Charles Circle Clinic, Inc.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charles Circle Clinic, Inc. and District 1199 Massa- chusetts National Union of Hospital & Health Care Employees, RWDSU, AFL-CIO, Petitioner. Cases 1-RC-13244 and 1-RC-13245 December 6, 1974 DECISION AND DIRECTION OF ELECTIONS 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 Francis X. McDon- ough. Following the hearing, and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Proce- dure, Series 8, as amended, and by direction of the Regional Director for Region 1, this case was transferred to the National 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 is a Massachusetts corporation en- gaged in providing abortion and gynecological care ser- vices on an outpatient basis in Boston, Massachusetts. The Employer contends that, because the nature of its medical services are primarily local in character, the Board should not assert jurisdiction over its operations. In support of its position, the Employer cites the case of Cleveland Avenue Medical Center, 209 NLRB 537 (1974), wherein the Board declined to assert jurisdic- tion over a medical clinic primarily local in character. Although the hearings herein were directed toward ju- risdictional standards and policies then in effect, effec- tive August 25, 1974, the National Labor Relations Act was amended by adding a new Section 2(14) which enlarged the Board's jurisdiction in the health care field and defines a "health care institution" to include' any hopsital, convalescent hospital, health mainte- nance organization, Jealth clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person. An examination of this legislation and its legislative history shows clearly that Congress intended that the National Labor Relations Act and its underlying poli- i Public Law 93-360, July 26, 1974 cies by extended to medical care facilities whose activi- ties, although they may be local in character, have a substantial impact on commerce. Turning to the facts in the instant case, the record shows that the Employer commenced operations on August 15, 1973. From that date through April 30, 1974, the clinic treated approximately 3,066 patients deriving a gross income of $473,070. Projecting this gross figure over a 12-month period shows that the Employer would gross approximately $668,000. The record also shows that approximately 90 percent of the clinic's patients are residents of the State of Massa- chusetts. In addition, approximately 90 percent of the fees received are derived directly from the patients themselves and do not come from either private em- ployers engaged in interstate commerce or Federal or state governments. The remaining 10 percent of fees for services rendered came from the Massachusetts Medi- caid program, from out-of-state medicaid programs, and from CHAMPUS (Federal military insurance) programs. At the same time, the record shows that the Em- ployer purchases on a monthly basis from local medical supply houses supplies in an average amount of $4,000, half of which is estimated to have originated outside the Commonwealth of Massachusetts. In addition to the foregoing the employer pays approximately $525 a month to various firms in New York City for account- ing services, legal fees, and malpractice insurance premiums, $461 a month to a New York leasing firm for furniture, and approximately $301 a month to Mas- sachusetts firms for utilities. Extended over a 12-month period, these expenditures total approximately $40,000 a year. As the Employer's annual gross income exceeds any discretionary standard we might apply, we find that the impact of the Employer's operations on com- merce is sufficient to warrant assertion of jurisdiction herein and it will effectuate the purposes of the Act to do so.2 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. As to the appropriate unit, although there were two separate petitions filed, one for a professional unit of registered nurses and the other for a nonprofessional 2 Thus, the Employer's gross income substantially exceeds those dollar volume jurisdictional standards applied to hospitals (Butte Medical Proper- ties, d/b/a Medical Center Hospital, 168 NLRB 266 (1967)), nursing homes (University Nursing Home, Inc, 168 NLRB 263 (1967)), visiting nurses associations ( Visiting Nurse Association, Inc., 188 NLRB 155 (1971)), and retail enterprises (Carolina Supplies and Cement Co, 122 NLRB 88 (1958)), and we do not decide at this time specifically what dollar volume standard will be applicable to facilities such as is involved herein 215 NLRB No. 84 CHARLES CIRCLE CLINIC, INC. 383 unit, at the hearing the parties stipulated to a Sonotono-type3 election in which either the petitioned- for units or a merged unit would be appropriate. Ac- cordingly, we find the following voting groups to con- stitute appropriate units within the meaning of Section 9(b) of the Act. Group A: All regular full-time and part-time regis- tered nurses, excluding physicians, supervisors, and all other employees. Group B: All regular full-time and part-time counselors, telephone counselors, nursing aides, laboratory technicians, and administrative clerks, excluding managerial employees, confidential em- ployees, professional employees, supervisors and guards as defined in the Act." Although the unit composition was stipulated to, the Employer contends that Nancy Talbot and Linda Griebsch are supervisors and should be excluded from group B. The Petitioner contends that neither of these employees is a supervisor and both should be included in group B. The record shows that Nancy Talbot is the coordinator of the evening clinic. As coordinator her function basically is to oversee the operation of the clinic during those hours that it is open in the evening. Talbot testified in general that the evening clinic oper- ated in a routine fashion with little or no need for any supervison or direction because each of the employees working at the evening clinic knew what all the jobs were and how to carry out all of the functions related to the evening clinic. Initially, the clinic was open one night a week, and in December 1973 or January 1974 the clinic's hours were extended to a second evening, at or about which time Talbot was appointed coordinator. As of the date of the hearings, a third open evening has been scheduled on a trial basis. During the first weeks that the evening clinic operated on a one-evening-a- week basis, Clinic Administrator Burres was present every night. Talbot was appointed to alleviate the necessity of Burres' being present, and either at the time of her appointment or shortly thereafter, Talbot was given a raise reflecting her duties as coordinator. As coordinator, Talbot spends those afternoons that the evening clinic is open working on things that need to be done for the evening clinic and then she continues on into the evening performing