Bethany Home for the Aged

BETHANY HOME FOR THE AGED Bethany Home for the Aged and Service Employees' International Union, Local No. 120, AFL-CIO, Petitioner. Case 19-RC-4951 August 27, 1970 DECISION AND DIRECTION OF ELECTION BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On October 24, 1968, Petitioner filed a petition under Section 9(c) of the National Labor Relations Act, as amended, seeking to represent certain of the Employer's employees. Thereafter, the Regional Director administratively dismissed the petition on the ground that the Employer, a nonprofit corporation, was not an employer within the meaning of Section 2(2) of the Act. The Regional Director's dismissal of the petition subsequently was reversed on appeal to the Board which reinstated the petition and directed the Regional Director to issue a notice of hearing thereon. Accords ly, a hearing was held before Hear- ing Officer Eugi R. Nielson 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 19, the case was transferred to the Board for decision. Briefs have been filed by the Employer and Petitioner.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is a private, accredited, 212- bed institution organized under the nonprofit corpo- rate laws of the State of Washington. It is licensed by the State and certified by the State Department of Public Health as a Class 1 nursing home authorized to render heavy nursing care services. It also is certified under Medicare as an extended care facility. Its medi- cal staff consists of two nonsalaried physicians who are on 24-hour call and are paid by the Employer's residents for services rendered. The 35-37 other physi- ' Petitioner's request for oral argument is hereby denied, as the record and briefs adequately present the issues and positions of the parties 191 cians in the local area who may attend those residents apparently are paid on the same basis. It services aged and senile, but not retarded, residents, most of whom are of the Lutheran faith, and all of whom are drawn exclusively from within the State, primarily from the Everett area. Its authorization to provide those residents with heavy nursing care services includes the rendering of intermediate and light nurs- ing services, and the Employer accordingly offers to nine different patient categories all types of nursing services within this broad range. As of the time of the hearing, 89 residents were receiving some type of nursing care. According to the Employer, it "oper- ates as a nonprofit hospital, except there is no facility for major surgery." In addition to the foregoing medical and nursing services, the Employer also provides its residents with a continous program of Bible studies, spiritual consel- ing, and other religious services, These services are conducted in accordance with the concepts of the American Lutheran Church, with which the Employer is affiliated but not controlled, under the direction of the Employer's administrator and assistant adminis- trator, both of whom are Lutheran ministers. During 1968, the Employer expended $450,000 from gross receipts of $502,000, exclusive of contributions and gifts. Of this latter amount, $353,000 was derived from patient fees, $124,000 from state welfare agencies, and $25,000 in Medicare payments. During this same period, the Employer purchased approximately $10,500 worth of goods and supplies from local con- cerns who, in turn, obtained those goods and supplies from points directly outside the State or from compa- nies located within the State but engaged in interstate commerce. While not disputing that its involvement in inter- state commerce sufficiently establishes the Board's statutory and discretionary jurisdiction, the Employer argues that the Board should nevertheless decline to assert jurisdiction over it because of the nonprofit, primarily religious, character of its operation. More specifically, the Employer contends that its operation is unlike that of a nursing home in that its primary purpose is to provide a church home for the spiritual needs of the aged and, as a necessary but secondary function, to "provide services to help [the aged] in their bodily needs." Alternatively, the Employer asserts that it "operates as a nonprofit hospital," thereby intimating that its operation is so closely related to, or indistinguishable from, the operation of statutorily exempted nonprofit hospitals that it also should be afforded that exemption. We find no merit in these contentions. The principles involved herein already have been determined by Drexel Home, Inc., 182 NLRB No. 185 NLRB No. 85 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - 151, wherein jurisdiction was asserted over a nonprofit extended care facility substantially similar to the Employer's in operation and effect on commerce. We noted in Drexel that we had asserted jurisdiction over proprietary nursing homes and related facilities,' and that if, in fact, an employer's operation places it within the general classification of a nursing home or a related facility, its characterization of itself as something other than a nursing home does not remove it from that general classification. We also adopted the American Hospital Association's definition of an extended care facility' in order to provide, for our jurisdictional purposes, a clearer and more objective characterization of health-care operations which fall within the above-mentioned general classification but which often are obscured by semantic differentiations. We concluded that inasmuch as the operations of nonprofit extended care facilities are analogous to, and substantially affect commerce in much the same manner as, similar proprietary health-care facilities, an employer's nonprofit status is an irrelevant basis on which to decline to assert jurisdiction since its impact on commerce is neither influenced nor lessened by its nonprofit status, its title, its religious affiliation, or its occupants. Those factors do not provide a proper ground for measuring the effect on commerce engendered by such an institution. Those principles are fully applicable herein and compel us to conclude that the Employer's characteri- zation of itself as something other than a nursing home does not remove it from the category of facilities over which jurisdiction was asserted in Drexel. Its operation clearly falls within the ambit of a subacute extended care facility as evidenced by the heavy, intermediate, and light nursing care services which it offers to nine different categories of patient-resi- dents services which, as of the time of the hearing, were being utilized by 42 percent of all residents. Moreover, the substantial effect on commerce engen- dered by its operation generally, and by its participa- tion in the nationally oriented and publicly financed Medicare program specifically, is neither influenced nor lessened by its nonprofit status or its religious affiliation. Accordingly, we find, for all the reasons set forth herein and in Drexel, and because the Employer receives in excess of $100,000 in gross revenues per annum, that it will effectuate the policies of the Act to assert jurisdiction over the Employer's extended care facility. 2. The labor organization involved claims to repre- sent certain employees of the employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employ- er within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties have stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All licensed practical nurses, nurses' aides, food service department employees, maintenance department employees, housekeeping department employees, and laundry depaent employees, excluding the occupational th ist, office cleri- cal employees, registered nurses, and all guards, supervisors, and professional employees as defined in the Act. [Direction of Election4 omitted from publication.] University Nursing Home, Inc, 168 NLRB No 53 "An establishment with permanent facilities that include inpatient beds , and with medical services , including continuous nursing services, to provide treatment to patients who require inpatient care but who do not require hospital services " ° 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 whould have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear, Inc, 156 NLRB 1236, NL R B v Wyman- Gordon Company, 394 U S 759 Accordingly, it is hereby directed that 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 19 within 7 days of 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 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