Crotched Mountain Foundation

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crotched Mountain Foundation and Crotched Moun- tain Education Association a/w New Hampshire Education Association a/w National Education As- sociation, Petitioner. Case 1-RC-13000 July 11, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING JENKINS 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 Robert A. Lieber- man. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 1 transferred this case to the Na- tional Labor Relations Board for decision. Thereaf- ter, the Employer and the Petitioner filed briefs. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that no prejudicial error was committed. They are hereby affirmed. Upon the entire record in this case, the Board finds: The facts, which are essentially undisputed, show that the Employer is a nonprofit charitable institution which operates a residential education and rehabilita- tion center for multihandicapped children and young adults at Greenfield, New Hampshire. The Employer's facilities, situated on 100 acres, consist of 14 buildings which house educational, vocational re- habilitation, and medical care facilities, as well as administrative offices and a dormitory. At the time of the hearing, there were approximately 185 students in residence, slightly more than half from out-of-state. In addition, the Employer admits 10 to 20 patients on an exclusively medical basis and has the capacity to serve 25 vocational education clients referred by the New Hampshire Department of Vocational Rehabilitation for vocational evaluation, counseling and placement. The Employer had gross revenues in excess of $2 million in fiscal year 1973. More than half its revenue is derived from tuition. Other revenue is in the form of contributions, gifts, and income from the Employer's endowment. Approximately 90 percent of the Employer's expenses is to pay salaries to its staff of approximately 250 employees. The Employer esti- mated that it purchased goods in excess of $250,000 in February 1973, with approximately $50,000 from out-of-state sources. In our recent decision in Ming Quong Children's Center, 210 NLRB No. 125, we reviewed the Board precedent and legislative history of the Act relating to the exercise of jurisdiction over various types of non- profit corporations. We concluded from that review that in The Children's Village, Inc., 186 NLRB 953, and Jewish Orphan's Home of Southern California a/k/a Vista Del Mar Child Care Service, 191 NLRB 32, the Board erroneously departed from our Con- gressionally approved general practice of declining jurisdiction over nonprofit charitable organizations without having had the special kind of justification relied upon in Cornell University, 183 NLRB 329. For the reasons expressed in Ming Quong, we con- clude that it would not effectuate the policies of the Act for the Board to assert jurisdiction over the type of nonprofit institution operated by the Employer whose activities are noncommercial in nature and are intimately connected with the charitable purposes of the institution.' Accordingly, we shall dismiss the peti- tion. ORDER It is hereby ordered that the petition filed herein be, and hereby is, dismissed. MEMBER JENKINS, concurring: I concur in the dismissal of the petition. I would, however, unlike my colleagues, predicate the dismiss- al of the petition on the finding that the Employer operates an institution which falls within the classifi- cation of "nonprofit" hospital over which the Board is statutorily prohibited from asserting jurisdiction. The record shows that the Employer is licensed as a special hospital by the New Hampshire Department of Health and Welfare, Division of Public Health Services, and it holds membership in the American Hospital Association. The Employer maintains a medical staff directed by a full-time physician-pedia- trician and approval by the medical director following a study of the applicants' medical report is a prerequi- site for admission to the Center. Some 10 to 20 per- sons are admitted on an exclusive medical basis and, at the time of the hearing, 39 of the students in resi- dence lived in the medical ward under full-time nurs- ing care. Furthermore, the record amply demonstrates that the Employer's medical services and educational activities are not only inseparable but completely integrated. In these circumstances then, I can only conclude that the Employer falls within the category of an ex- empt nonprofit hospital over which we are statutorily barred from asserting jurisdiction. MEMBER FANNING, dissenting: ' Inasmuch as we find the instant case to be governed by our decision in Ming Quong, we find it unnecessary to determine whether the Employer operates a nonprofit hospital, as found by our colleagues in his concurring opinion. 212 NLRB No. 58 CROTCHED MOUNTAIN FOUNDATION 421 Chairman Miller and Member Penello refuse to assert jurisdiction here solely on the basis of their majority decision in Ming Quong Children's Center, 210 NLRB No. 125, viz, that the employer is a non- profit charitable organization. For essentially the same reasons stated in my dissenting opinion in that case, I dissent from that basis for refusing to assert jurisdiction here. Indeed, I note that there are even stronger reasons for the assertion of jurisdiction over the Employer in the instant case than there were in Ming Quong. In general purpose and function, both Ming Quong and the instant Employer are child-car- ing institutions; the former treats emotionally dis- turbed children, and the latter treats multiple physically handicapped children. Both are nonprofit and both receive most of their income on a fee basis. Moreover, whereas the annual gross revenues of Ming Quong were more than $500,000, most of which was received intrastate, the annual gross revenue of the instant Employer is $2,235,000, with the primary source being tuition paid by the families of students in the amount of $1,246,000, approximately one-half, or over $500,000, of which was paid by out-of-state students. And in addition to over $500,000 in care fees from directly out of State, the Employer also purchas- es $50,000 out of $250,000 worth of goods directly from out of State. Thus, the Employer here has annual gross revenue of $2,235,000, which is more than 4 times the amount the Board deems sufficient for the assertion of jurisdiction over "retail" enterprises;' and annually receives directly from out-of-state care fees and goods valued at more than $550,000, which is more than 10 times the amount the Board considers 2 Carolina Supplies and Cement Co., 122 NLRB 88 (1958) sufficient for the assertion of jurisdiction on the basis of "direct inflow."3 With such facts present, it is diffi- cult for me to comprehend how my colleagues can escape the conclusion that the Employer's operations have a very substantial impact on interstate com- merce, so as to require the Board's assertion of juris- diction over the Employer.4 I also disagree with Member Jenkins' concurring opinion, that we should not assert jurisdiction over this Employer because it is a nonprofit "hospital" over which the Board is statutorily prohibited from asserting jurisdiction, for the following reasons: (1) Of an enrollment of 180-185 students, only 10 to 20 chil- dren are exclusively medical admissions; (2) there is only 1 full-time physician who is the director of the medical division-the rest of the physicians are only part-time who are paid on a per diem basis; (3) the Employer does not have an emergency room, operat- ing room, laboratory, x-ray facilities, or an ambu- lance, which are the normal attributes of a "hospital"; (4) none of the employees sought by Petitioner is as- signed to the medical division, but rather to the educa- tion division; (5) the director and staff of the education division have been trained in special educa- tion for handicapped children; and (6) the Employer's own current brochure describes it as a comprehensive education and rehabilitation center. In conclusion, I also would like to observe that in this time of increasing health-care interest and activi- ty, when the Board could serve a stabilizing influence in labor-management relations in the industry, it seems to me that the Board, by its reluctance to exer- cise jurisdiction, is hardly contributing to its statutory purpose. 3 Siemons Mailing Service, 122 NLRB 81 (1958). 4 As I pointed out in my dissent in Ming Quong, the Board has long held that the nonprofit character of this type of employer is immaterial.