Florence Nightingale Nursing Home

National Labor Relations Board - Board Decisions

Apr 29, 1975

217 N.L.R.B. 601 (N.L.R.B. 1975)

FLORENCE NIGHTINGALE NURSING HOME
Charles E. Sigety d/b/a Florence Nightingale Nursing
Home ' and Local 1115, Joint Board, Nursing
Home & Hospital Employees Division,' Petitioner.
Cases 2-RC-16540, 2-RC-16541, and 2-RC-
16542
April 29, 1975
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Elbert F. Tellem.
Thereafter, the Regional Director for Region 2 trans-
ferred this proceeding to the National Labor Relations
Board for decision, pursuant to Section 102.67 of the
Board's Rules and Regulations, Series 8, as amended.
The Employer, Petitioner, and Intervenor 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed.
Upon the entire record in this case, including the
briefs of the parties, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to repre-
sent certain employees of the Employer.
3. By three separate petitions, Petitioner seeks to
represent in Case 2-RC-16540 all service and mainte-
nance employees employed by the Employer at the
latter's nursing home located at 1760 Third Avenue in
New York City (hereinafter Building 2), and in Cases
2--RC-16541 and 2-RC-16542, respectively, the regis-
tered nurses (RN's) and licensed practical nurses
(LPN's) employed at Building 2.
The Employer, since commencing operation of
Building 1 in 1967, has been a member of the Guild of
New York Nursing Homes, Inc., a multiemployer or-
ganization consisting of some 13 nursing homes in New
York City. Successive and separate collective-bargain-
ing agreements covering all service and maintenance
I
Employer's name appears as amended at the hearing.
2 On the basis of its collective-bargaining agreements with the Guild of
New York Nursing Homes, Inc, a multiemployer association of which the
Employer herein is a member , Local 144, Hotel, Hospital, Nursing Home
& Allied Services Union, SEIU, AFL-CIO, intervened in Cases
2-RC-16540 and 2-RC-16542 Local 144 intervened in Case
2-RC-16541 on the basis of an independent showing of interest
601
employees and all LPN's employed by the constituent
members of the multiemployer group have been signed
by the Guild and the Intervenor herein. The most re-
cent contracts of record, covering the two Guild units,
were scheduled to expire on November 30, 1974. The
RN's employed by members of the Guild are not cov-
ered by any collective-bargaining agreement and are
not represented by any labor organization.
In April 1972 Employer commenced construction of
a second nursing home, Building 2. At that time, be-
cause the Intervenor had agreed to train the basically
unskilled area residents, Federal funding was to be
made -available to the Intervenor through a Depart-
ment of Labor training consortium. In the expectation
that such Federal funding was forthcoming the Em-
ployer made commitments to local planning groups to
staff Building 2 with area residents. In the latter part
of 1973, Federal funding for the training consortium
was terminated for reasons not of record. According to
the Employer and the Intervenor, past-experience had
indicated that a high rate of personnel turnover could
be expected when large numbers of unskilled workers
were employed; thus, in their view, the Federal funding
cutoff, with the consequent inability of the Intervenor
to train the area residents, presaged substantially
higher initial operating costs. The Employer sought
"wage relief" from the Intervenor. In return for exten-
sion of the collective-bargaining agreement covering
the service and maintenance workers and LPN's at
Building 1 to those employees in the same job catego-
ries to be hired to staff Building 2, the Intervenor
agreed to modify, inter alia, the wage rates provided in
those agreements so that service and maintenance
workers and LPN's at Building 2 would initially re-
ceive lower wages than their counterparts in Building
1, with eventual parity to be achieved as Building 2
reached full operational capacity, which at that time
was projected to be November 1974.
Building 2 began partial operation in March 1974.
The service and maintenance employees and LPN's
there were paid less than their counterparts at Building
1. Some were also told that at Building 2 "there was no
union." On June 7, Petitioner filed the three petitions
herein. Simultaneously it filed charges against the Em-
ployer and the Intervenor alleging violations of Section
8(a)(1), (2), and (3) and Section 8(b)(1)(A) of the Act.
The Regional Director for Region 2 transferred the
instant proceeding to the Board to consider the validity
of the Employer's and Intervenor's contention that the -
service and maintenance employees and LPN's of
Building 2 constituted an accretion to the service and
maintenance unit and LPN unit covered by the mul-
tiemployer contracts, which, in turn, barred the peti-
tions herein. We find no accretion.
217 NLRB No. 106
602 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
At the time of the hearing in this case, Building 1,
a 407-bed skilled nursing home, employed approxi-
mately-287 service and maintenance employees and 37
LPN's. The Employer projected, at that time, that
upon reaching full operational capacity in November
1974, Building 2 would employ approximately 300
service and maintenance employees and 36 LPN's.
Given the substantially larger size of Building 2, the
Employer's projections would not appear to be over-
estimated. In addition, there is substantial evidence in
the record of the Employer's plans to build at least two
additional facilities in the vicinity of Buildings 1 and 2.
Although the record does not indicate the number of
employees that will be required to staff the additional
facilities, the Employer testified that upon completion
its "geriatric complex" would have some 2,500 beds in
its entirety, as opposed to the 407 beds for which Build-
ing 1 is currently licensed. Under these circumstances,
we believe it inappropriate to accrete the service and
maintenance employees and LPN's at Building 2 to the
existing group of employees represented at Building 1
without their having had an opportunity to determine
for themselves whether or not they wish to be repre-
sented by the contractual bargaining representative.3
3 See Melbet Jewelry Co, Inc., 180 NLRB 107, 109 (1969).
To accrete them would deny the Building 2 group, at
the minimum equal in number to the employee comple-
ment at Building 1, the right to select their own bar-
gaining representative. In addition, we believe the po-
tential effect of accreting this group would, in turn,
affect a much larger group of employees and deny them
their choice of representative as buildings projected for
the whole complex are completed.' Such considera-
tions mandate, in our view, a greater emphasis on the
statutory concept of free choice as exemplified in Sec-
tion 7 and in Section 9(b) of the Act.
As noted earlier, Petitioner has filed charges against
the Employer and the Intervenor alleging violation of
Section 8(a)(1),(2), and (3) and Section 8(b)(1)(A). We
therefore do not reach the unit questions presented
herein and shall remand this proceeding to the Re-
gional Director for Region 2 for further appropriate
action consistent with our determination.
ORDER
It is hereby ordered that the above-entitled matter be
remanded to the Regional Director for Region 2 for
further appropriate action.
4 See, e.g, Yale University, 184 NLRB 860, 862, fn 3 (1970); Panda
Terminals, Inc., a wholly owned subsidiary ofPactfzc Intermountain Express
Co., 161 NLRB 1215, 1223 (1966)