St. Peter's School

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Peter's School and League of Licensed Practical Nurses, District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, Petitioner. Case 2-RC-16719 September 22, 1975 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS 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 Melinda Sweet of the National Labor Relations Board. Fol- lowing the hearing, and prusuant to Section 102.67 of the National Labor Relations Board Rules and Re- gulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 2, this case was transferred to the Nation- al Labor Relations Board for decision. The Employer filed a 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. They are hereby affirmed. Upon the entire record in this case, including the brief filed herein, the Board finds: 1. The Employer, a nonprofit corporation orga- nized under the laws of New York State, is engaged in the operation of a home for about 150 dependent and neglected children, most of whom are emotional- ly disturbed. During 1974 the Employer's gross income was ap- proximately $2,000,000 received from the following sources: $1,500,000-New York City; $250,000- Medicaid; $30,000-Westchester County, New York; $25,000-contributions and dividends. The Employer spent more than $50,000 for goods and services from companies located outside the State of New York. The parties agree that the Employer meets the ba- sic $50,000 inflow standards and similarly meets the retail standards of $500,000 gross revenue, that the Employer affects commerce, and for that reason the Board should assert jurisdiction. We so find. The record establishes that the Employer provides residential care and treatment for 155 children rang- ing in age from 6 to 16 years. Children are referred to St. Peter's by the New York City Department of So- cial Services, the Westchester County Department of Social Services, or the Family Court of New York because they have been either neglected, mistreated, or abandoned by their parents and can no longer remain in the family home. Virtually all of the chil- dren have some form of physical disability or emo- tional disturbance and require treatment ranging from group therapy or individual counseling to medi- cation. Thirty-five children receive psychotropic drugs three or four times daily and an unspecified number of other children are under medication for hyperactivity, anxiety, depression, and/or convul- sions. To provide the requisite medical and psychiatric treatment the school staff includes a medical director who is a licensed pediatrician, three full-time regis- tered nurses, one part-time registered nurse, seven li- censed practical nurses, two part-time psychiatrists, two part-time psychologists, and a psychiatric nurse. The school is also responsible for providing for all the medical and dental needs of its residents and to this end maintains an infirmary on the premises which is capable of caring for as many as 12 children at a time. It thus appears, as stated by the Employer in its brief to the Board, that "[a] basic goal of the institution is to cure the children's psychological and emotional trauma." In this respect St. Peter's is dis- tinguishable from the custodial facility involved in Ming Quong Children's Center, 210 NLRB 899 (1974), whose primary purpose was to provide housing and normal care to troubled children, and which did not provide any medical care. Accordingly, we find that St. Peter's unlike Ming Quong, is a health care institu- tion, and that, therefore, the rationale of that deci- sion, i.e., that the Board will not assert jurisdiction over a nonprofit institution whose activities are non- commercial in nature and are intimately connected with the charitable purposes of the institution, is not, in light of the recent health care amendments to the Act, applicable here.' Accordingly, we find, upon the basis of the record as a whole, that the Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein.' i Cf. Lutheran Association for Retarded Children, a California Non-profit Corporation d/b/a Home of Guiding Hands, 218 NLRB No. 195 (1975) Al- though Chairman Murphy dissented in that case she concurs in the asser- tion of jurisdiction herein inasmuch as she agrees that St. Peter's School is a "health care institution " within the meaning of Section 2(14) of the Act. 2 In addition we note that twice prior to the Board's decision in Ming Quong Children's Center, supra, the Regional Director for Region 2 found that this Employer was engaged in commerce within the meaning of the Act (Cases 2-RC-16212 and 2-RC-16257 [19731, not printed in NLRB vol- umes). Indeed, in those cases Petitioner herein was certified as the represen- tative of two bargaining units, one of professional social workers and the other of several categories of service and maintenance workers If the Board were to decline to assert jurisdiction in this proceeding, Petitioner would thus be certified by this Board in the two existing units but would be left to state law procedures to seek certification for the unit sought herein . We find such a result anomolous and assert jurisdiction herein for this further rea- son. 220 NLRB No. 82 ST PETER'S SCHOOL 2. The Petitioner is a labor organization which claims to represent certain employees of the Employ- er. 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 Petitioner seeks to represent a unit of all full-time and regular part-time practical nurses em- ployed by the Employer at St. Peter's School, Peeks- kill, New York, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. The Employer stipulated that the requested unit is appropriate. Accordingly, upon the entire record and in view of the parties' agreement as to the appro- priateness of the unit, we shall direct an election among employees in the following unit which we find to be appropriate for the purposes of collective bar- 481 gaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time licensed prac- tical nurses employed by the Employer at St. Peter's School, Peekskill, New York, excluding all other employees, professional employees, guards, watchmen, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] MEMBER JENKINS, concurring: I agree that the Board should assert jurisdiction herein. In doing so, I regard it as unnecessary to de- termine whether or not the Employer is a health care facility and also find it unnecessary to distinguish Ming Quong, because that case was decided prior to the health care facility amendments to the Act.