Madison County Mental Health Center, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Madison County Mental Health Center, Inc. and Professional Guild of Ohio, Local 1960, Ameri- can Federation of Teachers, AFL-CIO, Peti- tioner. Case 9-RC-13188 November 10, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.I.O Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Mark W. Robbins on January 9 and 28, 1980. Following the hearing and pursuant to Section 102.67 of the Na- tional Labor Relations Board's Rules and Regula- tions, Series 8, as amended, this case was trans- ferred to the National Labor Relations Board for decision. Thereafter, the Petitioner and the Em- ployer 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 had 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: Petitioner seeks to represent employ- ees employed by Madison County Mental Health Center, Inc., hereinafter called the Employer, who are engaged in the provision of mental health serv- ices. The Employer contends that it is exempt from the Board's jurisdiction as a political subdivision of the State of Ohio. In NL.R.B. v. Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600 (1971), the Supreme Court approved the Board's interpre- tation of the jurisdictional exemption for "political subdivisions" as contained in Section 2(2) of the Act. Under this standard, political subdivisions are those entities that are either (1) created directly by the State so as to constitute departments or admin- istrative arms of the government, or (2) adminis- tered by individuals who are responsible to public officials or to the general electorate. The record demonstrates, and we find, that the Employer is an agency of Madison County t and is, thus, exempt from the Board's jurisdiction as a political subdivi- sion of the State of Ohio. I As stated below, the record also indicates that Franklin County. Ohio, through one of its agencies, has been instrumental. to some extent. in initiating the Employer and providing necessary administrative and ac- cnunting services. 253 NLRB No. 30 In 1967, pursuant to the requirements of chapter 340 of the Ohio Revised Code, a statutory mandate was created for the establishment of county Mental Health and Retardation Boards (hereinafter re- ferred to as 648 Boards). The purpose of these Boards is to provide community services for men- tally ill, mentally retarded, and emotionally dis- turbed persons. In order to carry out such func- tions, the state statute provides that such Boards shall arrange and implement working agreements with social agencies, enter into service contracts with mental health care providers, and if necessary provide a mental health or mental retardation fa- cility until such time as this responsibility can be assumed by another agency.2 The 648 Boards are further statutorily required to approve salary schedules for employees and consultants providing the primary mental health care service, prescribe the fees to be charged for services, and establish such rules and regulations as may be necessary to carry out their functions. 3 Such 648 Boards were, thereafter, established in Franklin County and Madison County. As provided in the state statute, the Madison County 648 Board is composed of nine members, one-third of whom are appointed by a state agency, and the remaining two-thirds are appointed by the commissioners of Madison County. The Southwest Mental Health Center (herein- after called Southwest), under the direction of the Franklin County 648 Board, was created to pro- vide mental health services for residents of Frank- The statute provsides, in reicvant par, that the 648 Boards shall (D) romote, arrange, and implement wrking agreements with social agencies. hoth public and private, and with educational and ju- dicial agencies; (E) Enter into contracts with state hospitals, other public agencies. arid ait h private or volunlary hospitals and other private or volun- tary nonprofit agcncies for the provision of mnental health and mental retardation service and facilities; (J) In the event a needed service cannot he provided by an existing public or private agency, directly operale a mental health or mental retardation facility until such time as this responsibility call be as- sumed by another agency ' The statute futher provides, in relevant part, that the h4. Boards shall: (11) Approve salary schedules for emplolees and consultants in agen- cies and facilities maintained and oiperated. i whole or in part. r by cont ract. under the directiln of the Board; (K) Prescribe fees to he charged fr services, notl to exceed the cost of the sers ice (M) Establish such rules and regulations or standards and perform such other duties as may be necessary or proper to carry out Chap- ter 340 of the Reised Code 25X MADISON COUNTY MENTAL. HEAITH CENTER, INC. lin County. 