter an evaluation but would only discuss the matter with the evaluator and then only if he strongly disagreed with the evaluation. As a practical matter, basic personnel concerns involv- ing work assignments, complaints, hiring, promo- tions, and evaluations are handled at the program level. Hours of work, excuse from tardiness, salary advances, overtime, compensatory time, leaves of absence, vacation scheduling, attendance at profes- sional meetings, and a host of other basic personnel matters are handled by supervisors, department heads, or the county director. Finally, although there is a central personnel office at the Employer's headquarters, it is an administrative function only, with responsibility for maintaining personnel re- cords, processing merit increases, monitoring em- ployee benefits, handling employee inquiries, ad- vertising for positions, and processing unemploy- ment and other claims, etc. Thus, although the Employer strives to achieve a certain uniformity with regard to labor policies for its various and farflung operations, the record indicates that there is a high degree of autonomy and independence at the division level, and that employees in the Hudson County Division share a sufficient community of interest. Accordingly, we 764 CATHOLIC COMMUNITY SERVICES find that the Employer has not established that the unit petitioned for is inappropriate. Petitioner contends that certain employees who are members of religious orders do not share a community of interest with the unit employees and should be excluded, while the Employer takes a contrary position. Those employees who are mem- bers of religious orders are subject to the same terms and conditions of employment as other em- ployees, receiving the same rates of pay, perform- ing the same job functions, and being subject to the same personnel policies.3 Some of the employees who are members of a religious order receive part of their compensation in the form of living ex- penses since they reside in the same building which the Employer rents for one of its day care centers. While no Federal taxes are withheld from the sala- ries of certain order members, the record indicates that this arrangement results from the policies of the Internal Revenue Service rather than any spe- cial treatment by the Employer. There is no special relationship between the Employer and the orders to which certain employees belong, although at least one of the orders involved voluntarily makes charitable contributions to Catholic Community Services. The record indicates that the employees who are members of religious orders share a com- munity of interest with the unit employees and will be included and eligible to vote, D'Youville College, 225 NLRB 792 (1976); Saint Anthony Center, 220 NLRB 1009 (1975); cf. Seton Hill College, 201 NLRB 1026 (1973). Petitioner further contends that the C.E.T.A.4 employees do not share a community of interest with the unit employees and, thus, should be ex- cluded from the unit and ineligible to vote. The Employer's position is that these employees should be included in any unit found appropriate. The record indicates that the C.E.T.A. employees are employed in the same classifications as the other Catholic Community Services employees, that they are interviewed for employment in the same manner as unit employees, are subject to the same policies and discipline, receive the same salaries and fringe benefits, and otherwise function as unit employees, subject to the same terms and condi- tions of employment, without interference or con- trol from C.E.T.A. officials. The goal of this pro- gram is to provide full-time positions without C.E.T.A. funding at the end of an 18-month period, and Hudson County Director Thomas Catlaw testified that five or six employees in the C.E.T.A. program have, in fact, continued their 3 Certain order members do not, however, participate in the pension plan. ' Comprehensive Employment and Training Act employment with the Employer after the expiration of their C.E.T.A. eligibility. On the basis of the foregoing and the entire record, we find it appro- priate to include C.E.T.A. employees in the unit. Rosemont Center, 248 NLRB 1322 (1980); Evergreen Legal Services, 246 NLRB 964 (1979). Contrary to the Petitioner, the Employer con- tends that Mary Freeman and Stephanie Stein are supervisors within the meaning of the Act. 5 Direc- tor Thomas Catlaw testified that Freeman has re- signed her position and that it is undecided wheth- er the responsibilities of the position will remain unchanged. Thus, we find it unnecessary to deter- mine whether Freeman possessed the indicia of su- pervisory status as defined in the Act. Stein is a case manager in the Transitional Care Program in Union City. She oversees, on behalf of the Employer, a joint program with St. Mary's Hospital located at the Trenton State Hospital. The program involves Stein, another case manager em- ployed by St. Mary's, two cases aides employed by Catholic Community Services, and two cases aides employed by St. Mary's. Stein and the other case manager are jointly responsible for the program which operates at the Trenton site 2 days a week. The Employer