Cleveland Avenue Medical Center

CLEVELAND AVENUE MEDICAL CENTER Drs. A. O. Allenius & R. F. Leedy, Jr. Inc., d/b/a Cleveland Avenue Medical Center and Service, Hospital, Nursing Home and Public Employees Local Union No. 47, Service Employees Interna- tional Union, AFL-CIO, Petitioner. Case 9-RC-10260 March 11 1974 DECISION ON REVIEW AND ORDER On October 5, 1973, the Acting Regional Director for Region 9 issued a Decision and Direction of Election in the above-entitled proceeding in which he directed an election among a unit of all medical assistants, X-ray technicians, medical secretaries, receptionists, office clerical employees, and licensed practical nurses employed by the Employer at its Columbus, Ohio, facility, excluding all doctors, registered nurses, professional employees, and super- visors as defined in the Act. In his decision the Acting Regional Director rejected the Employer's contention that the Board should not assert jurisdic- tion over its operation. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Acting Regional Director's decision asserting, inter alia, that the Board's decision in Alameda Medical Group, Inc., 195 NLRB 312, is here controlling and therefore the assertion of jurisdiction herein departed from Board precedent. By telegraphic order dated October 30, 1973, the National Labor Relations Board granted the request for review and stayed the election pending decision on review. Thereafter, the Employer filed a supple- mental brief. The Board has considered the entire record in this case with respect to the issues under review and agrees with the Employer that the assertion of jurisdiction is unwarranted herein. The Employer is an Ohio corporation engaged in the private practice of medicine in Columbus, Ohio. Ten osteopaths perform medical services at the Columbus location. In addition, there are approxi- mately 20 employees working at the facility whom Petitioner seeks to represent. Record testimony discloses that approximately 99 percent of the patients treated are residents of Columbus and i Our dissenting colleagues point to the Employer's substantial participa- tion in Federal and State health care programs as a factor demonstrating a "substantial effect on commerce " As their basis for assertion of jurisdiction our colleagues cite Board decisions involving, inter alia, proprietary hospitals, proprietary nursing homes, nonprofit nursing homes, and home- health care agencies . The Board has long applied different standards for the assertion of jurisdiction over various classes and categories of employers. Here, the Employer's medical center is substantially different than a nursing home or hospital, thus the standards for the aforementioned -type facilities are not applicable Additionally, our colleagues rely on Quain and Ramrtad 537 adjacent areas. The Employer does not provide overnight care for patients and when hospitalization is necessary, patients are referred to a hospital. The parties stipulated that the Employer's gross income for calendar year 1972 was $706,468. Of that total, $401,054 was received from the Ohio Depart- ment of Public Welfare (53 percent of which was from United States Department of Health, Educa- tion, and Welfare), $15,871 from the Federal Medi- care program, $90,570 from the Ohio Industrial Commission, $2,426 from Franklin County, and the remainder from private patients and various private insurance programs. The Acting Regional Director further found: During the same period, the Employer pur- chased drugs in the amount of $9,076 from various sources. Insurance premiums payable to Buckeye Union Insurance Company, a wholly- owned division of Continental Insurance Co. of New York, Connecticut General Insurance Com- pany and Insurance Company of North America, amounted to $8,762. Moreover, the Employer leased equipment from Huntington Leasing Divi- sion of U. S. Leasing Corp., an Ohio corporation, for $10,750, purchased U. S. postage in the amount of $1,320, medical supplies from local concerns in the amount of $7,200 and had utility bills totaling some $4,000. The Employer also purchased x-ray film from a Cincinnati-based subsidiary of Litton Industries amounting to $6,539 and leased other sundry equipment from 3-M Products and Litton Industries for $2,073. While it appears the Employer is engaged in the performance of services which are not wholly unrelated to commerce, we find, as in Alameda Medical Group, Inc., supra, that the Employer's medical practice is essentially local in character and that the impact it has on commerce is not substantial enough to warrant our assertion of jurisdiction herein.' Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition filed in Case 9-RC-10260 by Service, Hospital, Nursing Home and Public Employees Local Union No. 47, Service Clinic, 173 NLRB 1185, a case distinguishable from the subject case. In Quain and Ramsta4 supra, the employer operated a clinic with gross revenues almost five times that of the subject medical center and the employee complement was four times greater than that here . Moreover, in Quain and Ramrtad a suostantial part of the employer's revenue came from out-of-state patients , not so in the subject case where approximately 99 percent of tlfe patients are from the Columbus. Ohio, area. Thus, the Board in Quain and Ramrtad found a "substantial effect on commerce." Here the impact is insubstantial and the Employer's practice essentially local in character 209 NLRB No. 60 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees International Union , AFL-CIO, be, and it hereby is, dismissed. CHAIRMAN MILLER, concurring separately: I concur in the result, but would base my conclusion on broader grounds than my colleagues. I am not persuaded that the practice of medicine, whether engaged in by one or by several physicians, is a commercial enterprise over which we ought to assert jurisdiction. Rather, it seems to me that the practice of medicine, as such, is so