4 Between 1972 and 1978, the Madison County 648 Board arranged for the provision of such mental health services by Southwest for resi- dents of Madison County.5 In 1977, the Employer was created by the Madison County 648 Board, in conjunction with Southwest. The purpose of the Employer's separate incorpo- ration was to maximize input of Madison County citizens in the mental health services being pro- vided in the county.6 In 1978 the Employer com- menced operations and replaced Southwest as the immediate provider of such health care services. The Employer is the sole agency operating under the authority of the Madison County 648 Board. The Employer's executive director was hired by a committee of four individuals, including the chairman of the Madison County 648 Board. The Employer's job classification system, salary sched- ules, annual budget, and any modifications to that budget must be approved by the Madison County 648 Board. Due to the relatively small size of the Employer's operations, the Madison County 648 Board had required it to obtain administrative and fiscal support services from the Franklin County 648 Board and its Service Bureau, or from South- west. In particular, the Franklin County 648 Board Service Bureau has assumed control of the Em- ployer's purchasing and payroll functions. As a result, all moneys received by the Employer (in- cluding money from private sources) or expended on its behalf must be routed through this service bureau. The Madison County 648 Board further re- quires the Employer to participate in the Franklin County 648 Board's group life and group health in- surance plans. In addition, financial reports must be submitted by the Employer to the Madison County 648 Board on a monthly basis. The Madison County 648 Board has simplified its own operations by contracting with the Frank- lin County 648 Board to have the Franklin director serve as its director, and by adopting the guidelines established by the Franklin County 648 Board for operations under its jurisdiction. These guidelines include provisions for holidays, vacations, sick leave, and various other terms and conditions of employment for 648 Board employees. The guide- I The record does n specify the circunstances surrounding the cre- ation of the Southwest Menial lHealth Center It appears that the Madi- son County th4H Board might hase participated i the creation of his tor- ganlzation I Prior to this period, another organizalion had heen responsible fior mental health serices in Madison Count) 6 All rcsidents of M1 adison Count are cligihle for lemhbership stat us with the l-mphlo r., upiin the paymenlt of a 5 annu1l nienbhership fee Al the time lof the hearing there ucre 85 member, in the lE plolser or gali zatlon the imphlierr bilard if trustees, cleccled h those members ti- tending ati annual rleeting, hal, ocrall respoushihti for hlie imploss', operalions. sihject to the cnlrol exercised h the Nadison C(Olnnts r48 Board lines further state that the personnel policies of agencies under its jurisdiction are to be "generally consistent with those adopted by this Board." The Employer has adopted as its own the personnel handbook developed by Southwest for its employ- ees, which is consistent with the above guidelines.7 The Employer operates two facilities, with the primary site being located in a suite of offices in the Madison County Hospital, which is owned by the county. The hospital rents space to the Em- ployer and donates back to the Employer an amount equivalent to the rent. 8 A similar rental ar- rangement has been developed for a second facili- ty, Tyler House, owned by a private organization. The majority of the Employer's clients are referred to it from state institutions, and 80 percent of its funds are received from the state or Federal Gov- ernment. The remaining income comes from fees paid by insurance companies and clients, pursuant to fee schedules approved by the Madison County 648 Board. In light of the above evidence and the record as a whole, we find that the Employer is an agency of Madison County, and is, thus, exempt from the Board's jurisdiction as a political subdivision of the State of Ohio. 9 The Employer was created directly by the Madison County 648 Board, which is part of the government of Madison County, to fulfill Madison County's statutory obligation under sec- tion 340 of the Ohio Revised Code to provide mental health services. In addition, 80 percent of the Employer's funding is from governmental sources and its fee structure is subject to the ap- proval of the Madison County 648 Board; its main facility is owned by Madison County and is, in effect, donated to the Employer for its use; the 648 Board contracts for most of the Employer's admin- istrative and fiscal services, including payroll and purchasing; the 648 Board retains the authority to approve the Employer's budgets and any modifica- tions made to such budgets; and the Employer's labor relations are generally governed by the guidelines adopted by the Madison County 648 Board. It is clear from the foregoing that the Em- 7 Va;rialion het ccn he o plhbliations exist with rlepect to holida dates,. so Ihat the nlpl ser' facilities niay remain open more often Ihalr sOuld he the case uIder trect adherence to the guideline, H Ihi, procedulr apparentls has been de eloped due to hudgetary slalldalrds dselped Cfr stale ior Federal funding !' See-t ;octatr io r h , Deve/opmrentali Dodbled, 231 N RB 784 (1'77), in which we fiounId that an agenct created h .the r.ralilkll (i tllsN 48 Board as "rcallred direct d h, the Stale Rs idtt / imne / r th, 'tnall//r R taurded no/ /laum iton (C,'unlv /,. 