The Martin Luther Foundation, Inc.

THE SWANHOLM 45 The Swanhoim, an operation of The Martin Luther Foundation, Inc.' and Bay Area Local Union 1010, Petitioner. Case 12-RC-3449 October 21, 1970 DECISION AND DIRECTION OF ELEC- TION By MEMBERS FANNING, 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 Ernest Brenner of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, the case was transferred to the Board for decision. Thereafter, a brief was filed by the Employer.2 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 rulings 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 wholly owned operation of the Martin Luther Foundation, Inc., a private, religiously oriented, nonprofit corporation organized under the laws of the State of Florida for the purpose of engaging in scientific, religious, charitable, and other benevolent endeavors. One of those endeavors is the Employer's operation of a medicare certified, religiously affiliated, charitable, nonprofit 274-bed nursing and convalescent home.3 Both the Founda- tion and the Employer are affiliated with, but not controlled by, the American Lutheran Church. The Employer offers intensive, intermediate, and custodi- al nursing services on a continuous basis to both paying and charity patients, all of whom are over 65 years of age, and virtually all of whom are drawn from within the State. It also offers rehabilitative and restorative treatment and services in a fairly new I The Employer's name appears as amended at the hearing. z We hereby grant the Employer's motion to amend its brief. 3 The Martin Lutheran Foundation, Inc., consists of the Employer, an admitted nursing home, and Lutheran Towers, a 91-unit retirement apartment-hotel. The Foundation originally established the Employer to care for residents of Lutheran Towers who became ill or infirmed. Today, the Employer accepts patients from all sources. 4 A Federal program which supplies funds for construction of nonprofit health-care facilities. 5 The Employer avers that it has an "open staff" of 187 doctors. The 186 NLRB No. 16 building which was constructed with funds supplied under the Hill-Burton program.4 It has no medical staff per se,5 and such medical advice and treatment as is required by its patients is supplied by their personal physicians. The Employer also has entered into an undisclosed arrangement with three doctors, apparently from the "open staff," who are willing to tend patients whose doctors are unavailable. In addition to the foregoing nursing and rehabilita- tive services, the Employer also provides its patients with various social activities and, for the benefit of both its patients and Lutheran Towers residents, with Sunday religious services which are conducted in the Lutheran faith in a church located on its premises. The Employer also provides facilities for other religious denominations. The Employer annually grosses revenues in excess of $250,000. During 1968, approximately half of its gross revenues were derived directly or indirectly through Medicare payments. It annually purchases goods and supplies in excess of $50,000 from suppliers located within the State who, in turn, receive those goods and supplies directly from points outside the State. The Employer urges the Board to decline to assert jurisdiction over it because, it contends, its religious affiliation and nonprofit status renders its operation noncommercial in nature, and because its operation is analagous to, if not the same as, the operations of statutorily exempted nonprofit hospitals and, there- fore, it also should be accorded a similar exemption. We find no merit in these contentions. The Employer's nonprofit extended care facility renders essentially the same type of health care services as similar proprietary6 and nonproprietary7 extended care facilities, and clearly is the type of subacute facility over which we have heretofore asserted jurisdiction in Drexel Home, Inc., 182 NLRB No. 151, and related cases.8 Moreover, the impact on commerce generated by its direct and indirect purchases of goods and supplies and its participation in various publicly funded, nationally oriented health care programs is neither influenced nor lessened by its religious affiliation or its nonprofit status .9 Accord- ingly, for the reasons set forth herein and because the Employer receives in excess of $100,000 in gross revenues per annum, we find that it will effectuate the "open staff" consists of all doctors who have, or have had, patients at the Employer. 6 University Nursing Home, Inc., 168 NLRB 263. 7 Good Samaritan Hospital, a/k/a Good Samaritan Home For The Aged, 185 NLRB No . 86; Bethany Home For The Age4 185 NLRB No. 85. 8 "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." 9 Rosewood, Inc., 185 NLRB No. 87; Drexel Home, Inc., supra. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policies of the Act to assert jurisdiction over the Employer's extended care facility. 2. The labor organization involved claims to represent certain of the Employer's employees. 