Parkvue Medical Center

PARKVUE MEDICAL CENTER Parkvue Medical Center and General Hospital, Em- ployer and Local 79, Hospital Employees' Divi- sion, Service Employees International Union, AFL-CIO, Petitioner. Case 7-RC-9398 June 18, 1970 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, MCCULLOCH, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before George Alexander, Hear- ing Officer 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 7, the case was transferred to the Board for decision. The Em- ployer and Petitioner have filed briefs which have been duly considered. 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 powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejucicial error. They are hereby af- firmed. Upon the entire record in this case, the Board finds 1. Parkvue General Hospital is an accredited, tax-exempt, 105-bed general hospital organized on a nonstock basis under the nonprofit corporate laws of the State of Michigan ' It is located in a building which also houses Parkvue Medical Center, an out- patient clinic, and Parkvue Pharmacy, Inc., both of which are business enterprises. The building is owned by Dr. and Mrs. Park. The hospital and the pharmacy occupy their respective portions of the building under lease agreements with the Parks.' The remainder of the building is occupied by the ' Its charter provides, and has provided since it was incorporated in 1959, that no part of its net earnings shall inure to the benefit of any person and that, upon dissolution, its trustees must distribute its assets to another nonprofit institution of like character 2 The hospital's lease-purchase agreement yields an annual rental of $155,670 The pharmacy's lease calls for an annual rental of $3,540, plus $35 monthly for certain utilities The record shows, however, that these utilities are billed to and paid by the center S The bylaws provide that the executive committee shall consist of the president and two or more directors with the power to transact all regular business during the interim between board meetings, provided it follows the board's general principles and policies and refers all 559 center, which is a sole proprietorship owned by Dr. Park alone. While the Parks have no proprietary in- terest in the hospital, they own 50 percent of the pharmacy's corporate stock. As to the hospital, the record shows that it is qualified under Medicare and Medicaid, and that its patients, who are drawn from throughout the State of Michigan, are eligible for, and are mem- bers of, various Federal and private health in- surance programs. Its medical staff consists of ap- proximately 50 nonsalaried physicians, including 10 who have an undefined association with the center, and 3, including Dr. Park, who are center em- ployees. All of the doctors, apparently including the latter three, are paid by hospital patients for ser- vices rendered. The hospital is organized as a trustee corpora- tion-i.e., its assets are controlled by five non- salaried trustees who serve indefinite terms. Its bylaws provide that an affirmative vote of at least three trustees is necessary to pass all resolutions ex- cept "if for any reason the total number of trustees shall be below three (3), then the remaining Trustee or Trustees shall constitute a quorum for the purpose of electing Trustees to fill the vacan- cies " The hospital's eight-member unpaid board of directors is elected by the trustees for definite terms, although they may succeed themselves, and are charged with the establishment of hospital poli- cies, conduct, and operations. A majority of the board constitutes a quorum which is necessary to transact business. In addition to being the hospital's landlords, the Parks serve this facility as trustees and directors, as well as in other capacities. Thus, Dr. Park is an of- ficer (vice president), a member of the executive committee of the board,3 the hospital's salaried medical director, and its unpaid acting administra- tor.4 Mrs. Park is the nonsalaried assistant adminis- trator, holds the offices of secretary and treasurer (in which latter capacity she signs hospital checks),5 and also is a member of the board's ex- ecutive committee as well as being a member of the board's medical, property, and finance committees. matters of major importance to the board ° On October 23, 1967, the hospital's administrator abruptly left with- out notice The hospital's bylaws provide that they may be amended by the trustees only, and that while the administrator may be a physician, he shall not be a member of the board of directors On October 31, 1967, with the Parks present and voting, the board unanimously agreed to appoint Dr Park as acting administrator, "notwithstanding by-law pro- visions to the contrary," pending the selection of an administrator Dr Park still held this temporary position as of the time of the hearing in May 1969 5 Hospital checks must be signed jointly by three of four authonzed persons which include Dr and Mrs Park 183 NLRB No. 65 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As indicated