Medical Center Hospital

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butte Medical Properties , d/b/a Medical Center Hospital and Building Service Employees ' Union, Local 22 , affiliated with Building Service Em- ployees' International Union , AFL-CIO, Petitioner and California Hospital Association; United Hospital Association; Southern California Nursing Home Association ; Retail, Wholesale and Depart- ment Store International Union; Local 1199, Drug and Hospital Employees' Union of New York City; American Federation of Labor and Congress of In- dustrial Organizations ; California Association of Nursing Homes, Sanitariums , Rest Homes and Homes for the Aged , Inc.; California Nurses' As- sociation; National Association of Private Nurses' Education and Services; Vocational Nurses' League of California ; Local 144, Hotel and Allied Service Employees' Union, BSEIU, AFL-CIO; American Nurses' Association; New York State Nurses' Association; National Federation of Licensed Practical Nurses ; Siegel and Werner, Intervenors.' Case 20-RC-6698 November 16, 1967 DECISION AND DIRECTION OF ELECTION Upon a petition2 duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer William F. Roche of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended , by direction of the Regional Director for Region 20, the case was transferred to the Board for decision . Briefs have been filed by the Employer, the Petitioner, the American Nurses' Association, the California Nurses' Association, the New York State Nurses' As- sociation, the California Hospital Association and the United Hospital Association (a combined brief), and the American Federation of Labor and Con- gress of Industrial Organizations.3 The Hearing Of- ficer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is a California corporation en- gaged°in the operation of a private , or proprietary, 61-bed accredited short term general hospital4 located at Oroville, California. Its medical staff consists , inter alia , of 22 nonsalaried California licensed physicians , 10 of whom are shareholders of the Employer and practice in Oroville , and 12 of whom maintain practices in various communities in the general Oroville area, which includes commu- nities located up to 25 miles distant from Oroville. Its patients are drawn exclusively from the Oroville area with the exception of occasional transients requiring emergency treatment. The Employer's gross annual revenues during 1965 amounted to $1,100,000 , 50 percent of which was obtained directly or indirectly from various health organizations , such as Blue Cross , and in- surance companies , such as Metropolitan and Pru- dential . During this same period , the Employer ex- pended a total of $191,000 for food, drugs , medical, and other supplies, part of which represents indirect out-of-State purchases of drugs, medicines, and hospital equipment valued in excess of $30,000. While not disputing that its inflow of supplies and equipment from, points outside the State of Califor- nia sufficently establishes the Board's statutoryju- risdiction , the Employer and those Intervenors sup- porting the Employer's position contend that the operation of the Employer in particular, and of proprietary hospitals in general , have an insufficient impact on commerce to warrant assertion of the Board's discretionary jurisdiction over such opera- tions . Therefore , these parties argue , the Board should adhere to its past policy established in Flatbush General Hospital, 126 NLRB 144, of not asserting jurisdiction over this, class of employers. In Flatbush , the Board concluded , on facts be- fore it at that time, that the operations of proprieta- ry hospitals did not substantially affect commerce because such hospitals were essentially local opera- tions subject to extensive state controls which would likely be extended to regulate such labor disputes as may arise involving such hospitals. A reevaluation of these factors compels us to reach a contrary conclusion. There is no dispute that while all hospitals are primarily humanitarian facilities , some aspects of their operations are essentially business in ' All organizations having a substantial interest in the Board 's review of the doctrine enunciated in Flatbush General Hospital , 126 NLRB 144, particularly with regard to the policy issue of whether the Board should assert jurisdiction over proprietary hospitals , were invited to intervene herein and to participate at the hearing and file briefs . Intervenors have in- tervened on this basis 1 The instant case arose as the result of a petition filed by Petitioner on December 1 1965; seeking a unit of all nonprofessional employees em- ployed by the Employer On December 13, 1965, the Regional Director, relying on Flatbush General Hospital, 126, NLRB 144, dismissed the petition on the ground that "it would not effectuate the purposes of the Act to assert jurisdiction" over the Employer's operation Petitioner thereafter submitted to the Board a Request for Review of the Regional