Rosemout Center

National Labor Relations Board - Board Decisions

Apr 22, 1980

248 N.L.R.B. 1322 (N.L.R.B. 1980)

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosemount Center and Rosemount Center Workers
Association, Petitioner. Case 5-RC-10816
April 22, 1980
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On July 17, 1979, the Regional Director for
Region 5 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he
found, inter alia, that the Employer is subject to
the jurisdiction of the Board, and he directed an
election in a unit composed of the Employer's reg-
ular employees, with separate balloting for profes-
sional and nonprofessional employees. He specifi-
cally excluded from the unit the Employer's
"CETA" employees and "family home mothers."
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Petitioner
filed a timely request for review of the Regional
Director's decision on grounds that he made find-
ings of facts which are clearly erroneous and that
he departed from officially reported precedent. By
telegraphic order dated August 10, 1979, the Board
granted the Petitioner's request for review as to (1)
the exclusion of CETA employees from the unit;
and (2) the exclusion of Family Home Mothers
from the unit.
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 Employer is a nonprofit corporation in the
District of Columbia. It provides child day care
services to members of the public at its sole facility
located in the District of Columbia. There are ap-
proximately 130 children ranging from newborns
to 5-year-olds that are presently being served.
The Employer employs approximately 61 full-
time and part-time employees including 9 supervi-
sory or managerial employees, 2 receptionists/clerk
typists, 2 cooks, 3 teacher/staff developers, 25
teachers, 1 maintenance worker, 9 child care work-
ers, 2 special needs classroom teachers, 1 secretary,
I social worker, I mental health worker, and 5
family home mothers. The highest ranking officials
of the Employer are its board of directors. The
daily operations of the Employer are supervised
and coordinated by Executive Director Loise Sulli-
van. Other management or supervisory employees
include Health Care Coordinator Ethel Brown,
Social Worker Susan Ley, Social Worker and
Family Home Coordinator Vicki Lane, Family
248 NLRB No. 163
Home Coordinator Sally Volkert, Bookkeeper Jef-
frey Wilson, Infant Center Coordinators Linda
Ohmans and Maxine Legall, Pre-School Coordina-
tor Marta Gonzalez, and CETA Supervisor Emma
Walsh.
1. CETA Employees
The Regional Director excluded employees em-
ployed pursuant to the Comprehensive Employ-
ment and Training Act (CETA) from the voting
group consisting of the Employer's nonprofessional
employees. The Regional Director found that
CETA employees do not share a sufficient commu-
nity of interest with other nonprofessional employ-
ees to warrant their inclusion in that voting group.
The Employer contends that the prevailing case
law and the record clearly support the Regional
Director's determination. The Petitioner, on the
other hand, contends that the Regional Director's
finding is inconsistent with Board precedent and
contrary to the record.
The 16 employees who are paid under the
CETA grant work throughout the Employer's fa-
cility in close proximity with unit employees and
perform essentially the same tasks as unit employ-
ees. Nine CETA employees are classified as child
care workers and work in the preschool classroom,
two others in the same classification work in the
infant center, and the five remaining nonsupervi-
sory CETA employees are the maintenance
worker, the family home worker, the secretary, the
social worker, and the mental health worker. De-
spite the integration of the Employer's staff, the
Regional Director found and the Employer main-
tains that other factors indicate that the CETA
workers lack sufficient community of interest to be
included in the same unit with other employees.
The Board has recently held in Evergreen Legal
Services, 246 NLRB No. 146 (1979), that CETA
employees could be included in a unit of the Em-
ployer's regular employees. As in Evergreen, the
Federal funding for the CETA worker here is
channeled through the local government, in this
case the government of the District of Columbia,
which serves as the "prime sponsor" in granting
funds to the Employer. The prime sponsor makes
grants for programs that have a specific expiration
date.
The Employer first contends that the CETA
workers lack a community of interest with other
employees because they are only temporarily em-
ployed. Specifically, the Employer contends that
they have no reasonable expectation of continued
employment beyond September 30, 1979, the date
the CETA grant was set to expire. But, as pointed
out in Evergreen, the fact that a grant might expire
--- ---- --------
ROSEMOUNT CENTER 1323
and not be renewed does not necessarily make the
employees employed under that grant temporary.'
