Choice, Inc.

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Choice, Inc. and Illinois Reproductive Health Center, Inc. and United Service Employees Union, Local 329, AFL-CIO, Service Employees International Union, Petitioner. Case 13-RC-13247 July 24, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS KENNEDY 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 John R. Albrecht. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the Board for decision. Thereafter, the Petitioner filed a brief and the Employers filed a joint brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this case, the Board finds: The Petitioner seeks to represent certain employees of Choice, Inc. and Illinois Reproductive Health Cen- ter, Inc. In its brief, the Petitioner contends, inter aha, that these corporations constitute a single employer and that the impact of their operations on interstate commerce is sufficiently substantial to warrant the assertion of the Board's jurisdiction. In their joint brief, the Employers contend, inter alia, that they are separate and distinct entities and that the Board, as a matter of policy, should decline to assert jurisdiction. For the reasons set forth below, we find that the asser- tion of the Board's jurisdiction is not warranted here- in.' Choice, Inc., an Illinois nonprofit corporation lo- cated in Chicago, Illinois, is engaged primarily in pro- viding counseling and referral services for men and women with respect to alternative methods of birth control. Illinois Reproductive Health Center, Inc., an Illinois for-profit corporation, operates an outpatient clinic at which an unspecified number of physicians perform abortion procedures for women in the first 1 In view of our decision herein, we find it unnecessary to reach the issues raised by the parties with respect to whether Choice, Inc and Illinois Repro- ductive Health Center, Inc , constitute a single employer and whether the unit sought is appropriate trimester of pregnancy. Although 40 percent of the ownership interest of Illinois Reproductive Health Center, Inc., is held by a single physician, a majority of the shares of this corporation are held by nonphysi- cians. The two corporations are located in the same building and share a suite of rooms. Additionally, the record discloses a high degree of functional integra- tion between the two corporations, as well as some evidence of interchange of duties among their em- ployees. With respect to Choice, Inc., the parties have stipu- lated that for the period from August 1, 1972, to July 31, 1973, this Employer had gross receipts of $49,097.73. Of this amount approximately 75 percent was derived from referral fees paid by Illinois Repro- ductive Health Center, Inc., and the balance was com- prised of referral fees paid by various other clinics and contributions from individuals. It is undisputed that this Employer has received no funds from the Federal Government, the State of Illinois, or the city of Chica- go. The record further discloses that this Employer purchased supplies valued at $125 during the above period and that approximately 3-5 percent of the clients counseled by it have been referred to clinics located outside the State of Illinois. With respect to Illinois Reproductive Health Cen- ter, Inc., the parties have stipulated that the unaudited financial report of this Employer for the calendar quarter ending October 31, 1973, indicated a net fee income of $155,996, and that for the period from No- vember 1 to November 30, 1973, this Employer had gross receipts from its Chicago clinic of $32,560.2 The parties have further stipulated that, if projected for a calendar year, the amount of goods and supplies pur- chased by Illinois Reproductive Health Center, Inc., either directly of indirectly in interstate commerce would be in excess of the Board's de minimis standard but less than $50,000. Finally, the parties have stipu- lated that of the approximately 1,600 individuals uti- lizing the services of these corporations during the calendar quarter ending October 31, 1973, some 15 percent indicated residences outside the State of Illi- nois. There are no existingjurisdictional standards appli- cable to abortion centers. These are not general medi- cal clinics in the accepted sense of the term, nor are they hospitals, nursing homes, or related facilities. In fact, abortion centers have become legal only since the 1973 Supreme Court decision in Roe v. Wade, 410 U.S. 113. We have been presented with no evidence which would establish the aggregate impact upon in- 2 During the period from November I to November 30, 1973, Illinois Reproductive Health Center, Inc. also maintained an abortion clinic in Peoria, Illinois, from which it derived gross revenues of $925 However, as of the time of the hearing, that facility had been closed and it was uncertain whether operations would be resumed there 212 NLRB No. 86 CHOICE, INC. 551 terstate commerce of such centers. In view of the re- cency of the Supreme Court decision, the consider- able public opposition still remaining to the practice of abortion, and other institutional means for achiev- ing abortion, it seems probable that abortion centers such as those operated by the Employers are essential- ly local in character, and do not have a substantial impact upon commerce.' Accordingly, we shall, at this time, exercise our discretion and decline to assert jurisdiction. We