Robinson Developmental Center

ROBINSON DEVELOPMENTAL CENTER Citizen Care, Inc., d/b/a Robinson Developmental Center and Nursing Home and Hospital Employees' Union, Local 434, Laundry and Dry Cleaning Inter- national Union, AFL-CIO, Petitioner. Case 6-RC- 7445 November 8, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on May 6 and 11, 1976, before Hearing Officer Charles H. Saul. Following the hear- ing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 6 transferred this case to the National Labor Relations Board for decision. Thereafter, the Employer and the Petitioner 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 no prejudi- cial error was committed) They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: The Employer, Citizen Care, Inc., d/b/a Robinson Developmental Center,' is a nonprofit Pennsylvania corporation engaged in the operation of a residential facility for the care and treatment of mentally retard- ed and handicapped persons. The Petitioner seeks to represent separate units of technical employees, in- cluding licensed practical nurses and physical thera- py aides, and service and maintenance employees, consisting of various occupations.' Citing its connec- tions with Polk State School and Hospital, an exempt employer,4 as well as other relationships with the Commonwealth of Pennsylvania, Employer asserts that the Board should decline jurisdiction. We find this contention meritorious. 1 The Hearing Officer precluded testimony on the issue of whether Sam Begler's positions with the International Union of Laundry and Dry Clean- ing Workers, AFL-CIO, and with the Commonwealth of Pennsylvania, create a conflict of interest such that Petitioner should not be permitted to represent the petitioned-for employees in light of our declination of,juns- diction here, we find it unnecessary to determine if the Hearing Officer's ruling constituted prejudicial error 2 Employer is occasionally referred to herein as the Center 3 The parties stipulated as to the appropriateness of the units sought 4 The parties stipulated that Polk State School and Hospital is not subject to the Board's jurisdiction. 817 The impetus behind the Center's incorporation in 1974 was the overcrowded conditions at Polk. Polk, a state school and hospital for the residential care and treatment of the mentally retarded, is operated by the Pennsylvania Department of Public Welfare,' pursuant to the Mental Health, Mental Retardation Act of 1966.6 Concerned that the overcrowding at Polk was affecting the quality of care, the DPW re- quested that a separate nonprofit corporation be cre- ated which would contract with the Department for the maintenance and care of mentally retarded and handicapped persons.' At its inception in 1974, the Employer entered into a contract with the DPW which evidences the inter- locking relationship between the Center and Polk. Under the contractual arrangement, all of the Center's residents are referred by Polk.' The contract further specifies that the number of patients referred by Polk is not to exceed 132. Discharges are also controlled by Polk. The only authority to discharge a patient from the Center reposes in the superintendent of Polk .9 Although the Employer has its own board of direc- tors,10 it is apparent that Polk and the DPW also ex- ercise a very substantial role in other operational matters. For example, the Center's sole source of rev- enue is the funding provided by the DPW in accor- dance with the contract." The contract also estab- lishes a fixed-cost method of financing. Payments to the Center are limited to the actual costs incurred in accordance with the contract's budgeted costs." The Center thereby submits to Polk its monthly invoices and requests reimbursement for expenditures made during the preceding month.13 The Western Region Office of the DPW and Polk 5 Hereinafter referred to as DPW 6 Pa Rev Stat §4101, et seq (1966) 7 Polk has a capacity of approximately 1,800. For some time prior to September 1974, its residents numbered from 2,400 to 2,800 The contract acknowledges the inadequacy of Polk's facilities relative to the DPW's ability "to carry out its mandated functions." 9On one occasion , the Center attempted to seek a more appropriate resi- dential placement for one of its residents Polk and the Western Region of the DPW interceded and stated that the Center could not act without their approval In a letter dated February 25, 1976, the acting commissioner of mental retardation for the DPW warned the Center's administrator, Al Koester, that the discharge planning for any of the Center's residents "rests with the Superintendent of Polk since your facility is operated as an Annex and not as a Private Nursing Home " 10 The directors can neither be appointed nor removed by the State ii The original agreement, dated August 9, 1974, fixed a cost of $1,782,660 for the 12 months ending August 30, 1975 12 The chairman of Employer's board of directors, Dr Mulgrave , testified that the Center's expenditures cannot exceed the budget and any savings by the Center must be relinquished to the State 13 The nexus between the Center and Polk was illustrated by an amend- ment to their original contract , dated March 17, 1975 Because of a delay in commencing operations in the fall of 1974, it became apparent that the Center would not use its full budgetary appropriation for the initial term of the contract Polk, on the other hand , had exceeded its budgetary allot- ments As a result, $7,000, which had been allocated to the Center, was reallocated to Polk 226 NLRB No. 117 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also supervises the Center's program and personnel accountability. In exercising this prerogative, the DPW regulates the preparation of the Center's bud- getary submission. Because the Center is a line item in the DPW's annual budget for Polk, budget deli- berations for the Center involve representatives of Polk and of the DPW's Western Region. Adhering to DPW requirements, the Center's budget itemizes job titles, the number of workers in each position, the annual salary for each position, and the aggregate cost. In addition, the Center is required to specify the insured fringe benefits programs to be effective dur- ing the contract year and the amount to be spent on each. Only those programs approved by the DPW and identified in the contract can be maintained by the Center.14 It is apparent, therefore, that every cost-connected action considered by the Employer is controlled by the state-approved budget. For example, while the Center has done its own hiring, it has been required to conform to the staffing limitations of the budget. During the 1976 budgetary deliberations," the extent of the DPW's involvement was evidenced by its dis- approval of the Center's request for 106 resident care technicians, including 6 vacation substitutes.16 The DPW denied the 6 vacation substitutes and reduced the number of resident care technicians to 96. As a 14 Once approved, the schedule of benefits cannot be altered by Em- plorer 1 At the time of the hearing, the proposed budget for the July I, 1976, contract year was being considered 16 Resident care technicians constitute a majority of the employees in the requested service and maintenance unit, which was stipulated to in this proceeding result, revision and resubmission of the Center's pro- posed budget became necessary." Based on the foregoing and the record as a whole, we conclude that the DPW and Polk control and cir- cumscribe the labor relations and fiscal and adminis- trative policies of the Center to a degree which would preclude the Employer from engaging in meaningful collective bargaining. Rather, we are persuaded that the Center operates essentially as an annex to Polk," an exempt employer under Section 2(2) of the Act, and that it shares Polk's exempt status.19 Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. "The contract states that the Center's board of directors can make bud- get modifications of up to 10 percent within a budget category without state approval According to Dr Mulgrave, however, as a practical matter the Center's capacity to reallocate moneys between budget categories is ex- tremely limited For example, the Center could not hire additional workers within a given job classification so as to exceed the number specified in the contract 18 In a letter dated February 3, 1976, the acting superintendent of Polk instructed the Center's director on the procedures to be followed when deaths occur The letter begins "Since the residents in your facility are considered residents of Polk but residing in an Annex " In another letter, dated May 5, 1976, the DPW's regional director of management ser- vices advised the Center's administrator that certain medical assistance pro- cedures which apply to private facilities are not applicable to the Center The letter explains that the Center is not operating as a private skilled facility but rather "under contract as an annex to Polk State School and Hospital " Even the "Authorization to Operate a Facility." issued to the Center by DPW, identifies the facility and its location as "RORINSON DEVELOPMENTAL CEN TER-located at-Annex of Polk State School & Hospital, Clever Road, Mc- Kees Rocks, Pennsylvania " 19 See Teledyne Economic Development Company, 223 NLRB 1040 (1976)