above, the center is soley owned by Dr. Park. Its medical staff consists of Dr. Park and two other full-time physicians who are paid on either a salary or percentage basis. The offices of all three doctors are situated within the center area. The center, which is located at one end of the building which houses the hospital, occupies ap- proximately one-tenth of the building area;' Its lo- cation is such that it shares in common with the hospital some corridors, waiting rooms, and lavato- ries, as well as admissions and business offices.' They also share the same cafeteria and parking lot. In addition, the hospital leases from the center a laboratory, physical and occupational therapy rooms, and its emergency room-all of which are located within the center area. Further, in addition to its out-patient work, the center performs, with its employees, special services for the hospital consist- ing of X-ray work, electroencephalography (EEG), electrocardiography (EKG), mylograms, physical therapy, and special allergy testings, for which the center bills the hospital which in turn bills its pa- tients. Most of this work is performed in center rooms on center-owned machines and equipment, although it is often necessary for center employees and equipment to visit hospital patients. A discharged hospital patient needing outpatient care may or may not be referred to the center depending on his doctor. The majority of the center's patients needing hospitalization, however, are referred to the hospital by the center. As to the pharmacy, its location is such that it may be reached only by entering the hospital first, and it also shares common corridors and waiting rooms with the hospital and the center. The record also shows that although the Parks own 50 percent of this business corporation in which they are of- ficers and directors, the pharmacy is managed by its president, a Mr. Bluestone, who, together with his wife, owns the remaining corporate stock. Accord- ing to Mr. Bluestone, the Parks have "nothing to do with [the pharmacy's] operation." The pharmacy is a retail establishment whose principal business consists of selling prescriptions to hospital and center patients. With the exception noted below," it does not sell drugs or supplies to either the hospital or the center. It is staffed by a pharmacist and a clerk. The pharmacist is em- ployed and paid by both the pharmacy and the 6 For comparison purposes , the common building housing the hospital, center, and pharmacy contains 51,615 square feet, of which the hospital leases 46,300, and the pharmacy 590, square feet The center occupies 4,725 square feet 7 Although the center and the hospital share the admissions and busi- ness offices, each facility employs its own personnel who perform the duties required by such offices for their respective employers In addi- tion, the hospital is charged , as rent, four-fifths of the fair market rental hospital, each of whom pays half his salary by checks, usually drawn by Mrs. Park. Approximately half his time is spent in behalf of each employer in the performance of duties consisting of running the store, performing his pharmacological functions, and acting as purchasing agent for the pharmacy, the hospital, and the center, for whom he purchases drugs, pharmaceuticals, and related supplies in the name of each employer, who is billed and pays therefor. Although the supplies of each employer are separately compartmented, rent-free, in the pharmacy, the pharmacist "borrows" various items from the supplies of any of the employers when one is short-stocked, and later replaces the "borrowed" goods. The pharmacy clerk is employed and paid by the hospital. Although she works under the direction of the pharmacist whom she assists with the "paper work" and by writing receipts for prescriptions filed, ringing up sales, keeping the shelves neat, and keeping track of the "borrowed" items, the pre- sident of the pharmacy testified that the clerk is neither in his employ nor subject to his direction or control. In addition to the foregoing, there is also a sig- nificant degree of functional and operational in- tegration between the hospital and the center. Thus, center employees relieve hospital switchboard operators during lunch periods; the hospital laundry does the center's laundry; hospital stockclerks also stock the center; receptionist-ad- mission clerks employed by the hospital direct peo- ple to various areas in both the hospital and the center; one center employee also has performed the duties of a receptionist-admissions clerk for both facilities and, in addition, has aided applicants for hospital employment by filling out application forms which she then delivered to the hospital's director of nursing ; on a few occasions when the hospital was short of help, center employees have worked therein without being paid therefor by the hospital; one hospital housekeeping employee has, on infrequent occasions, cleaned center property. Moreover, a single maintenance, housekeeping, and laundry department which supplies services to both