230Q NI RB 1 ( 107 ,. relicd on hs Ihe PIlitlolICr. s dilstllnguhllhhbl as the ret.ord ,l1o. ed th.i thatl eliploser hadl het i eileunce prior Ilo tl itlepetnd. ent if arl. . lalie i,oll enlteil iI i, iperain.,m II , In l t i this , conclus.ioi. ke 1i, 111 ot On s tidr sslhctlhr tilts nliln. r ii a pollical mlhdlNllloi u lltider the sta.Id;Jrd that itf i1,illilllMl C 1tc Ins rlidlduls .,ho are res t lll e l to Iipuhi offi lals M h Tl' gel'I e11 to-- ItIlrt' Se fli ,h. 'uprra 259 DECISIONS OF NAI(IONAL. LABOR RELATIONS BOAkD ployer is a political subdivision of the State of Ohio, and that it is therefore exempt from the Board's jurisdiction under Section 2(2) of the Act. 0 As we have concluded that the Employer is exempt from coverage of the Act, we shall dismiss the instant petition. ORDER It is hereby ordered that the petition filed be, and it hereby is, dismissed. CHAIRMAN FANNING, dissenting: Contrary to my colleagues, I would assert juris- diction over the Employer's operation. In my judg- ment, the Board's decision in Resident Home for the Mentally Retarded of Hamilton County, Inc., 239 NLRB 3 (1978), is controlling herein. Initially, to determine whether an employer shares the exemption of undisputedly exempt gov- ernmental entities from jurisdiction under Section 2(2) of the Act, it is necessary to decide whether the exempt entities exercise such control over the labor relations policies of the employer as to pre- clude the employer from bargaining effectively over working conditions for its employees. Here, while acting within the general guidelines, policies, and procedures of the Madison County 648 Board, the Employer's executive director is in charge of the Employer's day-to-day operations and labor re- lations. The executive director hires and fires em- ployees without prior approval from either the Employer's board of trustees or the Madison County 648 Board. He determines the salary for all the employees within the salary ranges established '" Subsequent Io the hearing, the Employer filed a motion to open the record and/or to accept additional evidence This motion was filed for the purpose of presenting additional evidence to support the Employer's claim that it is exempt from the Board's jurisdiction. In view of our con- clusion that the Employer is exempt as a political subdivision under the present record, we deny the Employer's motion. Although the Employer also submitted to the Board a response to memorandum contra the motin to open the record and/or to accept ad- ditional evidence, no such memorandum was filed with the Board or in- cluded in the record transferred to the Board. In view of our denial of the Employer's underlying motion, we need not consider these additional matters by the Employer's board of trustees. All grievances concerning employee working conditions and com- plaints are handled by the executive director. Fur- ther, the executive director reports directly to the Employer's board of trustees. That board, as noted by my colleagues, is elected by private citizens having membership status in the Employer and is composed of private citizens of the county. Thus, the executive director reports not to public officials but to a private board of directors. Additionally, I am not satisfied that the Employ- er is exempt from the Board's jurisdiction as a po- litical subdivision of the State of Ohio. My col- leagues find that the Employer was created direct- ly by the State so as to constitute a department or administrative arm of the government. However, though the 648 Board contributed to the founding of the Employer, it did not directly create a de- partment or administrative arm of government. The Employer here succeeded the Southwest Mental Health Center as the provider of mental health services for citizens of Madison County. As my colleagues acknowledge, it is unclear as to what role was played by the Madison County 648 Board in the founding of Southwest. Though the 648 Board arranged to have the Employer replace Southwest, it did not seek to operate directly the mental health facility. The Employer, a nonprofit corporation, was organized by private citizens for charitable, religious, educational, and scientific pur- poses. Thus, although the 648 Board was instru- mental in the founding of the Employer, I do not find that any department or administrative arm of government was created. Finally, the substantial autonomy of the execu- tive director and the Employer's board of trust- ees-particularly their authority to determine the Employer's labor relations policies-demonstrates that the Employer is not administered by individ- uals who are responsible to public officials or to the general electorate. Finding the Employer not to be a political subdi- vision under Section 2(2) of the Act, I would assert jurisdiction and direct an election. 260O