Bob's Ambulance Service

BOB'S AMBULANCE SERVICE Bob's Ambulance Service and Hospital & Institutional Workers, Local 250, Service Employees International Union, AFL-CIO, Petitioner. Case 20-RC-8602 July 31, 1969 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA Upon a petition duly filed on January 24, 1969, under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Gerald R. Lucey. 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. Briefs have been filed by the Petitioner and the Employer. Upon the entire record in this case, the Board finds: 1. The Employer contends that its operations are retail in nature and that jurisdiction should be declined since its annual operations do not satisfy the retail standard. In the alternative, the Employer contends that even if the nonretail standard applies, the revenues it derived from services performed for hospitals cannot be included in calculating the jurisdictional amount because the services are intimately associated with the exempt functions of the. hospitals. The Employer operates an ambulance service in and about the city of Oakland, California. During 1968, the Employer received over $235,000 gross revenues from the following sources: General Public $138,000 Kaiser Hospitals $ 90,000 Southern Pacific Hospitals $ 3,000 City of Oakland $ 4,000 The jurisdictional facts indicate that the Employer does not meet the retail standard and, apart from the $90,000 received from Kaiser, does not have sufficient inflow or outflow to meet the Board's nonretail standard. The Employer's operations with respect to Kaiser Hospitals consist of transporting patients to and from two hospitals, Kaiser-Oakland and Kaiser-Hayward. Although there is no formal contract, Kaiser calls the Employer 90- 100 times per week for ambulance services. The Employer bills Kaiser weekly. Kaiser sends a check after authorizing each call. When a patient is not covered by Kaiser's health plan, Kaiser rejects the bill, and the Employer bills the patient directly. This occurs with respect to about 1 percent of the Kaiser billings. Otherwise Kaiser apparently passes on the costs of the ambulance service to its patients through health insurance premiums. The Employer argues at one point that, as individuals are the ultimate users of its ambulance services, the nonretail standard may not be applied in determining the Board's jurisdiction. The Board has held that where both retail and nonretail operations are involved, either the retail or nonretail standards may be applied.' In addition, the nonretail standard has been applied where services were provided directly to the consuming public and where, as here, the cost of said services were paid for by a commercial enterprise.2 Accordingly, as the services in question are performed in response to calls from Kaiser, which pays for the services in 99 percent of the cases as part of the benefits conferred upon insured patients, we find that the services performed at Kaiser's behest are nonretail. Turning to the question of whether that standard has been met in this case, the Board as a matter of policy will regard as indirect outflow, in computing jurisdictional amounts, the value of services performed for organizations which are themselves exempt from the Board's jurisdiction, so long as the exempt organization is of the magnitude necessary for the assertion of jurisdiction over comparable nonexempt organizations.3 Each Kaiser Hospital would constitute a comparable exempt organization under this principle.4 However, the Employer takes the further position, that even assuming that the nonretail standard is met herein, jurisdiction should be declined as a matter of policy. In this regard, the Board has consistently held that the inclusion as indirect outflow of services performed for an institution exempted from the process of the Act is dependent upon the relationship of the services performed to the exempted functions of the institution.' The Board has found that some services performed for exempt hospitals were so intimately connected with patient care purposes of the hospitals as to warrant withholding jurisdiction.' It has reached the opposite conclusion in other cases.' The operation involved in 'Man Products, Inc., 128 NLRB 546. 'Chicago Federation of Musicians, Local 10, 153 NLRB 68, 75-76; Marty Levitt, 171 NLRB No. 94. See also Carroll-Naslund Disposal, Inc., 152 NLRB 861, where services provided to the consuming public and billed directly to the consumers were considered nonretail. 'Siemons Mailing Service. 122 NLRB 81, 85, in. 12. 'The parties stipulated that each Kaiser Hospital purchased over $50,000 worth of goods from outside the State . Although it is not clear from the record, notice may be taken that the Kaiser Hospitals are nonprofit hospitals. Kaiser Foundation Hospitals were found to be such in Southern Permanente Services, Inc., 172 NLRB No. 148. 'For a diiscusslon ofthe rule, its purpose and-its application, see Herbert Harvey. Inc.. 171 NLRB No. 36. 'Horn & Hardart Company, 154 NLRB 1368; Inter-County Blood Banks, Inc.. 165 NLRB No. 38. 'Bay Ran Maintenance Corp., 161 NLRB 820; Southern Permanente Services , Inc.. supra. 178 NLRB No. I I 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the present case is an ambulance service, one which, though necessary to hospitals' operations, is for the most part performed off the hospital's premises, and performed for other entities and individuals as well. As indicated, the Employer has no contract with the Kaiser Hospitals. The record discloses it purchases its own equipment, and hires, schedules, and supervises its own employees. There is no evidence or contention that the Kaiser Hospitals exercise any control over these functions. Based upon an examination of the operation involved here, we conclude that the intimate relationship claimed to exist in some of the foregoing cases does not exist in the instant case, and they are therefore distinguishable on their facts. For the above reason we find that the services performed for Kaiser are nonretail and the revenues derived therefrom are includable in computing indirect outflow. Accordingly, as these sums exceed $50,000 annually we find that it would effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agree that all seven full-time drivers and stewards should be included and the one clerical employee excluded from the unit, along with the owner and his wife, the only supervisors. The Employer, however, would exclude, and the Petitioner would include, all part-time drivers and stewards. The part-time employees work principally on the weekends performing substantially the same work as the full-time drivers and stewards. There are two 24-hour shifts during the weekend, and the part-time employees may work neither, either or both. If the weekend shifts are not covered by the employees in dispute, full-time drivers and stewards, or the owner and his wife, must work during these periods. The part-time employees work no fixed schedule of weekends. Instead, they notify the Employer anywhere from Monday to Wednesday whether or not they want to work on the weekend. The Employer has never advised any of them that work was unavailable. In fact the Employer has often made an effort to put them on if they called in as late as Friday. It is the Board's policy to include all regular part-time employees, who perform substantially the same work as full-time employees, in the unit of full-time employees. Accordingly, we find the following to be a unit appropriate for the purposes of collective bargaining: All full-time drivers and stewards, and all regular part-time drivers and stewards, excluding all clerical employees and supervisors as defined by the Act. There remains the question of which part-time employees have worked with sufficient regularity to possess a community of interest with included full-time employees. The record indicates that both Hernandez and Rodrigues have worked the majority of weekends between the time they were hired and the date of the hearing. Since their employment history shows a continuity of employment at all times material, we find that they are regular part-time employees and are included in the unit. As the record is inconclusive with respect to the three remaining part-time employees, we shall permit them to vote subject to challenge. [Direction of Elections omitted from publication.] '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 shall 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 20 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.