Bio-Medical Applications of San Diego, Inc.

BIO-MEDICAL APPLICATIONS OF SAN DIEGO, INC. Blo-Medical Applications of San Diego, Inc. and Service Employees International Union Local 102, AFL-CIO, Petitioner. Case 21-RC-13979 February 19, 1975 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Steven J. Sorensen. 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, and by direction of the Regional Director for Region 21, this case was transferred to the National Labor Relations Board for decision. Both the Employer and the Petitioner filed briefs. 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. They are hereby affirmed. Upon the entire record in this case, including the briefs filed herein, the Board finds: 1. The Employer, Bio-Medical Applications of San Diego, Inc., doing business in San Diego, California, is a corporation organized under the laws of the State of Delaware and is engaged in operating a for-profit community hemodialysis unit providing life maintenance hemodialysis treatments to outpa- tients referred by urologists. The Employer contends that the Board should not assert jurisdiction over its operations on the basis that its medical services are essentially local in character. In legal support of its contention, the Employer refers to the recent Board decisions in Alameda Medical Group, Inc., 195 NLRB 312 (1972), and Drs. A. O. Allenius & R. F. Leedy, Jr. Inc., d/b/a Cleveland Avenue Medical Center, 209 NLRB 537 (1974), wherein the Board declined to assert jurisdiction over similarly specialized clinics dealing primarily with local patients. For the reasons stated below, we find that these cases are no longer controlling.' The petition in the instant case was filed on October 10, 1974. Effective August 25, 1974, the i Member Fanning, who, with Member Penello, dissented in Cleveland Avenue Medical Center, supra, would assert jurisdiction here in any event. 2 Public Law 93-360, July 26, 1974. s See Charles Circle Clinic, Inc., 215 NLRB No. 84 (1974). 216 NLRB No. 115 631 National Labor Relations Act was amended by adding a new Section 2(14) which enlarged the Board's jurisdiction in the health care field to include 2 any hospital, convalescent hospital, health main- tenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person. [Emphasis supplied.] In our opinion an examination of this legislation and its legislative history shows that the purpose of the 1974 health care amendment was to extend the jurisdiction of the Board to all health care institu- tions, as defined in Section 2(14) of the Act, which have a substantial impact on commerce although they may be local in character.3 The record shows that the Employer in the last complete fiscal year, calendar year 1973, received annual gross revenue of approximately $587,748. Of this amount $215,000 of the total gross revenue was in the form of Med-cal payments .4 Another $233,000 of the annual gross revenue received was in the form of Medicare reimbursements. The remaining annual gross revenue was derived directly from the patients themselves, from hospitals in which the Employer provided hemodialysis treatments, or from private insurance companies. Of the 45 patients treated, 30 resided in either San Diego County or nearby Imperial County, and were treated on a regular basis, and 15 patients were visitors or transients normally treated elsewhere. The majority of the 15 patients so treated resided outside the State of California. During 1973, the Employer purchased supplies, including drugs and medication, from companies located outside the State of California amounting to approximately $100,000. Additionally, during the 1973 accounting period, the Employer purchased approximately $18,000 in capital equipment used for patient care from distributors located outside the State of California, and had service contracts of approximately $440 with equipment companies whose headquarters are outside the State. As the Employer's annual gross income exceeds any discretionary standard we might apply, and as it has a substantial inflow of materials from outside the State of California, we find that the impact of the Employer's operations on commerce is sufficient to warrant assertion of jurisdiction herein and that it will effectuate the policies of the Act to do so.5 2. The labor organization involved claims to represent certain employees of the Employer. 4 This California medical program is funded by the Department of Health Care Services of the State of California under subchapter 19 of the Social Secunty Act, which is partly funded by Federal moneys. S Thus, the Employer's gross income substantially exceeds those dollar (Continued) 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated that the following is the appropriate unit: All dialysis technicians, dialysis technologists, dialysis aides, and dialysis technician trainees volume jurisdictional standards applied to hospitals (Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266(1967)); visiting nurses associations (Visiting Nurse Association, Inc., 188 NLRB 155 (1971)); and retail enterprises (Carolina Supplies and Cement Co., 122 NLRB 88 employed by the Employer at its clinic located at 3960 Third Avenue, San Diego, California, excluding all other employees, including profes- sional employees, office clerical employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] (1958)). We do not, however, decide at this time specifically what dollar volume standard will be applicable to facilities such as this.