Carle Clinic Association

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carle Clinic Association and Illinois Nurses' Associa- tion, Petitioner. Case 38-RC-824, August 4, 1971 DECISION ON REVIEW BY CHAIRMAN MILLER 'AND MEMBERS JENKINS AND KENNEDY On ,Tune 26,,1970', the Regional Director for Region 13 issued a Decision and Direction of Election, a copy of which is attached in,pertinent part hereto, in which he asserted jurisdiction over Carle Clinic Association and found appropriate a unit of its registered nurses. The Regional Director declined. to assert jurisdiction over the contiguously located 'Carle Foundation Hospital, whose registered nurses were also sought by Petitioner, on the ground that the' Hospital is exempt from the Board's jurisdiction under the provisions of Section 2(2) of the National Labor Relations Act, as amended. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended,, the Petitioner filed,a timely request for review contending that the Carle Clinic. Association and the Hospitalare a^single employer-within the meaning ofof, the Act and that a unit including the registered nurses of both the Clinic and the, Hospital is appropriate. The ' Board, by telegraphic `order dated' August -17, 1970, granted review and stayed the election. The Employer and Petitioner each filed a briefon review. i In contending that the Clinic and 'the-Hospital area single employer within the meaning of the Act, Petitioner primarily relies on the, Board's decision in Parkvue Medical Center and General Hospital, 183 NLRB No. 65. We conclude, however, that Parkvue is inapposite. In Parkvue the Board found that an outpatient clinic pharmacy, and a separately incorporated "not for profit" hospital were, together, a commonly controlled single employer within the meaning of the Act. Since the clinic and pharmacy ventures-of`this single employer were operated on a profit-making basis, the Board - concluded that the Hospital was not exempt from the Board's jurisdiction under the provisions of Section 2(2) of the Apt.: In> Parkvue, Dr.- Park owned the clinic and 50 percent of the pharmacy and Dr. and,Mrs. Park owned the building in which the hospital, pharmacy, and clinic rented space. Dr. and Mrs. Park received all the rental moneys. Here' the Hospital owns the complex of buildings which houses the Clinic and Hospital and the rent payments are credited to the Hospital's fund. Profits, if any, from these rental moneys are not distributed but serve rather to defray nonreiriibursable hospital expenditures. In addition to-being the landlords in Parkvue, Dr. and Mrs. Park served the hospital corporation as trustees and directors and in other capacities. Dr. Park was an officer (vice president) and a member of the executive committee ofthe board of directors. He was also the Hospital's salaried medical director and, contrary to the Hospital's bylaws, was also its acting administrator. Mrs. Park-was assistant administrator, secretary and treasurer (in which capacity she signed hospital checks), and served on several committees. Thus, the Parks not only exerted influence on the Hospital's overall policy and operations but `actually controlled and manged its day-to-day affairs. Here, doctors 'and' dentists associated with the' Clinic constitute ra minority of the members and trustees of the Hospital corporation and do not manage its day-to-day affairs. In Parkvue, the omnipresent Dr. Park, as a 5,0-percent owner of the pharmacy, benefited from the profit's' of the pharmacy which did business with "the hospital and the clinic and the patients of both. Here the pharmacy is owned by the Hospital and its profits, as with rental payments from the Pursuant to, the provisions of Section 3(b) '`of the National Labor Relations Act,-as 'amended, the Board has delegated its powers in'connectiori with-this ca.°se to a three-member panel. The Board has carefully reviewd the "entire record in this case -with respect to the issues under ereview, and hereby affirms the Regional Directors's Decision.' Accordingly, the case is remanded,to, the'Regional Director for Region 13, for the,purpose of holding, an election pursuant to his ,Decision-and- Direction^:of Election, except that the payroll period for determin- ing eligibility shall be that immediately preceding} the date of issuance.? DECISION AND DIRECTION OF`'", EL- ECTION Upon a petition duly filed under_Section 9(c) of the National, Labor,, Relations _Act,,' a hearing was, held before a, hearing, officer ,of tie, National ,,;Labor Relations Board. -The ,hearing officer's-rulings made at the hearing are=free from prejudicial- error and, are hereby affirmed} , - < . Pursuant to, the provisions of Section 3(b) of the Act,:the, Board' has-delegateditspowers inconnection with this case to the undersigned Regional Director: Upon', the entire record in `this ;case the ' Regional Director finds: 1. The Employer is engaged in. commerce within the meaning of the Act and it will effectuate the Clinic,',are not distributed but are credited, to -the previously described hospital fund. ,In Parkvue, there was also significantt.integration between the, operation of diet hospital and those,,of'-the clearly commerical pharmacy. Thus, the pharmacy clerk-was paid out of hospital funds and the pharmacist, although -paid ` a 1-salary , jointly by, the, hospital and the pharmacy;,, acted as purchasing agent, custodian;,ands=dispenser, of drugs and supplies for both the Clinic and the Hospital. 2 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; N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that a corrected election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Officer-in=Chargeof Subregion 38 within 7 days of the date of this Decision -onReview . -TheOfficer-in-Charge shall make the fist available ;to. aB parties to the election.-No extensions of time to file this list shall be granted except in extraordinary circumstances. Failure to comply with this requirement shall be ground s for setting aside the election whenever proper objections are filed. 