Albert Einstein College of Medicine of Yeshiva University

National Labor Relations Board - Board Decisions

Nov 23, 1976

226 N.L.R.B. 1141 (N.L.R.B. 1976)

ALBERT EINSTEIN COLLEGE OF MEDICINE 1141
Albert Einstein College of Medicine of Yeshiva Uni-
versity and Committee of Interns and Residents.
Case AO-186
November 23, 1976
ADVISORY OPINION
This is a petition filed on June 11, 1976, by Albert
Einstein College of Medicine of Yeshiva University,
herein called the Petitioner, for an advisory opinion,
in conformity with Sections 102.98 and 102.99 of the
Board's Rules and Regulations, Series 8, as amended,
seeking to determine whether the Board would assert
jurisdiction over the Petitioner. Thereafter, on June
16, 1976, the Committee of Interns and Residents,
herein called the Union, filed a response, with ex-
hibits attached, and, subsequently, the Petitioner
filed a response thereto.
In pertinent part, the petition and the Union's re-
sponse, with exhibits, and the Petitioner's response
allege as follows:
1. There is pending before the New York State La-
bor Relations Board, herein called the State Board, a
charge filed by the Union, Case SU-49810, alleging
that the Petitioner has engaged in unfair labor prac-
tices by refusing to bargain with the Union with re-
spect to clinical fellows employed by Petitioner.
2. The Petitioner is a division of Yeshiva Univer-
sity, which is a private institution of higher education
duly chartered under the Not-For-Profit Corpora-
tions Law and the Education Law of the State of
New York, under which charter it is duly authorized
and empowered, in addition to its education pro-
grams, to acquire, establish, and operate such hospi-
tals, dispensaries, and clinics as may be necessary or
desirable in connection with its college of medicine.
The Petitioner, in addition to providing programs
leading to the degree of doctor of medicine, is re-
sponsible for the professional care of patients in the
Bronx Municipal Hospital Center and Lincoln Hos-
pital, both municipal hospitals, owned by the New
York City Health and Hospitals Corporation. The
Petitioner also provides medical services at mental
health centers and clinics, and provides family medi-
cal care facilities at several Bronx locations.
3. The Petitioner received annual revenues from
health care and related services in excess of $250,000
and annually purchases goods valued in excess of
$25,000 directly from sources located outside the
State of New York. Revenues related to hospital ser-
vices exceed $33 million annually.
4. The Union denies that it has sufficient knowl-
edge and information to form a belief with respect to
the aforesaid commerce data and the State Board has
made no findings with respect thereto.
5. There is no unfair labor practice proceeding in-
volving the same labor dispute pending before this
Board.
6. Although served with a copy of the petition for
advisory opinion, no response, as provided by the
Board's Rules and Regulations, has been filed by the
State Board.
On the basis of the above, the Board is of the opin-
ion that:
1. The Petitioner is a divison of Yeshiva Univer-
sity. The university is a private nonprofit institution
of higher education which, in addition to its educa-
tion programs, is authorized and empowered to ac-
quire, establish, and operate such hospitals, dispen-
saries, and clinics as may be necessary or desirable in
connection with its college of medicine. The Peti-
tioner, in addition to providing programs leading to
the degree of doctor of medicine, is responsible for
the professional care of patients at certain hospitals,
and provides medical services at several facilities.
2. The current standard for the assertion of juris-
diction over the operations of any nonprofit college
or university is a gross annual revenue (excluding
only contributions which, because of limitations by
the grantor, are not available for use for operating
expenses) I of not less than $1 million.' The Petition-
er's gross annual revenues from all sources for unre-
stricted use exceed $1 million and satisfy this mone-
tary standard, while its out-of-state purchases valued
at more than $25,000 establish the Board's statutory
jurisdiction.
With one exception, the Board does not render ad-
visory opinions. The single exception is embodied in
Section 102.98 of the Board's Rules which provides:
Whenever a party to a proceeding before any
agency or court of any State or territory is in
doubt whether the Board would assert jurisdic-
tion on the basis of its current jurisdictional
standards, he may file a petition with the Board
for an advisory opinion on whether it would as-
sert jurisdiction on the basis of its current stan-
dards.
Petitioner is party to an unfair labor practice pro-
ceeding before the New York State Labor Relations
Board brought by the Committee of Interns and Res-
idents. It has requested the Board for an advisory
opinion as to whether the Board would assert juris-
' While the documents submitted to the Board did not indicate whether
Petitioner's $33 million gross annual revenue includes contributions which