3. A question affecting commerce exists concern- ing the representation of certain of the Employer's employees within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of "all employees employed by the Employer at its location at 6200 Central Avenue, St. Petersburg, Florida, including aides, maids, orderlies, licensed practical nurses, kitchen employees, laundry employees, main- tenance employees and housekeeping employees," and further including all regular part-time employees falling within any classification which may be included in the unit, and excluding the administrator, assistant administrator, all registered nurses, the registered physiotherapists,,, head, chef, ; heady house- keeper, head maintenance supervisor, the social work- er, the recreational director, the bookkeeper, the night watchman, ward clerks, switchboard operators, the admitting clerk, the nursing secretary, office clerical employees, professional employees, guards, and supervisors as defined in the Act. The Employer agrees with the aforesaid unit except that it would include the ward clerks, switchboard operators, the admitting clerk, and the nursing secretary. The three ward clerks in dispute work on the day shift only in the various nursing units to which they are assigned. Approximately 50 percent of their time is spent in the registered nurses duty station, which is located separately from the Employer's office clerical employees, where they prepare supply vouchers, chart patients' temperatures, pulse, respiration, intake and output, and answer the phone. The remainder of their time is spent on the unit floor delivering newspapers and mail to patients, running errands, getting sup- plies, writing letters for them, and transporting them. Although their primary purpose is to free nurses aides and orderlies from performing the foregoing clerical and transportation duties, these latter employees nevertheless occasionally perform those duties. Ward clerks need not know how to type, nor are they required to possess any other particular skills or educational background. Their wages are not more than those paid to aides or orderlies, and they receive the same fringe benefits as all other employees. They, together with aides, orderlies, and licensed practical nurses, are supervised by the nursing unit registered nurse. In view of the ward clerks' duties and services, their functional interchange with aides and orderlies, their common supervision with other unit employees, and the absence of affirmative evidence indicating that these employees lack a community of interest with other employees included in the unit, we shall include them in the unit. The Employer's one full-time and two regular part- time switchboard operators man the switchboard, act as information clerks for the benefit of visitors, sort the mail delivered to the Employer, collect money for newspapers and stamps which are located on a counter near their switchboard and which are purchased by patients or visitors, and accept payment for bills rendered by the Employer. The majority of their time, however, is spent performing switchboard duties. They are supervised by the Employer's administrator, and are separately located from, and have virtually no contact with, other unit employees. Inasmuch as switchboard operators are essentially office workers, we shall exclude these employees from the unit.10 As to the admitting clerk, this employee, who must be a typist, answers inquiries with regard to the availability of rooms at the Employer, shows prospec- tive patients around the Employer, performs all the clerical work necessary to admit a patient, and shows newly arrived patients to the floor or nursing unit to which they are assigned. She is supervised by the Employer's administrator and assistant administra- tor, is located in a separate admitting clerk's office, and has very limited contact with other unit employ- ees. This employee is an office clerical worker, and we shall exclude her from the unit. The Employer's one nursing secretary shares an office with the Employer's assistant director of nurses whom she assists by performing the clerical and typing work necessary to process Medicare, Blue Cross, Blue Shield, and private insurance forms which are filed with the patients' doctors and insurance companies. She has no contact with patients, and her contact with other employees is very limited and is confined to registered nurses who make out some of the orders which she relays to the doctors, to aides, and orderlies to whom she passes out paychecks, and to licensed practical nurses with whom she has "very little" undisclosed dealings. This employee also is an office clerical worker, and we shall exclude her 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 meaning of Section 9(b) of the Act: All employees employed by the Employer at its location at 6200 Central Avenue, St. Petersburg, Florida, including aides, maids, orderlies, licensed practical nurses, ward clerks, kitchen employees, 10 Cf Haleyville Textile Mills, Inc, 117 NLRB 973, 974 THE SWANHOLM 47 laundry employees, maintenance employees, and housekeeping employees, and further including all regular part-time employees within the foregoing classifications of employees, excluding the admin- istrator, the assistant administrator, all registered nurses, the registered physiotherapists, head chef, head housekeeper, head maintenance supervisor, the social worker, the recreational director, the bookkeeper, switchboard operators, the admitting clerk, the nursing secretary, the night watchman, office clerical employees, professional employees, guards, and supervisors as defined in the Act. [Direction of election" omitted from publication.] 11 In order to assure that 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; N.L.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 12 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.