Baker Places, Inc.

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker Places, Inc. and Local 250, Hospital and Insti- tutional Workers' Union, AFL-CIO, Petitioner. Case 20-RC-12145 July 11, 1975 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Alan Fener. After the hearing and pursuant to National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 20 issued a Decision and Order dismissing the petition. Peti- tioner filed a request for review, which was granted by the Board, and a further hearing was held for the limited purpose of taking testimony regarding the impact on commerce of the Employer's business. Thereafter, 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 prejudi- cial error was committed. They are hereby affirmed. Upon the entire record in the case, the Board finds: 1. The Employer is a nonprofit California corpo- ration engaged in the operation of three halfway houses I in the city and county of San Francisco es- tablished to provide residential and rehabilitative services to prepare mentally disturbed patients for the transition from living in a mental institution to independent living. The residents of the houses do the cooking, cleaning, and chores around the houses under the supervision of employees of the Employer. The stay of a patient at any of the houses is limited; at one of the houses the maximum stay is 30 days, at the two others it is 9 months. The primary service of the houses is residential. They offer a temporary home to people. They do not render psychotherapy services to clients and do not have any professionals on the staff offering such services. They do offer counseling in a more informal sense, that is, helping the clients organize their daily activities, helping them find a more permanent place to live, and helping them in referrals for therapy, vo- cational guidance, legal aid, etc. The Employer's referral process requires that to be accepted a patient must have his application filled out by a therapist who has an office or operates in San Francisco; generally patients are referred by a local mental hospital. At Mandala House, one of the three operated by the Employer, no patient is accept- ed who lives outside the local mental health district. At the other two houses, 90 percent or more of the patients also reside in the mental health districts where the houses are located; however, there is a "loophole" which permits acceptance of a small number of patients who may not have a local ad- dress, but who have gone through the local mental health system and have been referred by a local hos- pital. During the fiscal year ending June 30, 1974, the Employer had gross receipts of about $225,000. About 50 percent of this sum was received from the Community Mental Health Districts of San Francis- co which in turn received such money from the State of California. Approximately 25 to 30 percent also was received through the Community Health Dis- tricts, but this is MIH staffing grant money that came from the Federal Government to the State to the county, to the city, to the district, and then to the Employer. The remainder of the income was received from patient contributions and private foundations. During the 1974 fiscal year, the Employer made no out-of-state purchases; it does not have any sales. The Employer asserts that it is a charitable, non- commercial enterprise whose activities are local in nature and have little impact on interstate commerce. Accordingly, it argues that the Board should refuse to assert its jurisdiction in this case on the authority of Ming Quong Children's Center, 219 NLRB 899 (1974) (Member Kennedy concurring in the result; Member Fanning dissenting), where the Board de- clined to assert jurisdiction over a nonprofit, charita- ble corporation which operated a home for disturbed children. Petitioner, on the other hand, contends that the Ming Quong decision is no longer applicable in view of the recent health care amendments to the Act. It also urges that, in deciding upon a gross reve- nue standard for asserting jurisdiction of health care facilities like those of the Employer, the Board should utilize the $100,000 gross annual revenue standard previously established for nursing homes? On July 26, 1974, the National Labor Relations Act was amended so as to extend its coverage to health care institutions which are defined as follows:' (14) The term "health care institution" shall include any hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other in- stitution devoted to the care of sick, infirm, or aged person. [Emphasis supplied.] Member Jenkins and Penello find that halfway i The term halfway house is used to describe an institution which services 2 University Nursing Home, Inc, 168 NLRB 263 (1967). individuals who are halfway along the path from mental hospital living ' Public Law 93-360, 93d Cong S3203, 88 Stat. 395 219 NLRB No. 16 BAKER PLACES, INC. 87 houses such as those operated by the Employer are encompassed within the above definition of "health care institution." Halfway houses are intended to be part of the treatment pattern for mentally ill persons. They are designed to facilitate the transition of men- tally ill persons from state mental institutions to ordi- nary living. In fact, their purpose is to substitute for and make unnecessary prolonged confinement in mental hospitals. To the extent that they are success- ful in their endeavors, state mental hospitals may be curtailed or closed entirely. In a real sense, although it is not a hospital, the halfway house is a treatment facility for the mentally sick. The statutory definition of "health care institution" is very broad. It con- cludes not only specific types of health care facilities, but every "other institution devoted to the care of sick, infirm, or aged persons.4 A halfway house is devoted to the care of the mentally ill. The fact that its purpose is rehabilitative does not make it any less a "health care institution." Member Jenkins and Pe- nello, however, would not assert jurisdiction over this Employer because its total gross annual income is less than $250,000. In East Oakland Community Health Alliance, Inc., 218 NLRB No. 193 (1975), the Board has decided that in the health care field, ex- cept for nursing homes, visiting nurses associations, and related facilities, it would not, in the exercise of its discretion, assert jurisdiction of a health care insti- tution as defined in Section 2(14) of the Act, unless the employer's gross annual revenue amounted to at least $250,000. Inasmuch as the Employer's annual revenue for the 1974 fiscal year was less than that sum, Members Jenkins and Penello would dismiss the petition. Chairman Murphy and Member Kennedy join Members Jenkins and Penello in dismissing the peti- tion. However, they have an additional reason for 4 See Beverly Farm Foundation, Incorporated, 218 NLRB No. 194 (1975) (Chairman Murphy and Member Kennedy dissenting). dismissing. The Chairman and Member Kennedy would find that halfway houses are-not "health care institutions" within the meaning of Section 2(14) of the Act,' as they do not render psychotherapy or other special health care services but essentially serve as temporary, supportive residences. They would therefore apply the doctrine of Ming Quong Children's Center, 210 NLRB 899 (1974), and in the exercise of the Board's discretion decline to assert jurisdiction over "this type of nonprofit institution whose activities are noncommercial in nature and are intimately connected with the charitable purposes of the institution." Inasmuch as we would not assert jurisdiction over this Employer, we shall dismiss the petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBER FANNING, concurring in part and dissenting in part: Although I agree with Members Jenkins and Pe- nello that the "half-way houses" involved herein con- stitute a health care facility, I do not share their view that jurisdiction should not be asserted because the Employer does not meet the Board's $250,000 stan- dard 6 The record discloses that the gross annual volume of the Employer is between $200,000 and $250,000, and that 50 percent and approximately 30 percent of the Employer's funds were derived from the State of California and Federal agencies, respectively. In view of the source of most of the Employer's funds and for the reasons stated in my separate opinion in East Oakland, I would apply the $100,000 standard used for nursing homes and related facilities and as- sert jurisdiction herein. S Compare their dissenting opinion in Lutheran Association for Retarded Children, et al, 218 NLRB No. 195 (1975) 6 See my dissent in East Oakland Community Health Alliance, supra.