counseling service along with the other counselors. As coordinator, Tal- bot also had regularly scheduled weekly meetings with Burres whereat items such as the operation of the even- ing clinic, the employees' views of the doctors on duty, the scope of the treatment of clients, and the number 3 Sonotone Corporation, 90 NLRB 1236 (1950) 4 At the hearing, it was represented that the Employer had no office clerical employees in its employ Accordingly, this category of employee, in the absence of any evidence, is neither included nor excluded at this time of patients that could be handled on a given night were discussed. Talbot also discussed with Burres one em- ployee who was having trouble doing her job, and as a result of this discussion the employee's job was changed, and on another occasion, Talbot and Burres discussed ways of making the clinic run in a more economical manner. Talbot also testified that if a sched- uling problem arose she would be the person most likely to be consulted as to how to handle it and that she was responsible to see that the evening clinic was adequately staffed. From the above, it is clear that Talbot has had substantial involvement in the opera- tion and expansion of the evening clinic and that in her capacity as coordinator she controls and responsibly directs the operations of the evening clinic. In these circumstances, we find that Talbot is a supervisor within the meaning of the Act and we shall exclude her from group B. As to Linda Griebsch the record shows that she has the title of telephone coordinator. As coordinator, Griebsch has the responsibility to see that the necessary employees are scheduled to work the hours the clinic is open; to train new employees hired for telephone work; and to evaluate prospective employees' job ap- plications, interview applicants, and discuss the qualifi- cations of the applicants with the administrator and in conjunction with-the administrator decide which appli- cant should be hired. In addition, the record shows that management officials refer problems arising from the telephone employees to Griebsch for handling and cor- rection. From the above, it is clear that Griebsch plays an effective part in the hiring of personnel' and has direct responsibility over the daily activities of the six telephone employees. In these circumstances, we find that Griebsch is a supervisor within the meaning of the Act and shall, accordingly, exclude her from group B.5 In accordance with the above findings and the record as a whole, we find that a unit of all regular and part- time registered nurses, full-time and part-time counse- lors, telephone counselors, nursing aides, laboratory technicians, and administrative clerks, but excluding physicians, managerial employees, confidential em- ployees, and supervisors and guards as defined in the Act, may constitute a unit appropriate for the purposes 5 The status of three other employees was put in issue at the hearing One, nurse-anaesthetist Elaine Ward, was alleged to be a supervisor As the limited testimony as to her duties reveals nothing that would establish any supervisory status, we find her to be an employee and included her in voting group A Another, nurse-anaesthetist William Adamski, was questioned on the basis of being an irregular part-time employee . The only facts presented as to this individual are in the Employer's brief to the effect that he worked on 4 different days between April 3 and May 11, 1974. As there is insuffi- cient evidence to establish the regularity of his work he will be allowed to vote subject to challenge if he is still employed by the clinic The third employee, a nurse who substituted for the director of nursing when the director was on vacation , is, we are advised, no longer in the employ of the clinic and, accordingly, her status is a moot issue 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining within the meaning of Section 9(b) of the Act. However, this unit includes profes- sional and nonprofessional employees, which the Board cannot join in a single unit without the desires of the professional employees being determined in a separate vote. Accordingly, we shall direct separate elections in voting groups A and B. The employees in group A will be asked two questions on their ballot: 1. Do you desire to be included in the same unit as other employees employed by the Employer at its Charles Circle Clinic for the purposes of collec- tive bargaining? 2. Do you desire to be represented for the pur- poses of collective bargaining by District 1199 Massachusetts National Union of Hospital & Health Care Employees , RWDSU, AFL-CIO? It a majority of the professional employees in voting group A vote yes to the first question, indicating their desire to be included in a unit with the nonprofessional employees, they will be so included. Their votes on the second question will then be counted with the votes of the nonprofessional employees voting in group B to decide the representative for the entire combined bar- gaining unit (professionals and nonprofessionals). If, on the other hand, a majority of the professional em- ployees in voting group A do not vote for inclusion, they will not be included with the nonprofessional em- ployees and their votes on the second question will then be separately counted to decide whether or not they wish to be represented by the Petitioner in a separate professional unit. Our ultimate determination is based in part on the results of the elections. However, we make the follow- ing findings in regard to the appropriate unit: 1. If a majority of the professional employees vote for inclusion in a unit with the nonprofessional employees, we find that the following employees will constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All regular and part-time registered nurses, full- time and part-time counselors, telephone counsel- ors, nursing aides, laboratory technicians, and ad- ministrative clerks at the Employer's Charles Circle Clinic, but excluding physicians, managerial employees, confidential employees, and guards and supervisors as defined in the Act. 2. If a majority of the professional employees do not vote for inclusion in the unit with nonprofessional em- ployees, we find the following two units to be appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Unit A: All regular full-time and part-time regis- tered nurses, employed at the Employer's Charles Circle Clinic, excluding physicians, supervisors, and all other employees. Unit B.- All regular full-time and part-time counse- lors, telephone counselors, nursing aides, labora- tory technicians, and administrative clerks, em- ployed at the Employer's Charles Circle Clinic, excluding managerial employees, confidential em- ployees, professional employees, supervisors, and guards as defined in the Act. [Direction of Elections and Excelsior footnote omit- ted from publication.]