The CETA employees here, like all the Employer's
employees, are dependent on the exigencies of rev-
enues from Federal, state, and municipal sources
which are generally reviewed annually. The record
in this case indicates that the Employer would like
to have the CETA program refunded and will
most likely apply for further grant money. And
even if the grant is not refunded, some CETA
workers could reasonably expect continued em-
ployment because the contract that the Employer
has with the prime sponsor requires the Employer
to make a good-faith effort to place at least half the
CETA workers in permanent positions.2
The Employer also claims that CETA employees
do not have a community of interest with its other
employees because the Employer does not have the
same control over hiring these separate groups and
because the CETA grant finances the entire CETA
employee wage and benefit package. We find no
merit in these contentions. Thus, as in Evergreen,
the prime sponsor determines eligibility for CETA
employment but the Employer decides which eligi-
ble applicant to hire.3 As to wages, the record indi-
cates that the Employer submitted, as part of its
contract proposal, a salary schedule for the differ-
ent CETA positions and that schedule was not
changed by CETA officials.4 Although the Em-
ployer pays most of its employees at the same rate
as its lower paid regular employees, others are paid
at a higher rate. Furthermore, the Employer and
the Petitioner stipulated that "all levels of benefits
are equal for similar lengths of service between em-
ployees, regular employees and CETA employees
of the Employer, with the exception that unem-
ployment benefit payments are not made, or premi-
ums for such payments are not paid for, by the
Employer."
Finally, the Employer claims that CETA em-
ployees have working conditions different from
I The record indicates that no CETA employee had been made a per-
manent employee by the time of the hearing in this case. We note, how-
ever, that, at the time of the hearing, the grant under which these CETA
employes were employed still had 2 months to run. We note further that
one CETA employee, a secretary, was offered a part-time secretarial po-
sition on the Employer's staff but she declined the offer.
2 See also Mon Valley United Health Services, Inc., 238 NLRB No. 129
(1978).
3 The record contains little evidence concerning the method the Em-
ployer uses in selecting from among the CETA applicants That the
CETA employees themselves consider that the Employer makes the ulti-
mate hiring decision is shown by the testimony of James Myles, a CETA
maintenance worker, who testified that, while he was referred to Rose-
mount by the CETA program, he was told that Rosemount would have
the final word on whether he would be hired.
4 We note that in Mon Valley United Health Services, Inc., supra, the
employer was reimbursed for salaries for some employees and for salaries
and benefits for other employees. Some Manpower employees included in
the unit in Mon Valley received their paychecks from the county rather
than the employer.
those of other employees. The Employer notes
that, although CETA employees and regular em-
ployees receive the same employee handbook, the
handbooks given to the CETA workers contain
"substantial" written annotations. These annota-
tions, the Employer claims, reflect both the special
requirements of the CETA Act and the recogni-
tion by the Employer of the different status of
CETA employees. For example, annual and mater-
nity leave are determined by CETA and the proba-
tionary period set by the Employer is shorter for
CETA workers. An examination of a CETA work-
er's handbook submitted in evidence, however,
shows that few changes were made, and those
made were minor. No changes were made in the
key areas of pay practices, fringe benefits, leave
policies, compensatory time, attendance rules, re-
sponsibilities for the children, safety, telephone
policies, employee conduct, employee evaluation
(except for a shorter probationary period), disci-
plinary actions, grievance procedures, and other
terminations of employment. The Employer claims
further that CETA workers can take grievances
beyond the Employer's grievance procedure for
resolution before the prime sponsor and ultimately
to the Secretary of Labor. But that same extra
grievance procedure existed for CETA workers in
Evergreen, and as in Evergreen there is no evidence
that any CETA employee ever utilized it.
In sum, it appears clear from the evidence de-
scribed above and from the entire record that the
CETA employees share a substantial work interest
with the Employer's regular employees. Thus, the
substantial similarities in the wages, fringe benefits,
and working conditions of the Employer's non-
CETA and CETA employees, and these employ-
ees' integrated positions in the Employer's staff,
weigh heavily in affording the CETA employees
representation in the same unit as the Employer's
regular employees. Finally, we find that neither the
indefinite length of employment of, nor the addi-
tional benefits available to, the CETA employees
preclude a finding that they share a sufficient com-
munity of interest with the Employer's regular em-
ployees. See, generally, Evergreen Legal Service, 246
NLRB No. 146. Accordingly, we shall include the
CETA employees in the unit.
2. Family Home Mothers
The Regional Director excluded family home
mothers from the voting group (consisting of the
Employer's nonprofessional employees) on the
grounds that they have an insufficient community
of interest with the employees to be included in the
unit. The Employer contends that the family home
mothers are not employees, but are independent
ROSEMOUNT CENTER
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors. The Petitioner, meanwhile, maintains
that they are not independent contractors but em-
ployees with a sufficient community of interest to
be included in the unit.