Director's action The Board concluded that Petitioner's appeal raised substantial and material issues with respect to the Board 's jurisdictional policy affecting proprietary hospitals. Accordingly, on June 7, 1966, the Board reinstated Petitioner's petition and directed the Regional Director to issue a Notice of Hearing in order to resolve not only those issues nor- mally relevant to the processing of the petition, but also the policy issues of whether the Board should assert jurisdiction over proprietary hospitals and, if so , the jurisdictional standard which is applicable thereto. ' The requests for oral argument by the Employer and Intervenors California Hospital Association and United Hospital Association are hereby denied, as the record and briefs adequately present the issues and positions of the parties 4 A short term hospital is one in which the average stay is less than 30 days 168 NLRB No. 52 MEDICAL CENTER HOSPITAL character. Operationally, they are a multibillion dol- lar complex and, as such, compromise one of the largest industries in the United States. An effective part of this complex is composed of the approxi- mately 970 proprietary hospitals which, as the record shows, influence and affect commerce beyond their immediate individual confines. While it is generally true, as the Employer and its proponents argue, that hospitals such as the Em- ployer's are "local" in that most of their medical staffs and patients come from nearby communities, that is not true with regard to difficult to secure per- sonnel such as registered nurses, dieticians, and therapists. They often must be recruited from other areas. Nor are they local in the character of their operations since the present size and projected fu- ture growth of these hospitals indicate that their im- pact on commerce is already substantial and, in all likelihood, will become more so in the future. The facts show that despite a decrease in the number of proprietary hospitals in the last 20 years, these facilities are presently located in 44 States and, in fact, are an increasing part of the hospital industry in that, with fewer such hospitals, there has been a substantial increase in the number of beds. admis- sions, census, personnel, payroll, assets, and gross revenues which, in 1965, exceeded $551 million. The operations of these facilities, moreover, necessarily include substantial purchases of food, beverages, china, silverware, linens, furniture, drugs, medication, supplies and equipment, utility services such as heat, light, and power, as well as various types of insurance. While the purchases made by a particular proprietary hospital may not directly involve interstate commerce, the aggregate purchases of all such facilities clearly have a sub- stantial impact on the operations of the various sup- plying industries and involve substantial shipments of goods and supplies in interstate commerce. The Employer's operation alone, for example, discloses yearly out-of-State purchases in excess of $30,000. Apart from the impact on commerce occasioned by the purchases of supplies and materials, there is also the financial interstate impact of billions of consumer dollars expended by millions of Amer- icans for health protection and care, which dollars travel to and from national insurance companies and the Federal government which, in turn, make payments directly or indirectly to proprietary and 5 American Hospital Associatton Guide Issue, Journal of the American Hospital Association, August 1, 1966 6 Social Security Bulletin , December 1965, Department of Health, Education, and Welfare 7 For example , legislation devoted to the training of health service workers uch as the Manpower Development and Training Act, the Voca- tional Education Act, and the Neighborhood Youth Corps, specialized training legislation such as the Health Amendments Act, the Practical Nurse Training Extension Act, the Health Professions Educational Assistance Act, and the Nurse Training Act, employment regulatory laws such as the 1966 amendments to the Fair Labor Standards Act, which now covers employees in the facilities in issue, and the Medicare Act 8 In pertinent parts, Section 1(b) provides that "It is the purpose and 267 other hospitals. The extent of national participation in health insurance benefits is indicated by a De- partment of Health, Education, and Welfare reports showing that as of December 31, 1964, 79.2 per- cent of the United States civilian population were enrolled for health care benefits by private health insurance companies, viz, 62,429,000 in Blue Cross and Blue Shield, 104,230,000 in various insurance companies, and 6,960,000 in independent pro- grams. An indication of the amounts received by proprietary hospitals for such health care is shown by the Employer's operation which obtained 50 per- cent of its $1,100,000 gross revenue from various national health insurance agencies. Moreover, the material effect on commerce resulting from the nationwide individual expendi- tures for health