therefore dismiss the petition. ORDER It is hereby ordered that the petition filed in Case 13-RC-13247, by United Service Employees Union, Local 329, AFL-CIO, Service Employees Interna- tional Union, be, and it hereby is, dismissed. MEMBER PENELLO, dissenting: My colleagues have declined to assert jurisdiction in this case on the grounds that there are no existing jurisdictional standards applicable to abortion clinics and that "it seems probable" that such enterprises are essentially local in character. Contrary to the majori- ty, I find the assertion of the Board's jurisdiction fully warranted herein. I cannot agree that these Employers, engaged in the operation of an abortion clinic, do not fall within a class of employers over which the Board has previous- ly asserted jurisdiction. The majority concludes that an abortion clinic is not a general medical clinic in the accepted sense of that term.4 I perceive no meaningful distinction between a medical clinic engaged in the general practice of medicine and one, as here, which provides specialized medical services.' Apparently, the majority would now have this Board examine the 3 The dissent argues that this conclusion is "based on patent conjecture," but offers no support for the contrary conclusion-i.e., that such abortion centers are not essentially local in character or that, as a class, they have any substantial impact on commerce . Hitherto, we have not asserted jurisdiction over a new class of employers unless and until it has been affirmatively shown that the class has such an impact. Insofar as the dissent relies upon data as to the facility involved in this case , we note that the goods and supplies purchased either directly or indirectly in interstate commerce is less than $50,000, whereas in the Ochsner, Permanente, and Quain and Ramstad cases cited in the dissent, out-of-state purchases were in excess of that figure The substantial impact on commerce which our dissenting colleague purports to see, therefore, seems to us, at this time in history , to be more susceptible of characterization as "patent conjecture " than our failure to find such an impact. The Board has previously asserted jurisdiction over medical clinics See, e.g., Ochsner Clinic, 192 NLRB 1059 (1971); The Permanente Medical Group, 187 NLRB 1033 (1971); Quain and Ramstad Clinic, 173 NLRB 1185 (1968) 5 This view is consistent with Board precedent. Thus, in Centerville Clinics, Incorporated, 181 NLRB 135, (1970), the Board, Inter aba, affirmed the Trial Examiner's assertion of jurisdiction over a general medical clinic which particularly emphasized the treatment of ailments typical in the coal indus- try. In so doing, the Board made no distinctions between the clinic therein and other medical clinics based on the specialized nature of the medical services rendered nature of the particular medical services rendered in determining whether an employer which operates a medical clinic is subject to our jurisdiction. Such con- siderations cannot result in any rational, or indeed even consistent, application of law. And for the Board to engage in such inquiries is to entangle itself in distinctions which are not only too fine, but which bear little, if any, relation to the consideration of the impact of an employer's activities upon commerce, the critical factor in resolving basic jurisdictional, is- sues under the Act. Inasmuch' as the Board has in the past exercised its jurisdiction over medical clinics, the only basic question remaining in this case is whether the impact of the Employers' operation is substantial enough to warrant the assertion of jurisdiction. As noted above, the majority concludes that "it seems probable" that abortion clinics such as those operated by the Employers are essentially local in character and exert an insubstantial impact on com- merce. Their reasoning in reaching this conclusion, however, is based on patent conjecture, and largely ignores the record evidence in this ^ case. Thus my colleagues state that considerable public opposition to the practice of abortion remains and that other insti- tutional means for achieving abortion exist. But it is a total non sequitur to leap from the fact of the opposi- tion of a particular segment of the public to certain types of enterprises to the conclusion that such enter- prises are essentially local in character. Certainly, large segments of the public are unalterably opposed to the consumption of intoxicating beverages, the op- eration of gambling houses, and the smoking of ciga- rettes. Such opposition has not, however, dissuaded the Board in the past from asserting jurisdiction over breweries,6 gambling casinos,7 or manufacturers of to- bacco products.' Nor could such opposition require a contrary holding by the Board as to any of these industries. Furthermore, I cannot conclude, as does the majority, that because alternative institutions for the performance of abortion procedures exist, abor- tion clinics are probably localized and do not have a substantial impact on commerce. This, too, is a non sequitur. The mere existence of rival enterprises pro- viding identical services does not, in itself, make one competing operation essentially local in character.9 6 See, e.g., Anheuser-Busch, Inc., 170 NLRB 46 (1968); Jos. Schhtz Brewing Company, 139 NLRB 1466 (1962), Rheingold Breweries, Inc, 162 NLRB 384 (1966) 7 See, e.g., Sparks Nugget, Inc, 161 NLRB 1195 (1966); Exber, Inc, d/b/a El Cortez Hotel 160 NLRB 1442 (1966), El Dorado Inc., d/b/a El Dorado Club, et al, 151 NLRB 579 (1965). B See, e g, International Association of Machinists, Lodge 681, District 27, AFL-CIO (P Lorillard Company, Inc), 135 NLRB 1382 (1962); American Tobacco Company, Incorporated, 108 NLRB 1211 (1954). 