Clover Fork Medical Services, Inc.

CLOVER FORK MEDICAL SERVICES, INC. Clover Fork Medical Services, Inc.' and International Union of District 50, Allied & Technical Workers of the United States and Canada. Case 9-RC-9492 November 14, 1972 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Edward H. Burton. 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, this case was transferred to the Board for decision. Thereafter, a brief was filed by the Employer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Petitioner seeks to represent certain employees employed by the Employer at the Daniel Boone Clinic in Harlan, Kentucky. The Daniel Boone Clinic is an organization of approximately 47 physicians who provide their services at three out- patient clinics at Appalachian Regional Hospitals located at Harlan, Middlesboro, and Whitesburg, Kentucky. The Employer provides assistance to the physicians by supplying the clinics with registered and licensed practical nurses, nurses aides, techni- cians, and office clericals, by scheduling appoint- ments for patients, by handling the billing of patients and by purchasing the medical and other supplies used by the clinics. Each of the Appalachian Regional Hospitals is required to have an out-patient i The petition as filed named Willard and Woolsey Professional Service Corporation d/b/a Daniel Boone Clinic as the employer together with Clover Fork Medical Services, Inc. At the hearing the petition was amended to reflect that Clover Fork Medical Services, Inc., is the Employer of the employees involved herein. 2 In each case the clinic rents facilities from an Appalachian Regional Hospital. The Harlan and Middlesboro clinics are in separate buildings adjacent to the Appalachian Regional Hospital. The Whitesburg Clinic is located within the hospital proper. a In Centerville Clinics, Incorporated, 181 NLRB 135, the Board found that this fund is based in the District of Columbia and the revenue to the fund derives from contributions of coal operators at 40 cents per ton of coal mined pursuant to the National Bituminus Coal Wage Agreement, a 291 clinic and the physicians at the Daniel Boone Clinic together with the Employer serve this function.2 The hospitals also use various testing facilities in the clinics for testing regular hospital patients. The Employer employs approximately 125 employ- ees at all three clinics; 80 at Harlan, 27 at Middlesboro, and 18 at Whitesburg. During the 12- month period ending December 31, 1971, the Employer had income of $966,484,48. Of this $438,066 was received from the United Mine Workers welfare fund.3 The Employer purchased the following during that period: drugs-$27,358.93, medical supplies-$54,813.65, other sup- plies-$17,493.90, and postage-$8,051.84. Of its purchases, 99 percent were made from the Appalach- ian Regional Hospitals. The Employer states that it does not know the sources of these supplies. Some of the remaining purchases were purchases made from out of State. The Employer had a telephone bill of $34,464.20 and other utility expenses of $5,577.50. It purchased group insurance from Phoenix Mutual Insurance Company in the amount of $33,158.47. The Employer contends that it is exempt under the provisions of Section 2(2) of the Act and that its operation is local in nature and does not meet any of the current jurisdictional standards. The Employer is principally engaged in aiding the Daniel Boone Clinic to provide out-patient medical services, and although the Employer is operated on a nonprofit basis, it is not primarily engaged in education research activities and is not solely on the basis of its own operations a "hospital" as that term is defined in Section 2(2) of the Act.4 As to its relationship with the Appalachian Regional Hospitals, they are sepa- rate corporate entities and the operations of the Employer are not incidental to and intimately connected with the patient care and medical educa- tion purposes of the hospitals, and therefore the Employer is not an integral part of the hospitals. The hospitals do not control the Employer, nor does the Employer control the hospitals; the Employer is not by reason of its relationship with the Appalachian Regional Hospitals excluded from the definition of an employer as that term is used in Section 2(2) of the Act.5 The Employer's impact on commerce is sufficient collective-bargaining agreement between the UMW and coal mine operators in the coal industry . See International Union, United Mine Workers of America (Dixie Mining Company), 165 NLRB 467, remanded 399 F.2d 977, decision on remand 188 NLRB No. 121. 4 Mayo Clinic, 168 NLRB 557. 5 Centerville Clinics, supra, Quain and Ramsiad Clinic, 173 NLRB 1185. Although the Employer's operations may be, by virtue of its services to the Daniel Boone Clinic, intimately connected with the operations of the clinic, neither its or the clinic's operations are intimately connected with the medical services and patient care operations of the hospital. In this respect the operations of the Employer and the clinic are indistinguishable from the operations of the Centerville Clinics. 