the hospital and the center is supervised by a per- son whose salary is paid by both facilities. The record further shows with regard to all three facili- ties that they have only one telephone number, the value of all common areas, including these offices, based on the amount of hospital and center traffic and the utilization of the offices by each employer I Inasmuch as the pharmacy does not have the facilities for direct patient billing , it sells directly to the center such items as the center may need to treat the employees of industrial clients under workmen's compensation The center then bills the patient directly . These items amount to $500-$600 monthly. PARKVUE MEDICAL CENTER hospital's, and that all telephone calls, incoming, outgoing, and intrabuilding, are handled primarily by hospital employees on hospital switchboards. During the fiscal year ending June 30, 1968, the hospital grossed revenues amounting to approxi- mately $750,000. During this same period, it purchased, either directly or indirectly, in excess of $50,000 worth of goods, supplies, and services from points outside the State of Michigan. During 1968, the center grossed revenues in the amount of $283,138. Of this amount, over $131,000 was received from the hospital for special services work. During this same period, it purchased $48,638 worth of goods, supplies, and services, of which amount approximately $30,000 could be classed as direct or indirect inflow and/or outflow. The pharmacy's annual revenues during 1968 amounted to approximately $50,000. During this same period, it expended approximately $30,000 for goods, supplies, and services, part of which represents indirect out-of-state purchases of various goods and supplies valued in excess of $3,600. Petitioner contends that the three facilities con- stitute a single employer. The employers disclaim any single or joint employer relationship, arguing that each facility operates as an independent entity, and that their relationship with each other is, at most, "an arrangement for cooperation in certain aspects of business." Based thereon, the hospital contends that it is statutorily exempt from the Board's jurisdiction because of its nonprofit status. Seeking to distinguish the facts herein from those in General Electric Company, Kadlec Hospital, 89 NLRB 1247, and related cases," the hospital further argues, in substance, that its lease with the Parks, their administrative and official positions in the hospital, their degrees of ownership in the as- sociated business enterprises, and the scope and manner of the business dealings among all three facilities are insufficient either to give the Parks control of its operation or to remove that exemp- tion. Alternatively, the hospital argues that even as- suming a joint employer relationship exists for ju- risdictional purposes, the unit sought is inap- propriate. The center and the pharmacy, while not disputing the Board's legal jurisdiction, claim ex- emption under the Board's discretionary jurisdic- tional standards; the center on the ground that its operation fails to meet either the retail or nonretail standards, and the pharmacy because its operation, either standing alone or combined with the cen- 561 ter's, does not meet the dollar retail standard. In our view, the facts presented herein clearly do not support the Employers' foregoing claims of in- dependency of identity and operation. They show, instead, an interrelated medical complex with a high degree of physical, administrative, functional, and operational integration which is business oriented and, to a great extent, dominated by the Parks. Thus, the Parks own the building in which all of the facilities are located, and, by virtue of their leases with the hospital and the pharmacy, receive annual rentals exceeding $159,000. Dr. Park owns the center outright, and, together with Mrs. Park, owns half the corporate stock of the pharmacy in which they are officers and directors. Dr Park's relationship with the hospital is that of a trustee, a member of its board of directors, a member of the board's executive committee, the hospital's vice president, its salaried medical director, and, contra- ry to its bylaws, its administrator Mrs. Park also is trustee, a board member, a member of all of the board's standing committees (executive, medical, property, and finance), the hospital's secretary and treasurer, and its assistant administrator. It is ap- parent, therefore, that the Parks not only exercise the authoritative voice in the hospital's day-to-day operations, but also have substantial influence in establishing overall hospital policy. It further appears that part of that policy is predicated on a functional and operational integra- tion with the center on which the hospital depends for space, equipment, and certain necessary ser- vices which are rendered to hospital patients by center employees using center equipment in center rooms-for which the center received from the hospital almost half its $283,000 income and without which the hospital would be unable to function