San Diego Blood Bank

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Diego Blood Bank and Building Material and Dump Truck Drivers Local No. 36 of the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 21-RC-13962 July 14, 1975 DECISION AND DIRECTION OF ELECTION BY 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 Orville S. Johnson. Following the hearing and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations, 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 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: 1. The San Diego Blood Bank is an independent nonprofit corporation which provides blood-pro- cessing services to meet the requirements for the treatment of patients of 29 hospitals in San Diego County, California. Approximately 80 percent of these services are provided to five nonprofit hospi- tals. It recruits blood donors, draws, processes, and prepares blood in a variety of blood components, stores the blood in its own facility, and distributes it to hospitals. It delivers blood to the hospitals on a 24-hour basis and directly charges the patients a $13 processing fee and a $25 replacement fee for each unit of blood. The latter fee is canceled if the patient provides a unit of blood to replace the unit used. The Employer also exchanges units of processed blood with the U.S. Navy Hospital in San Diego and par- ticipates in the National Clearing House operated by the American Association of Blood Banks which sends and receives blood or blood credits throughout the country. During the 12-month period preceding the hearing, the Employer had gross revenues in excess of $1 mil- lion and purchased and received in California goods valued in excess of $50,000 from firms which pur- chased them directly from outside the State of Cali- fornia. Through its participation in the National Clearing House operated by the American Associa- tion of Blood Banks the Employer had gross receipts varying between approximately $1,000 and $5,000 per month. The Employer contends that the Board should not assert jurisdiction because (1) its operations are local in nature and have no substantial impact on com- merce, (2) the Board's policy is not to assert jurisdic- tion over community blood banks, and (3) the recent health care amendments (P.L. 93-360), which re- moved the Act's exemption for nonprofit health care facilities, make no mention of blood banks. The Em- ployer further contends that if the Board does assert jurisdiction, it should rule that the Employer is a health care institution within the meaning of Section 2(14) of the Act. The Employer's operations and impact on com- merce are sufficient to warrant the Board's assertion of jurisdiction. Its annual gross revenue of more than $1 million exceeds dollar-volume standards set by the Board for the assertion of jurisdiction. The pur- chase of goods valued in excess of $50,000 which originate outside the State of California satisfies im- pact on commerce requirements. The appropriate- ness of the assertion of jurisdiction with respect to community, nonprofit blood banks was decided in American National Red Cross, District of Columbia Chapter, 211 NLRB 587 (1974). The determination to assert jurisdiction in that case is controlling here. Even if the Employer here were found to resemble the blood bank in Inter-County Blood Banks, Inc., 165 NLRB 252 (1967), more than the District of Colum- bia Chapter of American National Red Cross, this would not affect the Board's assertion of jurisdiction. In that case jurisdiction was refused because the Board found the employer's operations to be inti- mately related with the operations of the nonprofit hospitals to which it supplied blood. Inasmuch as the nonprofit hospitals were then exempt by statute, it was felt that jurisdiction should not be asserted over their intimately related blood banks. Since, however, the exemption for nonprofit hospitals was removed by the 1974 health care amendements (P.L. 93-360), Inter-County Blood Banks, supra, no longer provides authority for not asserting jurisdiction over nonprofit blood banks. In view therefore of its substantial in- volvement in operations affecting commerce, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this pro- ceeding. We also find that the Employer is not a health care institution within the meaning of the 1974 amend- ments. The legislative history makes it clear that the 219 NLRB No. 13 SAN DIEGO BLOOD BANK 117 special provisions of the Act applicable to health care institutions relate to "patient care situations " and not "purely administrative health connected facilities." See 120 Cong. Rec. H4594 (daily ed., May 30, 1974); 120 Cong. Rec. S73 10 (daily ed., May 7, 1974). Since supplying blood to hospitals obviously does not in- volve patient care, blood banks are not health care institutions within the meaning of the amendments. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Petitioner seeks representation of employees in the Employer's distribution department. This in- cludes desk operators, drivers, combination desk op- erator-drivers, regular part-time drivers, maintenance men, and a hospital file clerk. Employer would ex- clude from the unit the desk operators and combina- tion desk operator-drivers as supervisors, and the hospital file clerk as an office clerical employee. Peti- tioner would exclude from the unit one of the part- time drivers because he is the son of the assistant administrator of the Employer. There are three desk operators and two or three combination desk operator-drivers. These are claimed to be supervisors because they assign work and allegedly exercise other supervisory functions with respect to two full-time drivers and two or three part-time drivers. The desk operators work on three different shifts, 5 days a week, directing the drivers with respect to the delivery to and pickup of blood from the various hospitals in San Diego serviced by the blood bank. The combination desk operator-driv- ers serve as drivers in the evening and perform the functions of desk operators on weekends. Respondent's claim that the desk operators are su- pervisors because they oversee the work of the driv- ers would result in five supervisors, in addition