Beverly Farm Foundation, Inc.

National Labor Relations Board - Board DecisionsJun 30, 1975

218 N.L.R.B. 1275 (N.L.R.B. 1975)

BEVERLY FARM FOUNDATION, INC. 1275 Beverly Farm Foundation, Incorporated and Service and Hospital Employees Union, Local Union No. 50, of the Service Employees International Union, A,FL-CIO-CLC, Petitioner. Case 14-RC-7687 June 30, 1975 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer F. Rozier Sharp.' Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8 , as amended, this case was transferred to the Board for decision. Thereafter, the Petitioner and the Employer filed briefs. The Board has reviewed the Hearing Officer's rulings made at the hearing and fords that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is a nonprofit Illinois corpora- tion which provides residential care and training exclusively for mentally retarded persons. Although there is no stock in the corporation, every parent, relative, or legal guardian who sponsors an individu- al in the Employer's care becomes a voting member of the corporation with the right to participate in the election of the board of trustees. The Petitioner urges the Board to assert jurisdic- tion herein, contending primarily that the Employer's facility falls within the definition of a "health care institution" under the recent amendments to the Act'2 and that the impact of the Employer's opera- tions on commerce is sufficiently substantial to warrant the assertion of the Board's jurisdiction. The Employer, however, contends, inter alia, that its facility is not a "health care institution" within the meaning of the Act and that, as a matter of policy, the Board should decline to assert jurisdiction under 1 Prior to the instant proceeding, the General Counsel had filed a Petition for Declaratory Order seeking a determination by the Board as to whether it would assert jurisdiction over the Employer herein, in view of the pendency in the Regional Office of a representation and an unfair labor practice case involving this Employer . Thereafter, the Board issued an Order Dismissing Petition for Declaratory Order, 215 NLRB No. 73 (1974), in which it stated , inter alia, that it was unwilling to make a policy decision of this type without the development of a full and complete record Accordingly, the Regional Director proceeded on the representation petition. 2 Public Law 93-360 (July 26, 1974). 5 2I0 NLRB 899 (19,74) 4 Trhe Employer has been licensed pursuant to the Illinois "Nursing Home, Sheltered Care Homes , and Homes for the Aged Act" (III. Rev. Stat. 1971, Ch. 111-1/2, pars. 35.16-35.31). The terms "sheltered care facility" and "intermediate care facility" appear in the "Minimum 218 NLRB No. 194 the rationale of its prior decision in Ming Quong Children's Center.3 For the reasons set forth below, we find that the assertion of the Board's jurisdiction is warranted herein. At the time of the hearing, the Employer had in its care 437 individuals, all but approximately 6 of whom resided at the Employer's facility. These 437 individuals, who range in age from I to 90 years, are all mentally retarded and most, as described by the Employer, are considered to be moderately to severely retarded. Approximately 5 percent of the residents also have physical disabilities, including blindness, deafness, or physical deformity. The Employer's programs consist of classroom instruc- tion, the level of which might parallel that given elementary school children through grade 8, and the teaching of such activities as sewing, painting, weaving, and woodworking. Additionally, the Em- ployer provides various recreational activities. These programs, however, are designed neither to prepare the residents for eventual return to society nor to make the residents economically self-sufficient. Thus, the record discloses that a majority of the residents have been cared for by the Employer for periods ranging from 15 to 60 years. The Employer's facility, situated on 215 acres, is comprised primarily of 11 residential cottages, a central kitchen and dining room, a classroom building, an administration building, and recreation- al areas. Ten of the cottages have been licensed by the Illinois Department of Public Health as "shel- tered care" facilities, and the remaining cottage, which houses approximately 50 of the youngest and bed-confined residents, has been licensed as an "intermediate care" facility.4 The only "medical facility" on the Employer's premises is a nurse's office. The Employer's day-to-day operations are admin- istered by an executive director who is the only professional social worker on the Employer's staff. The remaining staff, comprised of approximately 250-260 employees , includes maintenance , laundry, housekeeping, and dietary personnel, as well as non- Standards, Rules and Regulations for the Licensing of Long -Term Care Facilities," promulgated pursuant to that act , and are defined as follows: A Sheltered Care Facility provides personal care and assistance, supervision oversight [sic ], and a suitable activities program . Provisions are made for medical care as necessary. Such facilities are for individuals who do not need nursing care, but do need personal care, assistance, supervision , and/or oversight in meeting their daily personal needs. An Intermediate Care Facility provides basic nursing care and other restorative services under periodic medical direction . Many of these services may require skill in administration . Such facilities are for patients who have long-term illnesses or disabilities which may have reached a relatively stable plateau. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD state-certified teachers, cottage attendants, a regis- tered nurse, a physician, and a psychiatrist. The cottage attendants, who work on varying shifts on a 24-hour basis, provide the regular care for the residents, including dressing and feeding them, ensuring that they attend classes and training sessions, and dispensing ' medicines. The registered nurse, who works a 40-hour week and is on call at all other times, maintains the nurse's office, and routinely visits each of the cottages to perform regular checkups of the residents. The physician visits the facility one-half day each week and is on call at all other times . During her visits she conducts a rotating series of annual or semiannual checkups of the residents and attends to residents referred to her by the registered nurse. The psychiatrist visits the facility once a month, treating various residents as the need arises. In the event of serious illness or emergency, either the physician is contacted or the residents are taken to a hospital for treatment. The record further discloses the following financial data with respect to the Employer's operations: For the fiscal year ending June 30, 1974, the Employer had gross revenues of $1,717,876. The Employer's current budget estimates gross income of $1,828,788. Over 90 percent of the Employer's gross income for fiscal year 1974 was derived from fees assessed against the parents and legal guardians