3` Prior to the "hearing,' Petitioner'subpoenaed ,certain material from the Clinic and Foundation which was not produced at the hearing . Thereafter, after hearing, on April 6, 1970,-the-Foundation,and Clinic filed ,Petitions, to Revoke Subpoenas Duces Tecum on the grounds that theanaterial sought to be produced (except that which isalready a part of the record'in "this case) i^irrelevant. Those documents are hereby received in evidence in this proceeding'.' As to the request ' for annual reports, employees' information guides, financial, statements and issues of "CarleNews;";gomg back 5 years from December 31, 1969 , , I find that these are irrelevant to the issue of, the relationship of the Chine and Foundation a't the time the instant petition was filed. With regard to the other material requested , I find that they have either been produced, although not necessarily in the exact form requested, or do not exist. Accordingly, the subpoenas will be revoked. 192 NLRB No. 60 CARLE CLINIC ASSOCIATION purposes of the Act to assert jurisdiction herein.4 2. The labor organization(s) involved claim(s) to represent certain employees of the Employer. 3. A question affecting commerce exists concern- * Carle Clinic Association (herein called the Employer or Clinic) is an unicorporated association of doctors engaged in the private group practice of medicine and surgery. It employs approximately 26 registered nurses in the unit herein found appropriate, regarding which there is no collective bargaining history. The parties stipulated that the Clinic is engaged in commerce within the meaning of the Act and is subject to the jurisdiction of the Board. Carle Foundation (herein galled the Foundation) is a corporation organized in 1946 under the Illinois Not-For-Profit Corporation Act.,Its primary function is, to operate a hospital in Urbana, Illinois, known as the Carle Foundation Hospital . According to a 1968 issue of a Foundation- Clinic employees information guide, the initial structure of, the complex of buildings presently constituting the Foundation Hospital was completed about 1925 and the Hospital closed and reopened on several occasions prior to 1930, when it closed due to the Depression . Under the guidance of Doctors Rodgers and Davidson, a partnership which preceded the Clinic, the Hospital was reopened about 1932 . The Hospital continued to grow, and in 1946 six member physcians of the Clinic incorporated the Foundation as a Not-For-Proft Corporation whose purpose was to operate a non- proprietary hospital and perform other functions normally associated with the operation of such a hospital. The six Clinic physicians constituted the entire Board of Directors and regular members of the Foundation until approximately 1964, when the Foundation articles were amended to permit the Directors to designate additional regular members . Since 1968, the Foundation has had 30 members who elect an I1 -member Board of Trustees (formerly known as Board of Directors until about 1968), which governs the Foundation and is responsible for the overall operation of the Hospital. Six of said Trustees are sufficient to constitute a quorum. The Foundation bylaws require a majority of members and Trustees to be laymen. In accordance with these bylaws, 20 out of 30 members and 6 out of II Trustees are laymen and the rest are doctors or dentists. In addition to being members and/or Trustees of the Foundation, these doctors and dentists are also associates of the Clinic. The Foundation does not employ any physicians or dentists. Of the 71 physicians and dentists on its medical staff, 56 are also associates of the Clinic and this represents the entire complement of full-time physicians and dentists presently associated with the Clinic. However, a number of the Clinic physicians serving on the Foundation's medical staff also serve on the medical staffs of other hospitals in the area. Appointments to the Foundation medical staff are made by the Board of Trustees on recommendation of the existing medical staff. Substantially all Clinic patients needing hospitalization are treated at the Foundation Hospital. The operation of the Hospital is financed by operating revenue from patients who use the Hospital , by rent received from the Clinic and by private charitable donations . In addition, the Foundation has received grants from the Federal Government, under the Hill Burton Act, to finance construction of new buildings . The Foundation has been exempted from payment of Federal income taxes and Illinois property taxes. The Clinic and Foundation carry out their respective functions in the same complex of interconnected buildings . Legal title to these buildings resides in the Foundation and it leases approximately 40,000 square feet therein to the Clinic. Most of the Clinic offices are located in one of these buildings, but certain of its offices and/or functions are interspersed throughout buildings primarily utilized by the Hospital . Thus, the Clinic leases space in the Hospital emergency room facilities for examination centers And pediatric offices and holds its monthly amputee clime in the Hospital's physical therapy department . It further appears that the Clinc's administration offices, computer space, special process X-ray and speech therapist facilities are located wholly, or in part, outside the main building where most Clinic offices are located. The Foundation and Clinic share certain facilities or services, such as the switchboard, liability insurance policy, employee newsletter, medical insurance policy, mail room , security services and parking; the expenses of which are pro-rated. The Foundation 513 ing the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of maintains and staffs such facilities as a purchasing department , central supply photocopying service and printing service which may be utilized by the Clinic, but expenses incurred for materials therefrom are charged to the Clinic. On the other hand, the Clinic, operates and staffs adata processing ,service and laboratory services which the Hospital may utilize upon payment of expenses involved. The Foundation also maintains the medical