are not available for use as operating expenses , we assume , in any event,
that at least $ I million of such gross revenue is unrestricted
2 National Labor Relations Board's Rules and Regulations , Sec 103 I
226 NLRB No. 185
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diction over it on the basis of the Board's current
jurisdictional standards.
As set forth above, Petitioner's operations do satis-
fy the Board's current discretionary jurisdictional
standards. That is all that the Board decides in this
case. The Board will not decide in an advisory opin-
ion whether a company is an "employer" within the
meaning of the Act,' or pari passu, whether individ-
uals sought to be represented are "employees" as de-
fined in the statute.
The Board is not deciding in this advisory opinion
whether it would entertain a proceeding involving
the hospital's interns and residents who are involved
in the case before the State Board. That question
must be determined by the parties themselves on the
basis of Board decisions or by initiating an actual
case before this Board.
Member Fanning in his dissent criticizes the ap-
proach taken in this case although he acknowledges
that the Board does not pass on noncommerce ques-
tions in advisory opinions. However, in Misericordia
Hospital Medical Center, 224 NLRB 865, Member
Fanning joined in a unanimous Board advisory opin-
ion identical with that in the present case. In that
case, the employer, a nonprofit hospital, filed a peti-
tion seeking an advisory opinon as to whether the
Board would assert jurisdiction over it. In its peti-
tion, the hospital set forth commerce facts, and stat-
ed that the Union, the same Union involved in this
case, had filed a petition with the New York State
Labor Relations Board seeking to represent a unit of
interns, residents, and fellows. This Board concluded
that the employer's operations satisfied the Board's
jurisdictional standards for health care institutions
and then advised the parties that the "Board would
assert jurisdiction over the Employer's operations
with respect to disputes cognizable under Sections 8,
9, and 10 of the Act." That is the identical advice in
the present decision. The Board did not decide in
that case and is not deciding in this case that it would
or that it would not entertain a representation peti-
tion or process an unfair labor practice proceeding
involving hospital interns, residents, and fellows.
Accordingly, the parties are advised under Section
102.103 of the Board's Rules and Regulations, Series
8, as amended, that on the allegations submitted
3 Follett Corporation, 223 NLRB 800 (1976), and cases cited therein
herein the Board would assert jurisdiction over the
Petitioner's operations with respect to disputes cog-
nizable under Sections 8, 9, and 10 of the Act.
MEMBER FANNING, dissenting:
I cannot agree with the advice my colleagues are
giving. An advisory opinion proceeding, they say, is
designed to deternune questions of jurisdiction by
application of the Board's discretionary standards to
the "commerce" operations of an employer. The
question of whether Section 2(2) of the Act precludes
the assertion of jurisdiction in a specific case does
not fall within the intendment of advisory opinions.
Accordingly, when that is the basic issue presented,
the Board dismisses the petition for an advisory opin-
ion. Follett Corporation, 223 NLRB 800 (1976).
But that is not what they do here. In this case my
colleagues are saying both that they do not reach or
pass upon the effect of Section 2(2) in precluding the
assertion of jurisdiction, and that they would assert
jurisdiction. Such Delphic advice can be of use only
in prolonging litigation.
It is important to note that this case involves house
staff at a hospital, who have been denied any rights
under the Act by my colleagues' decision in Cedars-
Sinai Medical Center, 223 NLRB 251 (1976). The Pe-
titioner in this case has previously bargained with the
Committee of Interns and Residents, but now has
terminated its contract with the Committee and filed
this petition in the face of the refusal-to-bargain
charge filed with the State Board.
Do my colleagues think that this petition would be
here if the result in Cedars-Sinai had been otherwise?
And how would they assert their jurisdiction over
"disputes cognizable under Sections 8, 9, and 10 of
the Act"? Clearly they would dismiss a Section 9 pe-
tition.' Would they entertain a Section 8 charge? I
must indicate my doubt.
What this petition reveals is that my colleagues
have deprived these interns and residents of any ef-
fective redress in any forum. Therefore, I must dis-
sent.'
See, e g , Barnes Hospital, 224 NLRB 552 (1976) ( Member Fanning dis-
senting)
5 There is an issue in this case as to whether the Employer is an employer
at all under Sec 2(2) of the Act My colleagues attempt to dispose of it by
saying that that kind of issue is not dealt with in advisory opinions I agree,
that is one of the reasons why I think we should dismiss the peition An
advisory opinion that does not advise on what might well be a major and
decisive issue in a case is Hamlet without the Prince of Denmark