of the residents, the current rate of assessment being $350 per month. Of the remaining revenues, all of which appear in approximate amounts, $25,000 was derived from contributions. The Employer received an additional $50,000 to $60,000 from the Illinois Department of Mental Health and $70,000 from various other state departments of health through the application for such payments by parents and legal guardians of the residents. Additionally, the Employ- er received $40,000 from various school districts within the State of Illinois; $8,000 from social security payments; and $8,000 from CHAMPUS (Federal military program). No income was derived from Federal or state medicare programs. The Employer annually purchases goods valued between $250,000 and $300,000 from firms outside the State of Illinois. Additionally, approximately 175-200 residents are from the State of Illinois and the remainder come from a total of 34 other States. The National Labor Relations Act was amended by the enactment of Public Law 93-360, effective August 25, 1974, which extended the coverage of the Act within the health care field. Under the new Section 2(14) of the Act, the term "health care institution" is defined as including: "any hospital, convalescent hospital, health maintenance organiza- tion, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person. " (Emphasis supplied.) Thus, this definition is written in the broadest of terms. Furthermore, an examination of the legislative history of the amendment clearly reveals that Congress, concerned with the disruption caused by strikes in the critically important health care field, intended that the Board's jurisdiction be extended to the entire patient-oriented health care industry. Of particular significance in the instant case is that portion of the legislative history in which Congress- men Thompson and Ashbrook, cosponsors of the House bill, engaged in the following discussion with Congressman Dellenback: MR. DELLENBACK (Oregon): Mr. Chairman, for the purpose of establishing legislative intent, I would like to ask the gentleman from New Jersey [Rep. Thompson] a few questions about the provisions of H.R. 13678. . . . Is my assumption correct that the definition of health care institu- tion would not include health spas or, diet clinics and the sort; is that the gentleman's understand- ing as well? MR. THoswsoN: Yes. One might add certain kinds of halls. I would agree that those commer- cially operated muscle-building organizations, or those that provide only health services for weight loss, outside of any patient care function, would not come within our definition of health care organization. When we use that term we are looking to real patient care and health service delivery, whether inpatient or outpatient. In addition, we do not mean it just as to the sick or aged. We mean it also to apply to specialty health services, to private institutions caring for the mentally retarded, and the like. [Emphasis supplied.] MR. DELLENBACK: May I ask the gentleman from Ohio [Rep. Ashbrook] whether his under- standing agrees with that of the gentleman from New Jersey? MR. ASHBROOK: I would say the statement made by the gentleman from New Jersey would be absolutely accurate.5 It is clear from this that Congress specifically intended that the coverage of the National Labor Relations Act be extended to include the very type of operation involved herein; namely, facilities provid- ing care for the mentally retarded. We therefore conclude, both on the basis of the broad language of the legislation itself and on congressional intent as 5 Cong. Rec.-House, H.4594 (daily ed., May 30, 1974); "Legislative Relations Act, 1974-Public Law 93-360 (S .3203)," pp. 305-306. History of the Coverage of Nonprofit Hospitals Under the National Labor BEVERLY FARM FOUNDATION, INC. 1277 revealed by the legislative history of the amend- ments, that the Employer's facility falls within the definition of a health care institution within the meaning of Section 2(14). To hold otherwise would, we believe, constitute a restrictive interpretation of the new legislation in utter derogation of a clear mandate by Congress. Accordingly, we must consid- er the monetary aspects of the Employer's opera- tions. As noted above, the Employer's gross annual income, as projected for the current year, amounts to $1,828,788. Inasmuch as this amount clearly exceeds the $250,000 jurisdictional standard which we have established for, inter alia, the type of health care institution involved herein,6 we find that the impact of the Employer's operation on commerce is suffi- cient to warrant assertion of jurisdiction herein and it will effectuate the purposes of the Act to do so.7 2. The labor organization involved claims to represent certain employees of the Employer. 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 parties stipulated, and we find, that the following employees of the Employer constitute a 6 See East Oakland Community Health Alliance, Inc., 218 NLRB 1270 (1975). 7 Member Penello , in view of the recent legislation , deems the rationale of Ming Quong, supra, inapplicable in cases such as this involving a facility which is a health care institution within the meaning of Sec 2(14) of the Act However , he adheres to his views expressed in Ming Quong insofar as they relate to a charitable organization which is not a health care institution 9 In its brief, the Petitioner stated its desire also to represent housekeeping employees . Members Fanning and Jenkins find that, inasmuch as the parties apparently did not contemplate the unit placement unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its Godfrey, Illinois, facility, including nurse's at- tendants, laundry, dietary, and maintenance workers, excluding teachers, all office clerical employees, professional employees, guards and supervisors as defined in the Act.8 Accordingly, we shall direct that an election be held among the employees in the unit found appropriate. [Direction of Election and Excelsior footnote omitted from publication.] CHAIRMAN MURPHY and MEMBER KENNEDY, dissent- ing: We would not assert jurisdiction over the Employer herein for the reasons set forth in the dissent in Lutheran Association for Retarded Children, a Califor- nia Non-Profit Corporation d/b/a Home of Guiding Hands, 218! ! NLRB '1278 (1975), issued today. We would dismiss the petition. of such employees and as the record discloses no evidence concerning their functions or interests , there is here no valid reason to include them in the unit Member Penello, unlike his colleagues , considers that the unit stipulation here , i e , '[a III employees employed by the Employer at its Godfrey, Illinois, facility, including .. " clearly reveals an intention by the parties to include all classifications of employees not specifically excluded Cf. N.LRB. v. TheJoclin Manufacturing Company, 314 F 2d 627, 632 (re: employee Ursine) (C A. 2, 1963) He, therefore, finds that the requested unit, including the housekeeping employees , constitutes an appropriate unit herein.