The five family home mothers provide child care
in their homes for children between the ages of 2
months and 3 years. The Employer established the
family home mothers program in 1973 as an alter-
native to in-Center day care for those children on
the Employer's waiting list. Potential family home
mothers must be licensed by the District of Colum-
bia before applying to work for the Employer. The
applicants then must undergo a 2-week training ses-
sion during which they are evaluated. If accepted
at the end of the 2-week training session, they are
then asked to sign a "contract" with the Employer.
That contract, entitled "Family Home Day-Care
Agreement," was submitted as an exhibit. It re-
quires the family home mothers to provide day
care on weekdays from 7:30 a.m. to 6 p.m.; to pro-
vide suitable outdoor and indoor play areas; to pro-
vide the children with breakfast, lunch, and one
afternoon snack; to provide the Employer with
daily records of attendance; to regularly attend a
weekly 3-hour in-service workshop on child care
and development; to be present at all times while
children are in this family home unless a substitute
authorized by the Center is in attendance and the
Center has been notified in advance of such ab-
sence; to notify the Center's social work supervisor
at least 30 days in advance of any planned periodic
absence, such as vacations, and such absences are
not to exceed 10 days per year; to comply with all
health and dietary standards and all other applica-
ble regulations and policies promulgated by the
Employer or by governmental agencies; and not to
provide day care services for any child not re-
ferred by the Center, except their own children or
relatives. The agreement states that the family
home mothers are to be compensated by a fee of $6
per day for each child in her care. Payments are
made biweekly by the Center. The agreement also
states that the Center will provide in-service train-
ing, supervision, and consultation to the family
home mother to assist her in furnishing day care
services that meet the standards of the Center. The
Center also will provide equipment, educational
materials, and other supplies to the extent feasible.
The agreement further states that the Center as-
sumes no responsibility for any negligence or will-
ful conduct on the part of the mother, on the part
of children assigned to her care, or on the part of
the parents of such children.
The Employer contends that the family home
mothers are independent contractors. It is well es-
tablished that the existence of an employment rela-
tionship, as opposed to that of independent con-
tractor, depends on whether the principal has re-
tained the right to control the manner and means
by which a result is to be accomplished by the in-
dividual performing the service. Where the control
is limited to the result sought, the relationship be-
tween the individual performing the service and
the principal is that of an independent contractor.
In determining whether an individual is an employ-
er or independent contractor "all of the incidents
of the relationship must be assessed and weighed
with no one factor being decisive." N.L.R.B. v.
United Insurance Co. of America, 390 U.S. 254, 258
(1968). And while some factors will point unmis-
takably to either an independent contractor rela-
tionship or to an employee-employer relationship,
other factors may be indicative of neither.
Applying these principles to the record evidence
here, we find that the Employer has retained the
right to control the manner and means by which
the family home mothers perform their work.
Thus, while the Employer argues that the family
home mothers are free to set their own hours, the
agreement requires them to provide day care on
weekdays from 7:30 a.m. to 6 p.m. Although they
are not required to be on the Employer's premises,
they are required to care for the children in their
home, and the Employer furnishes equipment and
supplies. Although they are allowed to perform
their work without contemporaneous supervision,
they are frequently visited in their homes by the
Employer's family home coordinators. Although
they are licensed by the District of Columbia, the
Employer determines which applicants to hire after
requiring them to attend an initial 2-week training
session. Subsequent to their hiring, the Employer
requires them to attend weekly training sessions.
Although the family home mothers are paid fees
rather than wages, these fees are determined by the
Employer and are not subject to negotiation. And
although their District of Columbia license allows
them to care for five children, the Employer limits
them to four. We find that the Employer's control
over the work conditions and environment leads
inexorably to the conclusion thatthe family home
mothers are employees, rather than independent
contractors. 5
The Regional Director further concluded that,
even if we assume that the family home mothers
are employees, they still should be excluded from
the unit because they have an insufficient commu-
nity of interest with other employees. We disagree.
Although the Regional Director asserts that the
family home mothers program is independent from
the Employer's other services, it is clear that the
a See Film & Dubbing Productions, Inc., 181 NLRB 583 (1970).
ROSEMOUNT CENER 1325
program is an integral part of the Employer's oper-
ation. The program was created in 1973 as alterna-
tive infant care for those persons on the Employ-
er's waiting list. The Employer guarantees that
children who are in the family home mothers pro-
gram will be accepted, around their third birthday,
into the Employer's preschool program. The Em-
ployer seeks to insure similarities between the two
programs by requiring both family home mothers
and the in-house infant care workers to attend the
same weekly training sessions at the Center. The
family home mothers and the in-house day care
employees both are supervised by in-house coor-
dinators or home care coordinators, respectively.