contends that Stein responsibly dir- ects caseworkers and has the authority to make recommendations regarding hiring, discipline, and evaluations. Stein is present at the Trenton site I day a week for approximately 3 hours during which time she is involved with decisions regard- ing the future placement of patients in the Transi- tional Care Program and is not normally in the presence of the case aides. Stein described her role as that of a "resource person" for the aides because of her training and experience. She assigns case- workers their responsibilities and insures that they are performing the tasks required, redefining their roles, if necessary. Stein's duties also include making arrangements for transportation of the staff to Trenton, planning the activities to be carried out at the hospital, seeing that the time is well utilized, assigning staff to develop certain activities, assuring that the proper forms are filled out upon the aides' return to the center, and consulting with the aides and advising them on further work to be done with clients. Requests for time off, vacation scheduling, and similar personnel actions are referred to Jeff Kahn. Stein does not have authority to alter the Trenton Hospital program as evidenced by her un- " The Employer stated at the hearing, contrary to Petitioner, that Sr Mary John, Sr Terrigina, and Janet Vargas are supervisors. Since Sr Mary John arid Sr Terrigina are employed in positions which are not in- cluded in the unit. we find it unnecessary to determine their status The Employer does not discuss Vargas' resxponsibilities in its brief. and there is nothing in the record to indicate that she is a supervisor \Vargas is, therefore, included in the unit and eligible to votre 765 DECIISONS OF NATIONAL LABOR RELATIONS BOARD heeded suggestions for changes in the program. While it is clear that Stein, on the basis of her training and experience, enables the case aides to carry out the program at Trenton State Hospital, and that she participates in the evaluation and in- terviewing process, Stein does not have or exercise the requisite authority to make effective recom- mendations with regard to hiring, firing, granting time off, or other personnel matters. On the basis of the foregoing and the entire record, we conclude that Stein does not possess the indicia of supervisory status as set forth in Section 2(11) of the Act. Stein is therefore included in the unit and eligible to vote. In accordance with the above findings and the record as a whole, we find that the following unit may constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All full-time and regular part-time employees, professional and nonprofessional, including psychiatrists, psychologists, social workers, vo- cational rehabilitation counselors, teachers, nurses, counselors, administrative assistants, aides, and employees in the classifications of secretary, maintenance, janitor, and clerical, employed by the Employer at the following locations: Mount Carmel Guild Mental Health Center, 249 Virginia Avenue, Jersey City, New Jersey; Mount Carmel Guild Mental Health Center, 3201 Central Avenue, Union City, New Jersey; Special Education School, Henderson and York Streets, Jersey City, New Jersey; Mercedarian Day Care Center, 291 Pa- cific Avenue, Jersey City, New Jersey; but ex- cluding managerial employees, guards and su- pervisors, as defined in the Act, and all other employees. The unit set out above includes professional and nonprofessional employees. However, the Board is prohibited by Section 9(d)(1) of the Act from in- cluding professional employees in a unit with em- ployees who are not professionals unless a majority of the professional employees vote for inclusion in such a unit. Accordingly, the desires of the profes- sional employees as to inclusion in a unit with non- professional employees must be ascertained. We shall therefore direct separate elections in the following voting groups: Voting Group (a): All full-time and regular part-time non- professional employees, including adminis- trative assistants, aides, and employees in the classifications of secretary, maintenance, janitor and clerical, employed by the Em- ployer at the following locations: Mount Carmel Guild Mental Health Center, 249 Virginia Avenue, Jersey City, New Jersey; Mount Carmel Guild Mental Health Center, 3201 Central Avenue, Union City, New Jersey; Special Education School, Hender- son and York Streets, Jersey City, New Jersey; Mercedarian Day Care Center, 291 Pacific Avenue, Jersey City, New Jersey; but excluding psychiatrists, psychologists, social workers, vocational rehabilitation counselors, teachers, nurses, counselors, managerial employees, guards and supervi- sors as defined in the Act, and all other em- ployees. Voting group (b). All full-time and regular part-time profes- sional employees, including psychiatrists, psychologists, social workers, vocational re- habilitation counselors, teachers, nurses, and counselors employed by the Employer at the following locations: Mount Carmel Guild Mental Health Center, 249 Virginia Avenue, Jersey City, New Jersey; Mount Carmel Guild Mental Health Center, 3201 Central Avenue, Union