University Nursing Home, Inc.

UNIVERSITY NURSING HOME 263 University Nursing Home, Inc. I and Local 1, Amer- ican Federation of State, County & Municipal Em- ployees, AFL-CIO, Petitioner and California As- sociation of Nursing Homes, Sanitariums, Rest Homes and Homes for the Aged , Inc.; Butte Medi- cal Properties, d/b/a Medical Center Hospital; United Hospital Association ; Southern California Nursing Home Association ; Building Service Em- ployees International Union ; American Federation of Labor and Congress of Industrial Organiza- tions; American Nurses' Association; American Nursing Home Association ; National Federation of Licensed Practical Nurses; Bay District Joint Council of Building Service Employees; Joseph Sylvestri , Esq.; California Hospital Association; California Nurses' Association, Intervenors.2 Case 5-RC-5330 November 16, 1967 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Maurice J. Nelligan, Jr., of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, by direction of the Regional Director for Region 5, the case was transferred to the Board for decision.3 Briefs have been filed by California Association of Nursing Homes, Sanitari- ums, Rest Homes and Homes for the Aged, Inc. and the Southern California Association of Nursing Homes (a combined brief), the American Nurses' Association, the New York State Nurses' Associa- tion, the Building Service Employees' International Union, and the American Federation of Labor and Congress of Industrial Organizations. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employer, a New York corporation, is located at Wheaton, Maryland, where it is engaged in the operation of a proprietary, or private, licensed 150-bed nursing home offering skilled nursing care to patients classified by the Employer as ambulatory alert, intensive nursing, and dis- oriented. Its medical staff consists, inter alia, of three physicians, a dentist, and two podiatrists. Forty to fifty percent of its patients are drawn from the State of Maryland; the remaining fifty to sixty percent of its patients are from Colorado, Delaware, the District of Columbia, Mas- sachusetts, New Jersey, New York, and Ohio. Its patients, 95 percent of whom are 65 years of age or older, reside with the Employer for lengths of time varying from weeks to months, and longer. The Employer's gross annual revenues for its fiscal year which ended on June 30, 1966, amounted to $550,000, including $3,200 in monthly receipts from various medical insurance plans. Dur- ing the past 12 months, the Employer has expended in excess of $120,000 for out-of-State purchases of goods, supplies, and services. The Employer does not seriously contest the Board's discretionary authority to assert jurisdic- tion over its operation, but, rather, is "leaving up to the Board whether or not [it] is going to assume ju- risdiction in this case." Certain employer associa- tions which have intervened, however, relying on Flatbush General Hospital, 126 NLRB 144, urge the Board to decline to assert its discretionary ju- risdiction over the Employer and over proprietary nursing homes and related facilities as an industry, contending that the Employer's operation is atypi- cal, and that operations of these facilities in general do not affect commerce substantially enough to warrant the exercise of the Board's jurisdiction. We do not agree. As to the Employer's operation, the record shows that it is located several miles distant from the Dis- trict of Columbia and that, within the preceding year, it has made out-of-State purchases in excess of $120,000. Those seeking to dissuade the Board from asserting jurisdiction contend, in effect, that the Employer's operation "is not typical of nursing homes in the United States" because its location is conducive to drawing patients from many States. Nursing home facilities, they assert, are generally local as to patients and constitute a type of activity over which the Board, in the Flatbush case, declined to assert its discretionary jurisdiction. As indicated below, Flatbush has been overruled. Moreover, in matters of jurisdiction, it is immaterial whether an enterprise is physically located near a State border or deep within a State. We note also that these parties do not contend that the Em- ployer's operation is not involved in interstate com- merce or that its out-of-State purchases are not of a sufficient magnitude to substantially affect com- merce under standards we have applied in cases in- volving other industries where we have assertedju- risdiction. The name of the Employer appears as amended at the hearing. t All organizations having a substantial interest with regard to the pol- icy issue of whether the Board should assert jurisdiction over proprietary nursing homes were invited to participate at the hearing and file briefs In- tervenors have intervened on this basis The Retail, Wholesale & Depart- ment Store Union and the New York State Nurses' Association did not intervene, but were permitted to file briefs 3 On October 20, 1966, subsequent to the close of the hearing and the transfer of the case to the Board, the Employer and the Petitioner ex- ecuted a document entitled "Stipulations" in which they stipulated, in ef- fect, that a question concerning representation exists and that there is no history of collective bargaining for employees of the Employer, and moved that the said "Stipulation" be incorporated into and made part of the record On October 28, 1966, the Board granted the motion 168 NLRB No. 53 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the recently decided Butte Medical Proper- ties 4 case, the Board. after carefully reexamining on a full record the operations of proprietary hospitals and their impact on commerce, overruled its earlier decision in Flatbush wherein the Board had declined to assert jurisdiction over such proprietary hospitals. Our reappraisal in the Butte case of the operations of those institutions demonstrated both the ever increasing substantiality of the impact ex- erted on commerce by those health care facilities and the need for national and uniform regulation of labor relations in that area. The conclusions we reached with regard to the operations of proprietary hospitals apply with equal force to the operations of proprietary nursing homes providing skilled health care and convalescent services. A composite picture of the entire nursing home industry shows that there are approximately 20,000 public and private, including nonprofit, nursing homes and, related facilities in the United States, and that the number of persons now being cared for in such facilities add up to 1 to 2 percent of the Na- tion's population. The United States Public Health Service estimates that by 1970, 85 percent of the pa- tients in these facilities will be at least 65 years of age, that a 65-year old male person will have a further life expectancy of 13.7 years, and a female