9 Assuming that my colleagues are referring to hospitals as the alternative institutions, it should be noted that Petitioner has submitted a statistical summary, attached to its brief, which shows that abortion clinics within the Continued 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, the record in this case demonstrates that the activities of the Employers in fact have a substan- tial impact upon commerce. The parties have stipulat- ed that, if projected for a calendar year, the amount of goods and supplies purchased either directly or indirectly in interstate commerce by Illinois Repro- ductive Health Center, Inc., would be in excess of the Board's de minimis standard. The combined annual revenues of the Employers, on a projected basis, amounts to $673,08 1.73-a sum in excess of our es- tablished standards for proprietary hospitals.10 nurs- ing homes and related health care facilities," and of the gross annual revenues of at least two medical clinics over which we have previously asserted juris- diction.12 The parties have further stipulated that of the 1,600 individuals utilizing the services of the Em- ployers during the calendar quarter ending October 31, 1973, approximately 3-5 percent were referred to clinics outside the State of Illinois and some 15 per- cent indicated residences outside that State-figures city of Chicago during the period from January 22 through November 30, 1973, accounted for several times as many abortion operations than did all of the hospitals in that city The Employers have not disputed the accuracy of these figures It, therefore , seems to me that, despite the availability of alternative institutions , abortion clinics , at least in one major city, serve the maonty of patients seeking abortions The Board's current jurisdictional standard for proprietary hospitals is gross annual revenues of at least $250,000 Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266 (1967) " The Board's current jurisdictional standard for proprietary nursing homes and related health care facilities is gross annual revenues of at least $100,000 University Nursing Home, Inc, 168 NLRB 263 (1967) 12 Thus, the Board asserted jurisdiction in Ochsner Clinic, supra, and The Permaneme Medical Group, supra, in which it was stipulated that the employ- ers had gross annual revenues exceeding $250,000 and $500,000, respectively which, to my satisfaction, demonstrate that the activ- ities of the Employers are not essentially local in character.13 It is thus clear that the Employers fall within the class of medical clinics over which the Board has pre- viously asserted jurisdiction, and the record evidence establishes that their activities have an impact on commerce substantial enough to warrant the assertion of jurisdiction." Accordingly, I would assert jurisdic- tion and direct an election herein. U The Board has previously asserted jurisdiction over enterprises engaged in the health care field where virtually all patients were from the local area See, a g , Visiting Nurser Association of Sacramento, 187 NLRB 731 (1971), Bethany Home for the Aged, 185 NLRB 191 (1970), Drexel Home, Inc, 182 NIRB 1045 (1970) 14 My colleagues . in concluding that the impact of the Employers' opera- tions upon commerce is insubstantial, emphasize that the value of goods and supplies purchased by them in interstate commerce is less than $50,000 annually Admittedly, the values of the goods and supplies annually pur- chased in interstate commerce by the employers in Ochsner, Permanente, and Quain and Ramstad exceeded that amount However, in Ochsner the employ- er had a gross income in excess of $250,000 and in Permanente and Quain and Ramstad the employers had gross incomes of $500,000 or more , and there is no indication in those cases , or in any other cases involving medical facilities of which I am aware, that $50,000 inflow is required before the Board will assert jurisdiction over such an employer' s operation Thus, a careful review of our past decisions involving medical clinics demonstrates that the Board has not applied any particular dollar volume standard in defining the term "substantial impact on commerce," but rather has made its determination on the basis of all the facts presented in each case , including both gross income and inflow-outflow volume , and has used the inflow- outflow figure only to establish statutory jurisdiction And, it is clear that the inflow-outflow amount sufficient to establish statutory jurisdiction may be less than $50,000 For, with respect to certain other classes of employees, the Board's discretionary standards for the assertion of jurisdiction do not re- quire that the employer meet a $50,000 volume of inflow-outflow See, e g, Floridan Hotel of Tampa, Inc, 124 NLRB 261 (1959) (hotel-dollar volume of inflow in excess of $1,000 ), International Longshoremen & Warehousemen's Union, and Local No 13, international Longshoremen & Warehousemen's Union (Catalina Island Sightseeing Lines), 124 NLRB 813 (1959) (public utility and/or transit system-dollar volume of inflow of $23,000)