to the distribution supervisor in charge of the distribution department, for approximately five employees. It is clear, as shall be shown, that the so-called superviso- ry functions of all employees while serving as desk operators are extremely limited. As to some, howev- er, they are nonexistent . Since no drivers are em- ployed on the night shift and deliveries are effected by the use of taxicabs, the desk operators and combi- nation desk operator-drivers who are employed on the night shift obviously perform no supervisory functions whatever with respect to drivers. It is also apparent from the limited scope of their supervisory responsibility, as well as the testimony about the supervision actually exercised, that the claimed supervisory functions performed by the re- maining desk operators and combination desk opera- tor-drivers do not render them "supervisors" within the meaning of the Act. The assistant administrator of the blood bank testified that their responsibility for the assignment of duties to drivers was exercised "routinely." He described desk operators as being in charge for an 8-hour period during which "They is- sue the orders to the drivers as to where they are to go, what they are delivering, what they are to deliver, what they are to pick up and return to the blood bank" and that "They are responsible for the proper conduct of duty on the part of the driver." He further testified that "They are responsible for the manage- ment of the inventory of blood that is within the blood bank itself and also that which is within the hands of the hospital." But there was no evidence that this amounted to anything more than their checking the blood inventory in three refrigerators and comparing the tally with the main inventory re- cords. In connection with these responsibilities, the assis- tant administrator testified in general and conclu- sionary terms that the desk operators exercised the entire spectrum of supervisory functions. However, when pressed for specific examples to illustrate the nature of the supervision, his testimony fell far short of demonstrating the performance of a supervisory role involving the use of independent judgment or activities of more than a routine nature. He testified that the desk operators occasionally adjust the work- ing hours of drivers by an hour or so to allow for a medical appointment or the like, but that their basic schedule is established by the distribution supervisor, and that they call in a replacement when a driver fails to report. The only other illustrations of the exercise of su- pervisory functions recalled by the assistant adminis- trator were administering verbal reprimands to driv- ers for failing to follow the scheduled order of deliveries and pickups, reporting to the distribution supervisor a driver's failure to clean up the refrigerat- ed box for blood within his vehicle, recommending the termination of a driver who was later terminated by the distribution supervisor for habitually report- ing late and not responding promptly to directions, and the recommendation of merit increases. Howev- er, there is no evidence that such supervisory func- tions are performed other than on an occasional ba- sis. It is clear that the testimony of the assistant ad- ministrator does not provide evidence that the desk operators' "supervision" involves the use of indepen- dent judgment or that their functions is other than of a merely routine nature. The immediate supervisor of the desk operators is the distribution supervisor who 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performs the basic supervisory role for the distribu- tion department and exercises all supervisory func- tions involving the use of independent judgment. The distribution supervisor is in turn responsible to the assistant administrator officer who reports to the medical director in his capacity as chief administra- tive officer. In this management hierarchy the desk operators obviously perform nothing more than "su- pervisory" functions of a routine nature not requiring the exercise of independent judgment . We conclude therefore that they are not supervisors within the meaning of the Act and are appropriately a part of the unit sought by Petitioner. See UTD Corporation (Union-Card Division), 165 NLRB 346 (1967); Corey Brothers, Inc., 162 NLRB 1253 (1967); Welsh Farms Ice Cream, Inc., 161 NLRB 748 (1966). The hospital file clerk's principal responsibility is the filing involved in the maintenance of the blood bank inventory records which keep track of blood transferred out to the hospitals and transferred back. She works in the same area as the desk operators and drivers when they are in the blood bank and under the supervision of the same distribution supervisor. The hospital file clerk also fills in when the desk op- erator is temporarily absent . The drivers from time to time perform the duties of the hospital file clerk at night, since the hospital file clerk works only during the day. The hospital file clerk is paid on a salaried basis and receives overtime compensation for hours worked in addition to regular hours in the same man- ner as all other full-time employees in the distribu- tion department. The foregoing factors make it ap- propriate to include the hospital file clerk in the unit. Petitioner seeks to exclude from the unit a part- time driver because he is the son of the assistant ad- ministrator. Since the Employer is a nonprofit orga- nization, and there is no evidence that the son enjoys special status which allies him with management, we do not believe that his being the son of the assistant administrator is sufficient to serve to disqualify him from inclusion in the unit. Accordingly, we find that the following employees constitute a unit appropriate for the purpose of col- lective bargaining within the meaning of Section 9(b) of the Act: All desk operators, desk operator-drivers, driv- ers, regular part-time drivers, hospital file clerk, and maintenance employees, excluding supervi- sors, office clerical employees, technical employ- ees, professional employees, and guards as de- fined in the Act, as amended. [Direction of Election and Excelsior footnote omit- ted from publication.]