of 16.6, and that, by that time, there will be 20 mil- lion Americans 65 years of age or older.5 In order to cope with the burgeoning demand for such facili- ties, an estimated 300,000 additional nursing home beds costing in excess of $1.5 billion have been added in the United States during the last 5 or six years,6 raising the total number of such beds to 835,000. The economic impact generated by these facilities can be measured by the gross national ex- penditures for nursing home care which in 1950, amounted to $142 million, and which, by 1965, had increased 754 percent to $1.2 billion.7 Proprietary nursing homes and related facilities of the kind here under consideration account for over 18,000 of the total 20,000-odd public and private facilities comprising the entire industry in this health care field. Their primary function, generally speaking, is to provide skilled con- valescent and health care services, supplementing the functions of the short-term proprietary hospitals which offer acute medical and surgical services. The operations of the health care facilities here under consideration correspond in this broad pur- pose to those of proprietary hospitals in that both are intimately connected with the public health and welfare of the Nation. The business aspects of the operations of nursing homes are akin to those of 4 Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266 5 Nursing Homes and Related Facilities Fact Book, United States De- partment of Health, Education, and Welfare, Public Health Service Publi- cation No 930-F, February 1963 proprietary hospitals and affect commerce in sub- stantially the same manner. Unregulated labor disputes involving nursing homes, no less than those involving proprietary hospitals, would exert or tend to exert a wholly undesirable effect on in- terstate commerce as well as on the national wel- fare. Therefore, inasmuch as we have already deter- mined in the Butte case that the operations of proprietary hospitals substantially affect commerce and that it will effectuate the policies of the Act to assert jurisdiction over such hospitals, and because the operations of nursing homes and related facili- ties are analogous to the operations of such hospitals and also substantially affect commerce in much the same manner, we find, for all of the reasons set forth in Butte, that it will effectuate the policies of the Act to assert jursidiction over the Employer as well as over proprietary nursing homes and related facilities that provide skilled nursing health care and convalescent services. The interests of orderly and effective administration of our national policy require that our assertion of ju- risdiction embrace even those few States which have legislated labor relations procedures and remedies in the health care field. In the exercise of our discretionary authority, however, we need not assert jurisdiction in all cases involving these facilities.8 We find that it will effec- tuate the policies of the Act to limit our exercise of jursidiction to those cases involving proprietary nursing homes and related facilities providing skilled nursing health care, and convalescent ser- vices, where the Employer involved receives at least $100,000 in gross revenues per annum. On the basis of such information as is available to us and as has been brought to our attention in the briefs of the parties, we are satisfied that application of this stan- dard will provide effective coverage over a signifi- cant portion of the nursing home industry to a sub- stantially like extent that the $250,000 gross revenue standard provides coverage over a signifi- cant portion of the proprietary hospital industry. Were we to set a $250,000 gross revenue standard for the nursing home industry, it would confine our asserted jursidiction to a segment of that industry so small as to have little constructive impact on the labor relations of the industry as a whole, thereby failing to effectuate our policy determination to ex- tend the benefits and protections of the Act to em- ployers, employees, and labor organizations in this industry to the fullest extent possible without undu- ly burdening the Board's processes, its workload, or its budgetary limitations. 6 American Nursing Home Association, "Fact Sheet No V, July 15, 1966 ' Social Security Bulletin, January 1966 " Office Employees International Union, Local No 11 v N L R B , 353 U S 313,318. UNIVERSITY NURSING HOME Accordingly, as the Employer herein receives in excess of $100,000 gross revenues per annum, we find that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 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 41 of the Em- ployer's 51 employees in a unit composed of all em- ployees of the Employer employed at its University Nursing Home, 901 Arcola Avenue, Wheaton, Maryland, excluding guards, professional em- ployees, managerial employees, and supervisors as defined in the Act. The Employer and Petitioner are in complete agreement as to the unit sought except that the Employer would exclude its one licensed practical nurse on the ground that his employee is a professional employee. The licensed practical nurse in issue, Lois Parker, was licensed by the State of Maryland after having attended an accredited State-sponsored vo- cational school for a period of 9 to 12 months. She works 40 hours weekly and is paid at an hourly rate of $2. She works on the second shift (3 to 11 p.m.) and is the nurse in charge of one of the three wings of which the Employer's home is comprised. She 9 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 Region 5 within 7 days after the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be 265 supervises the work of three nurses' aides and one orderly in the performance of tasks of changing bed linens, bathing, feeding, massaging, and otherwise caring for patients in accordance with physicians' instructions. Parker also participates in these activi- ties in cases of emergency, as do registered nurses. 'She also carries out such orders and treatments as patients' doctors may prescribe, including the changing of dressings and the giving of medical dosages in both liquid and capsule form. Unlike re- gistered nurses, however, Parker does not give in- jections to patients. As a charge nurse, Parker reviews patients' charts to make certain that the proper medications and diet have been and are being given, and observes and reports symptoms, if any, to the head registered nurse. We find that the licensed practical nurse is a supervisor within the meaning of the Act, and shall exclude her from 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 employees of the Employer employed at its Wheaton, Maryland, location, excluding guards, professional employees, managerial employees, and supervisors as defined in the Act. [Direction of Election 9 omitted from publica- tion.] 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.