Mount St. Joseph's Home for Girls

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roman Catholic Orphan Asylum of San Francisco, d/b/a Mount St. Joseph's Home for Girls and Social Services Union, Local 535, SEIU, AFL-CIO, Petitioner. Case 20-RC-13569 December 17, 1976 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 Lawrence W. Hanson of the National Labor Relations Board. Following the close of the hearing the Regional Director for Region 20 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs in support of their respective positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its authority 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 affirmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer (hereinafter also referred to as the Mount) is a nonprofit corporation which operates a licensed child welfare facility for the residential care of neglected, dependent, or abused children ranging in age from 6 to 18. The facilities involved herein consist of six group homes, five of which are used to provide long term shelter while the sixth, Shalom House, is an emergency care shelter. To carry on its function, the Mount employs at each home, including Shalom House, senior counselors, child care workers, housekeepers, and cooks. The senior counselors at each home and the director of the Shalom House function in a supervisory capacity as stipulated to by the parties and as such are considered supervisors under the Act. The Employer contends that its operations are so intimately connected with the operations of the county of San Francisco, an exempt employer under the Act, that the Board should find that the Employer shares the county's exemption from the Act's provi- sions. The Employer further contends that, inasmuch as its activities are entirely local and have virtually no i Counsel for Petitioner, by letter dated November 9, 1976, requested that the Board take official notice of the transcript in Case 20-RC-13796, which involved the same parties and in which a hearing was held on October 29, 1976 In view of our decision herein, we find it unnecessary to do so 227 NLRB No. 64 impact on commerce, the Board has no jurisdiction over it.' The exempt status issue raised by the Employer here was similarly raised in the recent Board decision in Boys and Girls Aid Society of San Diego, Ltd, 224 NLRB 1614 (1976). The facts in that case are strikingly similar to those found here. In Boys and Girls Aid Society the employer was also a nonprofit organization engaged in providing residential treat- ment for emotionally disturbed children. Approxi- mately 95 percent of its residents were referred to it by the county welfare agency and probation depart- ment with the county paying the monthly fees to the employer for its care of each of these children. The county, however, did not exercise any control over the employer's labor relations, wages, hours, and conditions of the Society's (employer's) employees. In the present case, most of the children placed at the Mount are referred there by the County Social Services Agency. The county, under an agreement with the Mount, pays an established fee for the care of the girls at the Mount. As in Boys and Girls Aid Society, however, the county has no control over the Employer's labor relations or the wages, hours, and conditions of its employees. We find, as we did in Boys and Girls Aid Society, that the mere fact that county agencies refer and pay for the care of most of the Mount's residents is not, in and of itself, sufficient to establish that the county's and Mount's operations are so interconnected as to entitle the Employer to share the county's exemption from the Act. We therefore find that the Mount is an employer within the meaning of the Act. The Employer's contention that the Board other- wise lacks statutory and discretionary jurisdiction over it is without merit. The record shows that the Employer's annual income for the 1975-76 fiscal year was $823,540. Approximately $617,000 of this total was derived from Federal, state, and county funds. Of the remaining $206,000, $55,000 came from the United Way, $6,780 came from nuns working at the Mount, $48,000 came from other charities, and $96,000 came from the Mount's investment program. Since the Employer's gross annual revenues far exceed the $250,000 discretionary jurisdictional stan- dard we have established for institutions engaged in the specialized care and custody of children,2 we find that it meets our discretionary jurisdictional stan- dards. Furthermore, the record shows that the Employer paid $30,772.63 to Pacific Gas and Electric Company for utility service and over $9,000 to Pacific Telephone Company for telephone service. The 2 The Rhode Island Catholic Orphan Asylum a/k/a St Aloysius Home, 224 NLRB 1344 (1976); Boys and Girls Aid Society of San Diego, Ltd., 224 NLRB 1614 (1976); Catholic Social Services, 225 NLRB No 45 (1976). MT. ST. JOSEPH'S HOME FOR GIRLS Employer's payments to these entities which are in interstate commerce establish the statutory jurisdic- tion of the Board over the Employer.3 Accordingly, we conclude that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved 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. Although the parties have stipulated that a unit of child care workers and night supervisors 4 (which includes the senior counselor at Shalom House) would be an appropriate unit, there is disagreement as to which of the Employer's homes would be included in the unit. The Petitioner seeks to have included in one unit all of the Employer's homes. The Employer, however, contends that each of its homes constitutes a separate and distinct unit for the purpose of collective bargaining; or, in the alterna- tive, if the latter position is not acceptable, then the Employer urges that there be two separate units consisting of the five group homes as one and Shalom House as the other unit. In determining whether a particular unit is appro- priate, the Board has established certain criteria to which it looks. Among the principal factors consid- ered are the similarity of duties, skills, wages, and working conditions of the employees. In addition, the Board looks to any similarity of fringe benefits and common supervision. The record here indicates that the employees at all of the homes have the same overall supervision and all employees are subject to the same labor relations and personnel policies. All of the Employer's child care workers are paid according to the same pay scale, receive the same health and welfare benefits, the same vacation leave, the same holiday pay, and 405 are all subject to the same sick leave policy, break policy, and meal policy. Employees are often inter- viewed first by the Mount's administrative office and personnel are essentially hired by the Mount's main office before being placed at one of the homes, i.e., Shalom House. Documentary evidence submitted indicates that final approval concerning the hiring of new employees rests with the Mount's administrator and not with the directors or supervisors of the homes. The record further shows that employees occasionally transfer from home to home depending on existing vacancies, and they all attend the same training conferences and sessions. We find, based on the foregoing facts, that there is a community of interest which binds all employees of the different homes and which renders them a homogeneous group. Accordingly, we find the following unit to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All child care workers and night supervisors employed by Roman Catholic Orphan Asylum of San Francisco d/b/a Mount St. Joseph's Home for Girls at its various homes, excluding housek- eepers, cooks and all other employees and supervi- sors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] CHAIRMAN MuRPi-ry, dissenting: I would decline to assert jurisdiction for the reasons set forth in the dissenting opinions in The Rhode Island Catholic Orphan Asylum a/k/a St . Aloysius Home, 224 NLRB 1344 (1976), and Child and Family Service of Springfield, Inc., 220 NLRB 37 (1975). For that reason, I find it unnecessary to reach the unit question presented. 3 Catholic Social Services, supra, fn. 4. 4 "Night supervisors" do not possess authority which renders them supervisory within the meaning of the Act