record library, medical library and dietitian service which can be used by the Clinic, apparently without expense. The Foundation contracts with the Clinic to provide all laboratory services such as hematology; chemistry, microbiology, clinical miseroscopy, sero-mimunology, pathology, necropsy and autopsy, services, and allergy treatments. The Foundation and Cline may bill patients for vertain services not performed by themselves and turn the fee over to the organizaton performing the service with a 5.3 percent billing fee. These organizations maintain an interorganization account to clear and settle balances between themselves. Thus, payments are netted out against each other periodically and a check issued clearing out the balance in the interorganization account Patients at the Clinic and Hospital have a single medical record. The nursing staff of the Clinic and the nursing staff of the Hospital are separately hired, supervised, have different scales of pay, do not temporarily or permanently interchange, have different fringe benefits, have different periods of review for merit increases, have differeent pay periods , and have different retirement programs . The Foundation and Clinic have separate managers who are responsible for the day-to-day operations of their respective organizations. Contrary to the Foundation and Clinic, Petitioner contends that the registered professional nurses (approximately 150) employed by the Foundation at the Hospital it operates should be included in the unit found appropriate on the grounds that the Clinic effectively controls the operations of the Foundation and, accordingly, is a joint employer of these employees. It further contends that, because of the Clinic's control over the Foundation, the net earnings of the Foundation inure to the benefit of associates of the Clinic and, therefore, there is no statutory bar to the Board asserting jurisdiction over the Foundation under Section 2(2) of the Act. On the basis of the record evidence set forth ibove, I conclude that the Clinic and Foundation do not constitute joint employers of the nurses employed at the Hospital, nor do they constitute a single employer within the meaning of the Act. In this reagrd, I not that associates of the Clinic do not constitute a majority of the members or Trustees of the Foundation; that each organization has a separate administrator in charge of the day-to- day operations of their respective organizations; and that there is a significiant difference in the wages, hours, terms and conditions of employment between the nurses employed by their respective organizations, indicating a lack of common labor policy. There is evidence of shared facilities or services but there is also record evidence showing that these are paid for by their respective organizations , except in such relatively insignificant services as medical records library and medical library. While it is true, as Petitioner suggests, that these oral arrangements for purchases of facilities or services could be used to siphon off earnings from the Foundation to the Clinic, the record evidence of such payments between the organizations do not show that this has, in fact, occurred. This, it is noted the payments between the two organizations, in this regard, involve substantial amounts of money and, therefore, appear to be arms length dealings. Furthermore, I am unable to find, on the basis of evidence in the record, that net earnings of the Hospital inure to the benefit of the Clinic or any particular associate thereof since the medical staff of the Hospital is not employed by the Hospital and, as noted above, their various mterorganiza- tion transactions appear to be bona fide vendor-vendee relationships. Accordingly, I find that the Foundation falls within the statutory exemption of enterprises over which the Board may not assert jurisidction and the petition will be dismissed insofar as it seeks to cover the registered professional nurses employed by the Foundation. Sierra Hospital Founda- tion, 181 NLRB No. 143. 513A DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective ;bargaining within the meaning of Section 9(b) of the Act: 5 All full-time and regular part-time registered professional nurses employed by Carle Clinic b The Clinic, contends that Petitioner is not a labor organization entitled to use the -Board's processes because it admits supervisors to membership and these supervisors hold policy-malting positions within the organization. The record indicates that employees particpate meaningfully in the Petitioner; that the Petitioner exists in whole or in part for the purpose of dealing with employers concerning wages, hours and terms and conditions of employment; and that it has, in fact, negotiated collective bargaining agreements with employers. Accordingly, it meets the literal requirements of Section 2(5) of the Act. While Petitioner does have supervisors 'as members and some of these supervisors serve on the - Board of Directors, the record indicates that,, none of the Clinic's supervisors '(as opposed to the Foundation's supervisors), are presently serving on the Board of Directors. Association at its Urbana, Illinois, clinic,, but excluding the head nurse,6 watchmen, guards, supervisors as defined in they Act, and all other employees? In view of the foregoing and the entire record, I find that Petitioner is a labor organization within the meaning ,of the Act and is qualified -to represent the employees of the Employer' 'herein,."International 'Paper Company,, 172 NLRB No. 100. - ` 6 The.record , shows that the head, nurse arranges the schedules of five nurses working in the pediatric office, schedules their work hours, schedules' vacation periods and can make effective recommendations with respect to' disciplinary actions or merit increases. ' Accordingly,' I find that she is a supervisor within the meaning of the Act. - , 9 Since the unit found appropriate herein is other than that petitioned for, the Petitioner will be given 5 days' to inform the-Regiona1 'Director in writing whether or not it wishes to appear on'the ballot.