City, New Jersey; Special Education School, Henderson and York Streets, Jersey City, New Jersey; Mer- cedarian Day Care Center, 291 Pacific Avenue, Jersey City, New Jersey; but ex- cluding administrative assistants, aides, em- ployees in the classifications of secretary, maintenance, janitor and clerical, managerial employees, guards and supervisors, as de- fined in the Act, and all other employees. The employees in the nonprofessional voting group (a) will be polled to determine whether or not they wish to be represented by Petitioner. The employees in voting group (b) will be asked two questions on their ballot: (1) Do you desire the professional employees to be included in a unit composed of all pro- fessional employees and nonprofessional em- ployees of the Employer for the purposes of collective bargaining? (2) Do you desire to be represented for the purpose of collective bargaining by District 1199-J, National Union of Hospital and Health Care Employees, RWDSU, AFL- CIO? If a majority of the professional employees in voting group (b) vote "yes" to the first question, indicating their wish to be included in a unit with nonprofessional employees, they will be so includ- 766 CAiTHOI lC COMMUNITY SERVICES ed. Their vote on the second question will then be counted together with the votes of the nonprofes- sional employees. If the professional employees in voting group (b) vote against inclusion, they will not be included with the nonprofessional employ- ees. Their votes on the second question will then be separately counted to determine whether or not they wish to be represented by Petitioner. There is no indication in this record that Petitioner would be willing to represent the professional employees separately if those employees vote for separate rep- resentation. However, if Petitioner does not desire to represent the professional employees in a sepa- rate unit even if those employees vote for such rep- resentation, Petitioner may notify the Regional Di- rector to that effect within 10 days of the date of this Decision and Direction of Election. The unit determination is based, in part, then, upon the results of the election among the profes- sional employees. However, we now make the fol- lowing findings in regard to the appropriate unit: 1. If a majority of the professional employees vote for inclusion in a unit with nonprofessional employees, the following will constitute the unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employ- ees, professional and nonprofessional, including psychiatrists, psychologists, social workers, vo- cation rehabilitation counselors, teachers, nurses, counselors, administrative assistants, aides, and employees in the classifications of secretary, maintenance, janitor, and clerical, employed by the Employer at the following locations: Mount Carmel Guild Mental Health Center, 249 Virginia Avenue, Jersey City, New Jersey; Mount Carmel Guild Mental Health Center, 3201 Central Avenue, Union City, New Jersey; Special Education School, Henderson and York Streets, Jersey City, New Jersey; Mercedarian Day Care Center, 291 Pa- cific Avenue, Jersey City, New Jersey; but ex- cluding managerial employees, guards and su- pervisors as defined in the Act, and all other employees. 2. If a majority of professional employees do not vote for inclusion in the unit with nonprofessional employees, the following two groups of employees will constitute separate units appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b)(of the Act: Unit (a): All full-time and regular part-time non- professional employees, including adminis- trative assistants, aides, and employees in the classifications of secretary, maintenance, janitor and clerical, employed by the Em- ployer at the following locations: Mount Carmel Guild Mental Health Center, 249 Virginia Avenue, Jersey City, New Jersey; Mount Carmel Guild Mental Health Center, 3201 Central Avenue, Union City, New Jersey; Special Education School, Hender- son and York Streets, Jersey City, New Jersey; Mercedarian Day Care Center, 291 Pacific Avenue, Jersey City, New Jersey; but excluding psychiatrists, psychologists, social workers, vocational rehabilitation counselors, teachers, nurses, counselors, managerial employees, guards and supervi- sors as defined in the Act, and all other em- ployees. Unit (b). All full-time and regular part-time profes- sional employees, including psychiatrists, psychologists, social workers, vocational re- habilitation counselors, teachers, nurses, and counselors employed by the Employer at the following locations: Mount Carmel Guild Mental Health Center, 249 Virginia Avenue, Jersey City, New Jersey; Mount Carmel Guild Mental Health Center, 3201 Central Avenue, Union City, New Jersey; Special Education School, Henderson and York Streets, Jersey City, New Jersey; Mer- cedarian Day Care Center, 291 Pacific Avenue, Jersey City, New Jersey; but ex- cluding administrative assistants, aides, em- ployees in the classifications of secretary, maintenance, janitor and clerical, managerial employees, guards and supervisors as de- fined in the Act, and all other employees. [Direction of Election and Excelsior footnote omitted from publication.] 767