normally. These functions and services are performed for the hospital by the center, a profit corporation owned, operated, and controlled by the Parks. The full extent of that policy and the magnitude of facility and business integration achieved is ex- emplified by the pharmacy which services hospital and center patients through a clerk who is paid by the hospital and over whom the pharmacy's prin- cipals ostensibly have no control, and a pharmacist who is jointly paid by the hospital and the pharma- cy but who, nevertheless, acts as purchasing agent, and custodian and dispenser of drugs and supplies for the center as well as for the hospital. In short, the record reveals, and we find, that the 9 Wherein jurisdiction was asserted over nonprofit hospitals which were controlled and operated by business enterprises as an integral part of their business activities 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hospital has no true viability apart from the center upon which it must rely for its complete and effec- tive operation, and that the center, together with the pharmacy and the hospital, are operated primarily for business purposes. We further find that the Parks' many positions of authority in the hospital have enabled them to exercise such signifi- cant and extensive influence over the hospital that, as a realistic and practical matter, that facility is operated by the Parks as an adjunct to, and an in- tegral part of, their profit-making ventures, and is only nominally operated by the nonprofit hospital corporation. It therefore follows that the limitations of the exemption afforded nonprofit hospitals in Section 2(2) of the Act have been exceeded and have no application here. 10 In view of the authority, influence, and degree of control exercised by the Parks in all three facilities, the joint purchasing, storing, and dispensing of drugs and supplies, the sharing of a common situs, common areas, and common facilities, the use of the same parking lot, the servicing of many of the same patients, and the administrative and func- tional integration of employers, employees, and operations among all facilities," we also find that the hospital, the center, and the pharmacy are in- terrelated parts of an integrated operation and, therefore, constitute a single employer within the meaning of our Act. The operations of these facili- ties, moreover, are conducted in such a manner as to supplement each other and to convey to their respective patients, the public, and even some em- ployees, the impression that they are all parts of a single enterprise. Therefore, even absent a single employer finding, we would, nevertheless, consider the three facilities as one for the purpose of testing the impact on commerce which would result from a labor dispute at any of the operations.12 Accordingly, since the combined revenues of the three facilities exceed both our retail, or nonretail, jurisdictional standards, we find that it will effectu- ate the policies of the Act to assert jurisdiction in this proceeding. 2. The labor organization involved claims to represent certain employees of the Employers. 3. A question affecting commerce exists con- cerning representation of employees of the Em- "'Cf General Electric Company, Kadlec Hospital, 89 NLRB 1247, Kennecott Copper Corporation, 99 NLRB 748, Miami Inspiration Hospital, Inc , 175 NLRB 636 In pertinent part, Section 2(2) of the Act exempts "any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual " ii Although the three facilities provide somewhat different services, require somewhat different skills, and have some different supervision, hours of work , wages, and fringe benefits , these differences do not ployers within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act 4. Petitioner seeks to represent hospital, center, and pharmacy employees in a single unit which in- cludes all licensed practical nurses, nurses aides, or- derlies, laboratory technicians, operating room technicians, therapy assistants, medical assistants, special service assistants, X-ray technicians, dietary and kitchen employees, housekeeping employees, laundry employees, pharmacy clerk, receptionists, and maintenance employees at Parkvue Medical Center and General Hospital and Parkvue Pharma- cy, Inc., at 28303 Joy Road, Westland, Michigan, and excludes office clerical employees, switchboard operators, confidential employees, professional em- ployees, guards and supervisors as defined in the Act. While the Employers argue generally that a single unit is inappropriate, they nevertheless would include in any appropriate unit the hospital-em- ployed switchboard operators, and exclude the hospital-employed licensed practical nurses and the pharmacy clerk. With regard to the disputed classifications, the record shows that there are one full-time and four part-time hospital-employed switchboard operators whose duties consist of manning the switchboard, recording calls, notifying doctors of meetings, coor- dinating job requests for maintenance, light typing such as preparing operating room schedules, and