In sum, we find that the family home mothers
are an integral part of the Employer's operation;
that they perform the same infant care work as
performed at the Center; that they are trained
along with the other infant care workers; and that
they are similarly supervised. Hence we find that
the family home mothers have a sufficient commu-
nity of interest with the Employer's other employ-
ees to be included in the unit. 6
In conclusion, we find that the following em-
ployees may constitute a unit appropriate for pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time teacher/
staff developers, teachers, cooks, child devel-
opment unit coordinators, child development
workers, junior teachers, family home moth-
ers, and employees employed pursuant to the
Comprehensive Employment and Training Act
employed at the Employer's District of Co-
lumbia facility, but excluding office clerical
employees, and supervisors as defined in the
Act.
The unit set out above includes professional and
nonprofessional employees. However, the Board is
prohibited by Section 9(b)(l) 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.
6 Although the Board has held that home workers may be excluded
from a production and maintenance unit, it is not contrary to Board
policy to include them See Bomber Bait Company, Inc., 207 NLRB 710
(1973). Thus, the Act requires simply that the unit be "appropriate" to
insure employees in each case the fullest freedom in the exercise of their
rights guaranteed by the Act. The National Cash Register Company, 166
NLRB 173 (1967). Indeed, more than one unit may be appropriate among
the employees of a particular enterprise. See Chin Industries, Inc., 232
NLRB 177 11977). Here, the comprehensive unit of all the Employer's
employees except office clericals and supervisors, as requested by the Pe-
titioner, is clearly an appropriate unit.
We shall therfore direct separate elections in the
following voting groups:
Voting Group I:
All full-time and regular part-time cooks, child
development unit coordinators, child develop-
ment workers, junior teachers, family home
mothers, and employees employed pursuant to
the Comprehensive Employment and Training
Act employed at the Employer's District of
Columbia facility, but excluding all teacher/
staff developers, teachers, office clerical em-
ployees and supervisors as defined in the Act.
Voting Group II:
All full-time and regular part-time teacher/
staff developers and teachers employed at the
Employer's District of Columbia facility, but
excluding cooks, child development unit coor-
dinators, child development workers, junior
teachers, family home mothers, employees em-
ployed pursuant to the Comprehensive Em-
ployment and Training Act, office clerical em-
ployees and supervisors as defined in the Act.
The employees in the nonprofessional voting
group I will be polled to determine whether or not
they wish to be represented by the Petitioner.
The employees in voting group II 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 purpose of
collective bargaining?
(2) Do you desire to be represented for the
purpose of collective bargaining by the Rose-
mount Center Workers Association?
If a majority of the professional employees in
voting group II vote "yes" to the first question, in-
dicating their wish to be included in a unit with
nonprofessional employees, they will be so includ-
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 II 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 the Petitioner.
There is no indication in this record that the Peti-
tioner would be willing to represent the profession-
al employees separately if those employees vote for
separate representation. However, if the Petitioner
does not desire to represent the professional em-
ployees in a separate unit even if those employees
vote for such representation, the Petitioner may
ROSEMOUNT CENTER
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notify the Regional Director to that effect within
10 days of the date of this Decision on Review 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(d) of the Act:
All full-time and regular part-time teacher/
staff developers, teachers, cooks, child devel-
opment unit coordinators, child development
workers, junior teachers, family home moth-
ers, and employees employed pursuant to the
Comprehensive Employment and Training Act
employed at the Employer's District of Co-
lumbia facility, but excluding office clerical
employees, and supervisors as defined in the
Act.
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
purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act:
Unit I: All full-time and regular part-time
cooks, child development unit coordinators,
child development workers, junior teachers,
family home mothers, and employees em-
ployed pursuant to the Comprehensive Em-
ployment and Training Act employed at the
Employer's District of Columbia facility, but
excluding all teacher/staff developers, teach-
ers, office clericals, and supervisors as defined
in the Act.
Unit II: All full-time and regular part-time
teacher/staff developers and teachers em-
ployed at the Employer's District of Columbia
facility, but excluding cooks, child develop-
ment unit coordinators, child development
workers, junior teachers, family home moth-
ers, employees employed pursuant to the Com-
prehensive Employment and Training Act,
office clerical employees, and supervisors as
defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]