Rosewood, Inc.

ROSEWOOD, INC 193 Rosewood, Inc. and Service Employees' International Union, Local 150-T, AFL-CIO, Petitioner and American Federation of State, County and Munici- pal Employees, AFL-CIO, Intervenor.' Case 26- RC-3298 August 27, 1970 DECISION AND DIRECTION OF ELECTION BY,MEMBERS MCCULLOCH,'BROWN, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Willie L. Clark, 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 and Statements of Procedure, Series 8, as amended, the case was transferred to the Board for decision. A motion to dismiss and brief in support thereof was filed by the Employer. Pursuant to the ,provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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. This Memphis, Tennessee, based Employer was originally incorporated about 1960 as a proprietary nursing home. Because it never succeeded in making any profits, its charter was amended in July 1967 and its for-profit status was thereby converted to that of a 'charitable institution broadly authorized to engage in scientific, educational, charitable, and other -benevolent endeavors. The Employer has no shareholders, and neither its officers nor directors are paid.' Since its conversion, the Employer has oper- ated a Medicare-certified, accredited, skilled, nonprofit nursing home with an undisclosed number of beds which are provided with continuous nursing services. The Employer categorizes itself as an extended care facility which "is practically the same as a hospital."' ' This party was permitted to intervene at the hearing on the basis of its showing of interest ' The Employer attempted to establish that it falls within the statutory exemption afforded nonprofit hospitals The record shows that the Employ- er is accredited by Medicare as an extended care facility and licensed by the State of Tennessee as a nursing home, and that it operates as such by providing subacute "medical care for the convalescent, the chronically ill and the aged " The Employer's attorney, after stating that "Rosewood is a nursing home and extended care facility," attempted to draw a distinction between profit and nonprofit nursing homes, contend- Its medical staff consists of a medical Advisory Com- mittee and an open staff. The former is composed of 5 nonsalaried physicians who render advice on medical practices and procedures and also render medical services to, and are paid by, patients without doctors of their own; the latter consists of 160 physi- cians who.use the Employer's facilities and are paid by patients for care rendered. The Employer admitted- ly competes with other nursing homes, both profit and nonprofit, for its patients who are drawn primarily from the local area, although "quite a few" come from Arkansas and Mississippi, and occasionally from Chicago, Illinois. There is nothing in the record to indicate that its patients are selected, or not selected, on the basis of color, race, religion, or any other such criteria,'but rather that it accepts all patients able to afford its average monthly charges of $500 for a private room and $400 for semiprivate. It also accepts an undisclosed number of "charity patients" under the Medicare program and some "welfare' patients" either referred to it by welfare agencies or requested by the Employer when it has vacancies, and absorbs such losses as might be incurred thereby. Once accepted, such patients are allowed to remain even though their Medicare or other support sources expire. Beyond patient fees, such money as is necessary for the Employer's operation is obtained by donations and gifts, and by borrowing from commercial lenders. During the 12 months preceding the hearing, the Employer grossed revenues in the approximate amount .of $960,000. During this same period, its direct and indirect purchases of goods and supplies from outside the State exceeded $7,000. As indicated above, the Employer categorizes its extended care facility as "practically" a nonprofit hospital and contends, therefore, that it is statutorily exempt from the Act. Alternatively, it urges the Board to decline to assert jurisdiction over it because its nonprofit status renders its operation noncommercial in nature. We find no merit in these contentions. The record clearly shows that the Employer is not classified as a hospital by licensure, accreditation, its articles of incorporation, or its charter, and that it acknowledges itself to be, and is certified under Medicare as an extended care facility which, we find, falls within the ambit of the type of nonprofit subacute facility over which we previously asserted jurisdiction in Drexel Home, Inc., 182 NLRB No. 151.' Moreover, mg that the latter "would be more inclined to receive patients at either a reduced rate or no rate, that is, receive a charity patient, then would a profit or proprietary institution " ' "An establishment with permanent facilities that includes 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 " '185 NLRB No. 87 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since the Employer renders the same services as similar proprietary health facilities, competes with such facilities for residents willing and able to pay its $400-$500 monthly charges, and participates in national health-care programs in precisely the same manner and to the same degree as those facilities, we r 3d that the Employer exerts a similar and suL'tantial effect on commerce that is neither infiaenced nor lessened by its nonprofit status." Accordingly, for all of the reasons set forth herein and in Drexel, and because the Employer receives in excess of $100,000 in gross revenues per annum, we find that it will effectuate the policies of the Act to assert junsdiction over the Employer's extended care facility. 2. The labor organizations involved claim to repre- sent certain of the Employer's employees. 3. A question affecting commerce exists concerning the representation of certain of the Employer's employ- ees within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. As finally developed at the hearing, Petitioner seeks to represent 136 or 137 of the Employer's 150 full-time and 20 part-time employees in a unit consisting of nurses' assistants, nurses' aides, orderlies, assistant maintenance engineer, outside lawn men, housekeepers, laundry workers, dietary aides, assistant physical therapists, and licensed practical nurses (LPNs),5 excluding all office clerical employees, pro- fessional employees, guards, and supervisors.' The Employer, which has no history of collective bargaining, agrees with the aforesaid unit except that it would exclude the LPNs as supervisors and also because their interests differ from those of the included employees. For this latter reason, Intervenor also would exclude LPNs as professionals. The record shows in this regard that the Employer's LPNs are licensed by the State of Tennessee after having attended a vocational school attached to a hospital for a period of 13 months and thereafter passing a qualifying state examination . They punch a timeclock, as do all employees except the director and assistant director of nursing, and receive the same fringe benefits as all other employees. The record ' Drexel Home, Inc, supra See also Bethany Home for the Aged, 185 NLRB No 85, a companion case to this proceeding 5 Petitioner's original petition excluded LPNs b The parties agreed to exclude the Employer's six registered nurses (RNs) as supervisors contains no -reference to their pay other than to state that "there is a difference in pay in all of [the Employer's] categories [of employees]." They, together with the Employer's six registered nurses, are the only employees entitled to wear a cap. The LPNs are in charge of the Employer's five stations' which operate on a 3-shift 7-day week basis. As charge nurses they supervise the work of two to six employees including nurses' assistants, nurses' aides, and orderlies, depending on the number of patients in the station. They have the authority to recommend wage increases, enforce the Employer's rules, discipline employees, and relieve ill employees from duty. They also effectively recommend hiring and in emergency situations may discharge employees. In addition, they chart patients' records in accordance with the doctors' instructions, prepare and administer medication, "check[s] on the intravenous that has been given by the RNs," and observe patients for vital signs. We find that the LPNs are supervisors within the meaning of the Act, and we shall exclude them from the unit. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: All nurses' assistants, nurses' aides, orderlies, assistant maintenance engineer, outside lawn men, housekeepers, laundry workers, dietary aides, and assistant physical therapists, excluding all office clencal employees, licensed practical nurses, reg- istered nurses, professional employees, guards and supervisors as defined in the Act. [Direction of Election8 omitted from publication.] ' The Employer points out that while RNs normally are in charge of stations in a hospital , it is not economically feasible to follow such procedure in nursing homes The Employer's RNs, for example, are its main supervisors and are in charge of the Employer 's "whole building" during the shifts on which they work There is always at least one RN on duty ' 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 access 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 Company, 394 U S 759 Accordingly, it is hereby directed that election eligibility lists , containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 26 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make these lists available to all parties to the election No extension of time to file these lists 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