stuffing envelopes with hospital announcements. The majority of their time, however, is spent per- forming switchboard duties. In addition, these em- ployees regularly interchange with center em- ployees who relieve them during lunch periods.'' In view of the foregoing, and the consequent commu- nity of interests which switchboard operators share with hospital and center employees, we shall in- clude them in the unit.14 The pharmacy clerk works under the direction of the pharmacist whom she assists with the paper- work and by writing receipts for prescriptions filled, ringing up sales, and keeping the shelves neat. In- asmuch as this employee is primarily a store clerk and not an office clerical, we shall include her in the unit. As to the licensed practical nurses, hereinafter referred to as LPN's, whom Petitioner would now negate the interrelationship and interdependency which exist between these facilities or obviate the community of interests shared by the em- ployees therein who have similar and related medical and other skills and duties within the health-care facilities involved herein z Trade Winds Motor Hotel & Restaurant , 140 NLRB 567 13 One of the part-time operators is Dr Park's daughter We find that she is excludable from the unit for this reason Foam Rubber City #2 of Florida, Inc, 167 NLRB 623 i4 Cf Yorktowne Hotel, 126 NLRB 344 PARKVUE MEDICAL CENTER include and the Employer exclude, the record shows that Petitioner originally excluded LPN's in its petition. At the hearing, however, the Employer elicited from Dr. Park on direct examination testimony concerning the duties of this classifica- tion Dr. Park testified, in substance, that LPN's must take state-approved training courses in an ac- credited hospital and must be registered and licensed by the State; that they are supervised by and answerable to RN's and the director of nursing; that they must turn to the director of nurses in the event they run into something they cannot handle; that their responsibilities include being responsible for any medications dispensed from nurses' sta- tions, the charting done on patients, all aspects of patients' special bed care, the maintenance of nar- cotics records, control over the narcotics chest, the notification of patient changes to the patient's doc- tor, the checking of vital signs, the summoning of physicians in cases of emergency, the transmittal of doctors' orders and requests to the proper places, attending nurses' meetings and inner hospital train- ing sessions; and teaching nurses aides and super- vising nurses aides as to carrying out their duties. The matter having thus been put in issue, the Hearing Officer suggested that the parties brief their respective positions thereon. In accordance therewith, Petitioner, in its brief, now seeks to in- clude LPN's in its requested unit and requests that its petition be amended accordingly. The Employer contends in its brief that, although the "question" of the unit placement of LPN's was "raised" at the hearing, the matter was not litigated and, therefore, the LPN's should be excluded. 15 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have accesss to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NLRB v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibil- ity list , containing the names and addresses of all the eligible voters, must 563 We conclude that the evidence adduced as to the duties of the LPN classification adequately establishes that such classification is properly in- cludable in the unit herein. Accordingly, we hereby grant Petitioner's request to amend its petition to include the LPN's in the unit, and the petition is so amended. However, with respect to whether in- dividual employees in such classification possess su- pervisory authority, the record is inadequate and precludes us from making such determination. We shall, therefore, permit all LPN's to vote subject to challenge on the ground that they are supervisors within the meaning of Section 2(1 1) of the Act. Accordingly, we find that the following em- ployees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All licensed practical nurses, nurses aides, orderlies, laboratory technicians, operating room technicians, therapy assistants, medical assistants, special service assistants, X-ray technicians, dietary and kitchen employees, housekeeping employees, laundry employees, maintenance employees, receptionists, phar- macy clerk, and switchboard operators em- ployed at Parkvue Medical Center and General Hospital and Parkvue Pharmacy Inc., 28303 Joy Road, Westland, Michigan, excluding of- fice clerical employees, confidential em- ployees, professional employees, guards, and supervisors as defined in the Act. [Direction of Election" omitted from publica- tion. ] be filed by the Employer with the Regional Director for Region 7 within 7 days of the date of this Decision and Direction of Election The Re- gional Director shall make the list available 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 when- ever proper objections are filed 427-258 O-LT - 74 - 37