200 NLRB No. 44 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in our view to warrant the Board in asserting jurisdiction over it. Its annual gross revenue of nearly $1 million far exceeds the annual gross revenues standards set by the Board of $250,000 for proprie- tary hospitals,6 and $100,000 for proprietary nursing homes.? Further, the clinic received, during 1968, substantial direct dollar inflow of over $400,000 from the United Mine Workers welfare fund, the revenues of which are contributed by the coal industry generally8 to provide medical benefits to employees working under collective-bargaining contracts. In view therefore of its substantial involvement in operations affecting interstate commerce, we find that the Employer is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The Petitioner seeks a unit including all employees of the Employer at its medical facility in Harlan, Kentucky, excluding all physicians, registered nurses; licensed practical nurses, professional employees, guards, and supervi- sors as defined in the Act. The Employer contends that a unit limited to its Harlan facility is inappropri- ate and that an appropriate unit would include the employees at all, three of its facilities. The Employer contends that certain excluded classifications should be included in the appropriate unit.9 The Petitioner has indicated that it is willing to proceed to an election in any unit found appropriate. The Employer's Harlan location is 48 miles from its Whitesburg location and 50 miles from its Middles- boro location. The three clinics are administered centrally from the Harlan location. However, each clinic has local supervision. The employees at each of the three clinics enjoy the same fringe benefits. The payroll is processed and bills are paid through the Harlan clinic. There is no evidence of employee interchange between the clinics. There has been no collective-bargaining history. The distance between the clinics and the apparent lack of employee interchange is sufficient to establish that the employ- ees in the Harlan clinic have a separate community 6 Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266 7 University Nursing Homes, Inc., 168 NLRB 263 s This factor, along with the much larger size of the clinics involved herein (47 doctors as opposed to 8 doctors), distinguishes this case from Alameda Medical Group, Inc, 195 NLRB No. 57. 9 The unit sought by Petitioner includes both clerical and nonclencal employees. while the Employer raised certain other objections to the proposed unit, indicated above, it has stated that the operations of the clinics are such as to require the inclusion of both the clerical and of interest sufficient to warrant a finding that a unit consisting of the employees at that location consti- tutes an appropriate unit. The Petitioner disputes the inclusion of the following classifications in the unit: 10 licensed practical nurses, urology technicians, cardiopulmo- nary function technician, and executive secretary to the administrator. The licensed practical nurses assist physicians in taking care of patients,11 taking temperatures, blood pressure, weight, assisting the patient onto the examining table, handing the physician his instru- ments, and bringing the physician equipment and records. The licensed practical nurses also have general duties such as making sure there is adequate supply of regular items, seeing that things are in good order in the examining room, etc. The Employer contends that licensed practical nurses should be included in the unit and the Petitioner contends that they should be excluded. In our view, the evidence is sufficient to adequately establish that licensed practical nurses have a community of interest with the employees in the unit and therefore are properly includable in the unit.12 Urology technicians are nurses aides who assist the urologist in situations where a male attendant is needed. The Employer would include these employ- ees and the Petitioner would exclude them. Inasmuch as nurses aids are included in the unit, we find that these employees have a community of interest with the employees in the unit and therefore are properly included in the unit. Cardiopulmonary function technicians, like the EKG technician, administer tests to patients making sure that the machines are properly set. The test results are then sent to a doctor for analysis. The Employer would include these employees in the unit and the Petitioner would exclude them. In our view, the cardiopulmonary technician employees have a sufficient community of interest with the employees in the unit to warrant their inclusion in the unit. The executive secretary to the administrator assists the administrator who is responsible for the formula- tion, determination, and effectuation of the Employ- er's policies in the field of labor relations. The executive secretary has access to confidential data in connection with these functions. The Employer would include this employee and the Petitioner nonclencal employees in the same unit. Thus, the parties are in agreement that the bargaining unit properly includes both clerical and nonclerical employees, 10 The parties agree that there are no physicians employed by the Employer and that all the registered nurses employed by the Employer are excluded from the unit as supervisors. i Some of the employees performing the same dunes are classified as graduate practical nurses. For the purposes of the discussion the licensed practical nurses include the graduate practical nurses. 12 Parkvue Medical Center, 183 NLRB No. 65. CLOVER FORK MEDICAL SERVICES, INC. 293 would exclude her. In our view, this employee is a confidential employee and should be excluded from the unit on that basis. Accordingly, upon the entire record, including the agreement of the parties that the bargaining unit include both clerical and nonclerical employees, we find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer at its medical facility in Harlan, Kentucky, including licensed practical nurses, graduate practical nurses, urolo- gy technicians, and cardiopulmonary function technicians, excluding all professional employees, confidential employees, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.]