care in which proprietary hospitals participate .is further multiplied and augmented by the numerous public health and welfare enactments of Congress which are financed by the expenditure of public funds in which these facilities also par- ticipate, directly or indirectly.' These concepts are manifest in the national Medicare program, which has a first year operating budget in excess of $2 bil- lion and which provides for the payment of medical and hospital services to proprietary hospitals, in- cluding the Employer, as well as others, for the benefit of a large segment of our population. All of the foregoing unquestionably evinces a substantial national interest in, and a vital concern for, public health and welfare which, if affected by unregulated labor disputes in proprietary hospitals, would e Kert or tend to exert a wholly undesirable impact not only on the suppliers of these institutions, but also on the public, and, inevitably, on interstate com- merce. We believe that these numerous private and public health care efforts have a very substantial ef- fect on interstate commerce and that the public in- terest would be served by making_ available the or- derly and peaceful procedures of this Act in the hospital industry. Indeed, concomitant with these particular efforts is the recognition in Sections 1(b), 201 (a), and 206 of the National Labor Relations Act itself" that the Act's policy of engendering sta- ble industrial relations is based on advancing the health, safety, and general welfare of the Nation. Therefore, in view of the substantial interstate and national impact on commerce which is exerted by the Employer and by proprietary hospitals policy of this Act. to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce", Section 201(a) provides that it is the policy of the United States that "sound and stable industrial peace and the ad- vancement of the general welfare, health, and safety of the Nation and of the best interest of employers and employees can most satisfactorily be secured by the settlement of issues between employers and employees through the processes of conference and collective bargaining between employers and the representatives of their employees", Section 206 pro- vides for the appointment of a Presidential board of inquiry with regard to controversies which "if permitted to occur or to continue, [will] imperil the national health or safety , 11 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD generally, it is apparent that these institutions are not insulated local enterprises. Our reexamination has further revealed that although the Employer and other proprietary hospitals are subject to extensive State regulation, supervision, inspection , and licensing requirements, these controls generally do not pertain to labor mat- ters which affect or tend to affect interstate com- merce as contemplated by the Act. Thus, the State controls to which the Employer is subject pertain to matters such as building and construction, housing, fire protection, the use of drugs and medications, medical standards and similar matters, and to licensing requirements which relate to medical, nursing, and other hospital personnel. It is also sub- ject to State wage and hour laws which detail work- ing conditions for women and children. California has not legislated in the field of labor relations, how- ever, except to the extent of providing a State con- ciliation service which becomes available to parties only upon mutual consent for the purposes of mediating disputes and conducting card checks and elections. The same situation prevails in greater or lesser degree in 45 other States.9 Such regulations, although germane to personal health and well being, are extremely limited in scope and application in the sphere of labor relations and, in reality, have little, if anything, to do with matters of union representa- tion, collective bargaining, the effective settlement of labor disputes, or the stabilization and main- tenance of industrial peace. Therefore, inasmuch as the Employer's operation is representative of the operations of proprietary hospitals generally,`°and as the operations of proprietary hospitals affect commerce within the meaning of the Act, we find that the operations in- volved herein are within the Board's statutory ju- risdiction. We further find, in view of all the forego- ing, that the considerations bearing on our jurisdic- tional determination in this industry have markedly changed since the Flatbush decision and that it will effect the policies of the Act to assert our discre- tionary jurisdiction over the Employer as ' well as-' over" proprietary hospitals generally. Accordingly, Flatbush is overruled. We are fully aware that our assertion of jurisdiction herein embraces those four States which have comprehensive labor law legisla- tion affecting the hospital industry."' However, the interests of orderly, effective, and uniform adminis- tration of our national policy require the assertion of jurisdiction over