Beverly Farm Foundation Inc.

BEVERLY FARM FOUNDATION Beverly Farm Foundation Incorporated and Service Employees Union, Local 50, Affiliated with Service Employees International Union ; AFL-CIO. Cases 14-CA-7893 and 14-RC-7687 ' December 9, 1974 ORDER DISMISSING PETITION FOR DECLARATORY ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Pursuant to Sections 102.105 and 102.106 of the Board's Rules and Regulations, Series 8, as amended, the General Counsel has filed a petition for a declara- tory order and a brief in support thereof to determine whether the Board would assert jurisdiction over Bev- erly Farm Foundation Incorporated, herein called the Employer. Thereafter, the Employer filed a brief in response to the General Counsel's petition and brief. In pertinent part, the General Counsel's petition and supporting brief, and the Employer's response thereto allege as follows: 1. There are presently pending before the Board an unfair labor practice case, 14-CA-7893, and a re- presentation proceeding, 14-RC-7687, both involving the Employer herein. 2. The Employer is a not-for-profit corporation chartered by the State of Illinois, which cares exclu- sively for mentally retarded people at its facility located in Godfrey, Illinois. It currently cares for 431 individu- als at the 215-acre facility. Approximately one-half of the individuals are from the State of Illinois. The corpo- ration is owned by the parents and legal guardians of the individuals who are cared for at the facility. A majority of the individuals currently cared for by the Employer have been in residence for more than 15 years and their ages range from 1 year to over 70 years of age. There is no program at the facility designed to prepare the individuals for eventual return to society. There is instruction in some subjects, such as reading, writing, and geography, the level of which might paral- lel that given elementary school children through grade 8; however, it may take them many years to reach that level. The individuals are also taught such activities as painting, woodworking, and sewing. None of the teach- ers at the facility are currently certified by the State. The Employer cares for approximately 40 individuals who require extra care due mainly to birth defects. The Employer is licensed by the State of Illinois for approxi- mately 400 "sheltered care" beds, and for approxi- mately 40 "intermediate care" beds. The facility em- ploys between 230 and 240 workers of whom 10 are part-time employees, and of all the employees, only 1 is a professional registered nurse who works a 40-hour 401 week and is on call at other times. There are no licensed practical nurses or any other employees who have spe- cialized nurses training or education. A local doctor is on call, if needed, and makes a visit to the facility once a week on a "sick call" basis. A psychiatrist from the area also visits the facility approximately once a month. 3. For the fiscal-year ending June 30, 1974, the budget for the Employer's facility was $1,717,876, of which approximately $1,102,000 was budgeted for sa- laries. The Employer performs services valued in excess of $500,000 for people located outside the State of Il- linois. The parents or legal guardians of each individual cared for by the Employer are assessed between $300 and $350 per individual per month. The Employer re- ceives $7,232 Federal aid through the CHAMPUS pro- gram. It does not receive any Federal money through the Medicare program. During the fiscal year ending June 30, 1974, the Employer received a total of $26,800 in private contributions. More than 90 percent of the operating funds of the facility comes from the fees as- sessed on the parents and legal guardians of the cared- for individuals. The Employer annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of Illinois. 4. There are no proceedings involving the same sub- ject matter pending before any agency or court of a State or territory. 5. Although served with a copy of the petition herein, no response, as provided in the Board's Rules and Regulations, has been received from the Union. 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. a. The Employer operates a facility for the care of mentally retarded individuals in Godfrey, Illinois. b. The General Counsel argues that the Board should assert jurisdiction over the Employer and, in doing so, apply the $100,000 gross revenue standard which ap- plies to nursing homes. Alternatively, the General Counsel urges that should the Board decide that the nursing home standard is not the appropriate jurisdic- tional standard to be applied, then jurisdiction should be asserted as the Employer meets the Board's basic jurisdictional standards. The Employer, on the other hand, contends that, under the facts of this case, the facility involved herein cannot be precisely classified, since it cannot be classified as a nursing home nor can it be classified as a hospital, and, therefore, the petition should be dismissed. The facts' as above set forth indicate that neither our hospital nor our nursing home standards have applica- tion to this Employer. The Employer's operations, it would appear, bear some resemblance to those involved in Ming Quong 215 NLRB No. 73 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Children's Center, 210 NLRB No. 125 (1974); in that case, a majority of the Board declined to assert jurisdic- tion, for reasons set forth therein. However, since issu- ance of the Ming Quong case, Public Law 93-360 has been enacted, relating to the Board's jurisdiction in the health care field. In order for the Board to decide whether it would assert jurisdiction over this Em- ployer, it would need to address itself to the impact of the recent health care legislation on the Ming Quong decision, and on the Board's jurisdictional standards as they might apply to the specific operations of the Em- ployer herein. The Board does not customarily make policy decisions of this type in petitions for a declara- tory order or in petitions for an advisory opinion;' nor is it willing to do so here without the development of a full and complete record. It is hereby ordered that, for the reasons set forth above, the Petition for Declaratory Order herein be, and it hereby is, dismissed. i See, e g, Walker Butler, Presiding Judge, Superior Court of Cook County, ILL, et at, 138 NLRB 221 (1962), Port of Sacramento, 180 NLRB 529 (1969)