local in character that we ought to exercise our discretion and not assert jurisdiction unless and until the Congress indicates a clear intent to have us do so. Nursing homes and hospitals have, in my view, become industries whose operations have a substan- tial impact on commerce. But a group of physicians administering to the needs of primarily local patients and purchasing, as here, only minimal quantities of goods from out of State, is "essentially local in character" if any business or profession any longer is. Nor am I presuaded that, as the dissent here argues, the advent of Medicaid and other Federal assistance programs has transformed the private practice of medicine into a commercial enterprise having a substantial impact on interstate commerce. Federal welfare programs have in recent decades become very broad in scope, so that the underprivi- leged are not denied access to at least minimally required goods and services necessary to survival and to the maintenance of health. But this does not mean to me that every purveyor of goods and services who delivers some of those goods or services to persons who cannot themselves pay the full cost, and thus may receive part of his payments through federally funded assistance programs, automatically becomes engaged in an industry which substantially affects interstate commerce. Accordingly, I would not assert jurisdiction here or over any physician or group of physicians engaging solely in the local practice of medicine. MEMBERS FANNING and PENELLO, dissenting: The majority finds that the impact of Employer's medical practice is not sufficient to warrant the Board's assertion of jurisdiction. We disagree. Employer received during the calendar year 1972 gross income of $706,468. Of that, $401,054, was received from the Ohio Department of Public Welfare under the Medicaid program, $15,871 from the Federal Medicare program, $90,570 from the Ohio Industrial Commission, and $2,426 from Franklin County. Of the $401,054, received from the Medicaid program, 53 percent (or approximately $212,558) were funds provided by the Federal Government. Thus, Employer participates substantially in Feder- al and state health-care programs.2 The Board has continuously pointed to participation in such pro- grams by various health care institutions as a factor demonstrating that institutions have a substantial effect on commerce. Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266, 267 (proprietary hospitals);- University Nursing Home, Inc., 168 NLRB 263, 264; Rosewood, Inc., 185 NLRB 193, 194 (proprietary nursing homes); Drexel Home, Inc., 182 NLRB 1045, 1046; Bethany Home for the Aged, 185 NLRB 191; The Swanholm, 186 NLRB 45 (nonprofit nursing homes), Quain and Ramstad, 173 NLRB 1185 (physicians clinic); Visiting Nurses Association of Sacramento, 187 NLRB 731; Visiting Nurse Association, Inc., 188 NLRB 155 (home-health care agencies).3 Indeed, in some of these cases the participation in these publicly funded programs appears to have been the critical factor, or at least a critical factor, in the Board's assertion of jurisdic- tion.4 In still other cases the Board has rejected claims of special status with the notation that the institution has the same effect on publicly funded medical programs as similar institutions.5 Despite the frequency with which the Board has held that participation in publicly supported health programs demonstrates that an institution has a substantial effect on commerce, the majority holds that Employer's effect is not substantial enough to warrant our assertion of jurisdiction. They reach this startling conclusion without any explanation; Query, How does Employer's income from these public sources demonstrate a less substantial impact than that of other employers? It certainly cannot be the amount of money involved. The sums are quite substantial and actually more than received by other employers over whom the Board has asserted jurisdiction.6 It cannot be that a physicians clinic is not a critical cog in our national health care program. It quite clearly is. It cannot be that the patients are virtually all from the local area. That has also been true in a number of the cases involving health care institutions where the Board has asserted jurisdiction. Bethany Home for the Aged, supra; Visiting Nurses Association of Sacramento, supra; Visiting Nurses Association, supra; Drexel Home, supra. In the absence of any other apparent explana- 2 It is this factor which distinguishes this case from Alameda, supra 4 Butte Medical Properties, supra; Drexel Home Inc, supra, Visiting Although we have doubts as to the validity of the holding in that case we Nurses Association, supra. need not resolve those doubts in the context of this case S Bethany Home for the Aged supra; Swanholm, supra; Rosewood, supra. 3 See also the National Lutheran Home for the Aged 203 NLRB No 71; 6 See, e.g, Visiting Nurses Association of Sacramento, supra. Good Samaritan Hospital, 185 NLRB 198. CLEVELAND AVENUE MEDICAL CENTER 539 tion we can only conclude that our colleagues have In our view, the record does not establish any decided to treat Employer different from other reason why Employer should be treated differently employers in the health care area on the basis of their than other institutions in the health care field. Since visceral reaction that somehow a physicians clinic is it is clear that Employer has a substantial effect on different.7 commerce, we would assert jurisdiction. r Unlike Chairman Miller, we are unable to perceive how this Employer area with the same basic characteristics over which the Board has asserted with its substantial participation in publicly supported health care programs jurisdiction. See, e g , Visiting Nurses Association of Sacramento, supra, but with primarily local patients and primarily local purchasing has a less Bethany Home for the Aged, supra substantial impact on commerce than other employers in the health care