proprietary hospitals even in those few States which have legislated labor rela- tions procedures and remedies in this industry. Our action herein does not mean , however, that the Board must assert jurisdiction in all cases in- volving this class of employer. In the exercise of the Board's discretionary authority to decline to assert 9 We note in this regard that State regulation of labor disputes in these health care facilities has not noticeably expanded since the Flatbush decision. jurisdiction in those instances where it finds the pol- icies of the Act will be effectuated by such action,tt we find that those policies will be effectuated by limiting assertion of jurisdiction to those cases in- volving proprietary hospitals which receive at least $250,000 in gross revenues per annum. The availa- ble evidence indicates that this standard will require the "assertion of jurisdiction over that part of the class of employers involved herein which exerts a significant impact on commerce, and does so without burdening the Board's processes by involv- ing the Board in the remainder of that class where the impact is relatively slight. The $250,000 stan- dard imposed will accomplish this result while at the same time ensuring effective regulation of labor relations in this area. Accordingly, as the Employer receives in excess of $250,000 gross revenues per annum, we find that it will effectuate the policies of the Act to assert ju- risdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. Petitioner seeks to represent 74 of the Em- ployer's 125 employees in a unit described as "all non-professional employees of the Employer at its Oroville location, including cooks, tray girls, maids, janitors, storekeepers, maintenance employees, grounds keepers, licensed vocational nurses, nurses aides, orderlies, surgical licensed vocational nurses, surgical technicians, surgical aides, and laboratory helpers, excluding physicians, registered nurses, medical technologists, and other professional em- ployees, office clerical employees, head cook, chief housekeeper, chief engineer, and other supervisors as defined by the Act." The Employer agrees with the foregoing unit except that it would include the head cook, chief housekeeper, and chief engineer, and exclude surgical technicians; it takes no posi- tion with regard to nurses' aides, surgical aides (whom the Employer may consider to be part of the nurses' aides category), orderlies, and laboratory helpers. With regard to the disputed classifications, the record shows that the head cook is in charge of the Employer's dietary department wherein she super- vises general meal preparation, assigns and directs all kitchen work, and otherwise supervises two cooks and six tray girls, and effectively recom- mends the hiring and discharge of kitchen person- nel. She is salaried and punches a time card - condi- tions apparently applicable to all of the Employer's employees - works 40 hours a week, and engages in cooking 4 days a week when the cooks are off duty. ° Massachusetts , Michigan , Minnesota, and New York Office Employees International Union, Local No II v N L R B , 353 U S 313,318 MEDICAL CENTER HOSPITAL 269 We find that the head cook is a supervisor within the meaning of the Act, and we shall exclude her from the unit. The chief housekeeper assigns and supervises the work of nine maids and four janitors in the housekeeping department. She works 40 hours weekly on such shifts as she may be needed. In her absence, this department is not supervised. In addi- tion to her supervisory duties, she spends a substan- tial part of her time performing the regular duties of a maid. She also may effectively recommend the hiring and discharge of employees in this depart- ment. We find that the chief housekeeper is also a supervisor, and we shall exclude her from the unit. The chief engineer assigns and directs the work of four maintenance employees, two of whom work full time, and two of whom regularly work part time. He works a 40-hour week, primarily on the day shift, and also spends a considerable part of his time performing the same duties as other employees in this department. He also effectively recommends the hiring and discharge of maintenance department employees. Accordingly, we find that the chief en- gineer is a supervisor, and we shall exclude him from the unit. As to the surgical technicians whom the Em- ployer seeks to exclude from the unit, the record shows that the two employees in this classification perform certain work during surgery in the operat- ing room where, inter alia, they handle surgical equipment and "actually help in surgery during the operation." They have had special training and are able to perform surgical techniques above the capa- bilities of surgical aides but below those of licensed vocational nurses 12 In the absence of affirmative evidence, indicating that these employees lack a community of interest with other employees in- cluded in the unit, or are employees who otherwise should be excluded from the unit , and in view of the Employer's agreement to include therein the admit- tedly higher skilled licensed vocational nurses, we find that the surgical technicians are appropriately included in the unit sought by Petitioner. We further find with respect to the nurses' aides, surgical aides, orderlies, and laboratory helper clas- sifications on which the Employer takes no posi- tion, that these employees are also appropriately in- cluded in the unit. The record discloses that the Employer has 12 full-time and I regular part-time (16 hours weekly) nurses' aides, all of whom are women. These employees work 40 hours weekly on day and night shifts under the immediate supervi- sion of licensed vocational nurses and the ultimate supervision of the director of nurses (a registered nurse). None of these employees has any superviso- ry responsibilities or any greater authority than any other employee in this classification. Their work is similar to that of orderlies in that they perform minimal care tasks for patients, such as aiding pa- tients in bedpan use, bringing water to patients, tak- ing temperatures and blood pressures, and some- times handling transfusion and oxygen equipment. We shall include them in the unit. The surgical aides, about whom the record is rather sparse in detail, appear to be basically nurses' aides attached to the surgery department. These employees, unlike the surgical technicians, perform no work in the operating room during sur- gery and are primarily responsible for the wrapping and sterilization of surgical packs (instruments) and the changing of blades on various instruments. We shall include them in the unit. Orderlies perform minimal nursing care tasks, primarily for male patients, during a 40-hour week on both day and night shifts. They bathe male pa- tients, transport patients by wheelchair, sometimes prepare patients for surgery, place patients on and remove them for the Guerney (a cart used to wheel patients to and from surgery), and handle some un- disclosed types of equipment. These employees do not require a medical background and are not licensed. The Employer's four full-time and one regular part-time (32 hours weekly) orderlies have no supervisory responsibilities and perform their work under the supervision of the director of nur- ses. We shall include them in the unit. As to the laboratory helpers, the record shows that the Employer's laboratory is composed of five employees, three of whom are admittedly profes- sional employees (licensed medical technologists), and two laboratory helpers whose placement is here in issue. These helpers work on the day shift only, under the supervision of the chief laboratory techni- cian. Fifty to seventy-five percent of their work is devoted to routine clerical duties in the laboratory, such as answering the telephone, running errands, filing EKG and other reports, and billing. The remainder of their time apparently is spent in rou- tine laboratory duties such as washing test tubes, placing laboratory slips on patient's records, and at- taching electrodes to patients for EKG tests. There are no educational requirements for these positions beyond the Employer's desire that these employees be high school graduates, and they are not required to be licensed. We shall include them in the unit. Accordingly, we find that the following em- ployees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All nonprofessional employees of the Employer 12 The Employer's licensed vocational nurses, sometimes called licensed practical nurses in States other than California, are licensed by the State upon completion of I year's training in a licensed vocational nur- ses' school which usually is attached to a hospital Working under the su- pervision of a registered nurse, these employees perform much higher skilled and more technical nursing procedures than nurses' aides, but below the skills and procedures of registered nurses They do not, for ex- ample, give medication to patients They do, however, as to routine mat- ters, supervise nurses' aides 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at its Oroville, California, location including cooks, tray girls, maids, janitors, storekeepers, main- tenance employees, grounds keepers, orderlies, nurses' aides, surgical aides, surgical technicians, surgical licensed vocational nurses, licensed voca- tional nurses, and laboratory helpers, but excluding physicians, registered nurses, medical technolo- 'a An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Rtte Medical Properties, d/b/a Medical Center Hospital, Director for Region 20 within 7 days after the date of this Decision and Direction of Election The Regional Director shall make the list available gists, and other professional employees , office cleri- cal employees , head cook , chief housekeeper, chief engineer , and other supervisors as defined in the Act. [Direction of Election 13 omitted from publica- tion.] to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc , 156 NLRB 1236