East Oakland Community Health Alliance, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1270 (N.L.R.B. 1975)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Oakland Community Health Alliance, Inc.1 and
Local 250, Hospital and Institutional Workers,
SEIU, AFL-CIO, Petitioner. Case 20-RC-12479
June 30, 1975
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MURPHY AND 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 Lawrence
W. Hanson of the National Labor Relations Board.
Following the close of the hearing, the 'Regional
Director for Region 20 transferred this case to the
Board for decision. Thereafter, the Petitioner filed a
brief.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and fmds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, includ-
ing the brief filed herein, the Board fmds:
1. The Employer is a California corporation
licensed by the State of California Department of
Health as a community nonprofit health clinic and is
engaged in the operation of a family health center for
the medically indigent in East Oakland, California.
The Employer asserts that the Board should not
assert jurisdiction over its operations because they
are local in character and lack an impact on
interstate commerce. For the reasons hereinafter
enumerated, we find the Employer's contentions
lacking in merit.
The recently enacted Section 2(14) of the Act
enlarged the Board's jurisdiction in the health care
field and defines "health care institution" to include:
"any hospital, convalescent hospital, health mainte-
nance organization, health 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
Act and its underlying policies be extended to all
health care institutions falling within the above
definition, including those medical care facilities
whose activities, although they may be local in
character, have a substantial impact on commerce.2
Turning to the facts of the instant case, the record
shows that the Employer is open for business 8 hours
a day, 5 days a week. The Employer provides only
out-patient services for its patients, approximately 95
percent of whom are from a specific area in East
Oakland (from 5th Avenue to the San Leandro
County line). Patients from outside this area are
treated on an emergency basis only and are immedi-
ately referred to a local hospital where they receive
treatment from other sources. The Employer's staff
consists of an executive director and approximately
15 other employees. Area physicians donate their
time , and dental work is performed by students from
the University of the Pacific Dental School. Three
physicians are on duty at any one time, although the
figure can vary with an increasing or decreasing
patient load.
In fiscal 1974, the Employer's operating budget
was $263,783, all of which was used to defray the cost
of salaries, supplies, and equipment. This sum was
derived from the following sources: $239,417 from
Alameda County through Federal revenue sharing; a
one-time grant of $25,000 from Alameda County for
the development of a record and patient flow system;
approximately $13,341 in patient fees; 3 $1,000 from
MediCal (the California health program); grants of
$1,000 and $5,000 from the Clorox Foundation and
the Alameda-Contra Costa Foundation, respectively,
specially earmarked for the purchase of air-condi-
tioning equipment; and a $5,000 grant from the
Benton Foundation earmarked for the purchase of
special Ob-Gyn equipment. '
In fiscal 1975, the Employer's projected, budget is
approximately $337,000 of which approximately
$294,300 will come from Alameda County through
Federal revenue sharing. The remaining $43,000 will
come from patient fees and MediCal payments. At
the time of the hearing, the Employer was awaiting
approval of its application for certification to bill
Medicare for eligible patients.
The Employer's purchases in, fiscal 1974 totaled
approximately $12,000, all of which were made from
local suppliers. There was no evidence regarding the
source of the goods and materials supplied to the
Employer. For fiscal 1975, the Employer's projected
purchases are approximately $20,000.
Based on the above evidence, we find that the
Employer is a health care institution within the
meaning of Section 2(14) of the Act and is the type of
medical operation over which the Board has previ-
ously asserted jurisdiction since the enactment of the
health care amendments .4 While the record does not
establish any direct or indirect inflow of goods or
services, the record does establish that the greatest
portion of the Employer's revenues derives ultimately
' The names of the Employer and the Petitioner appear as amended at 3 Patients are billed on a sliding fee schedule based on ability to pay the
the hearing . minimum fee for services established by the California Medical Association.
2 Charles Circle Clinic, Inc., 215 NLRB No . 84 (1974); Bio-Medical The county is billed for the amount not payed by the patient or by MediCal.
Applications of San Diego, Inc., 216 NLRB No. 115 (1975). 4 See cases cited in fn. 2, supra.
218 NLRB No. 193
EAST OAKLAND COMMUNITY HEALTH ALLIANCE, -INC. 1271
from Federal revenue sharing which is nationally
administered by the Social Security Administration.
In our view, the Employer's participation in and
receipt of moneys through federally supported health
care programs adequately demonstrates that the
Employer's operations have a substantial effect on
commerce,5 and establishes the required statutory
jurisdiction of this Board.
There remains for our consideration the question
of whether the Employer's gross revenues satisfy any
of the Board's discretionary jurisdictional standards.
Since the enactment of the recent' health care
amendments to the Act, the Board has not promul-
gated any new discretionary (i.e., monetary) jurisdic-
tional standards for health care institutions. Howev-
er, in the interests of clarity and more efficient
administration of the Act, we are now prepared to
establish minimum monetary jurisdictional standards
for health care institutions as defined in Section 2(14)
of the Act. In so doing, we are mindful that, in the
exercise of our discretionary jurisdictional authority,
we need not assert jurisdiction in all cases dealing
with a- particular classification of employers .6 In
addition, we have carefully examined the relevant
legislative history which, in our view, leaves to the
Board to determine whether to apply any of our
current jurisdictional standards7 or to establish new
ones..
Thus, early in the debates, Senator Taft indicated
that he thought that the Board would continue to
apply reasonable monetary standards in the health
care industry. Noting current inflation, he expressed
the hope that the Board would continue to apply its
current, if not greater, monetary jurisdictional
standards .8 Later in the debates, Senator Williams,
commenting on Senator Taft's remarks, expressed
the view that the catchall language contained in
Section 2(14) of the Act included in the Act's
coverage "any and all clinics, etc." without regard to
previous Board standards, much less "more exclusive
standards."9 Finally, Representatives Ashbrook and
Thompson, in a joint statement to "clarify the intent"
of certain of Senator Williams' statements, observed
that the House Committee "was fully aware of the
National Labor Relations Board's present monetary
standards for assertion of jurisdiction and in no way
5 The Board has continuously pointed to participation in such programs
as a factor demonstrating that health care institutions have a substantial
effect on commerce. Butte Medical Properties, d/b/a Medical Center
Hospital, 168 NLRB 266, 267 (1967)(propnetary hospitals); University
Nursing Home, Inc., 168 NLRB 263,264 (1967); Rosewood Inc, 185 NLRB
193, 144:(1970) (proprietary nursing homes); Drexel Home, Inc, 182 NLRB
1045, 1046 (1970); Bethany Home for the Aged 185 NLRB 191 (1970); The
Swanholm, an operation of The Martin Luther Foundation Inc., 186 NLRB 45
(1970) (nonprofit nursing homes); Quam and Ramstad Clinic, 173 NLRB
1185 (1968)(physicians clinic); Visiting Nurses Association of Sacramento,
187 NLRB 731 (1971); Visiting Nurse Association Inc., 188 NLRB 155
(1971) (home-health care agencies). See also The National Lutheran Home
meant to disturb those standards or limit the Board's
discretion for changing them or issuing new stand-
ards if it so chose." 10
Accordingly, in the exercise of our discretion, we
find that it will effectuate the policies of the Act to
retain the $100,000 discretionary jurisdictional stand-
ards which we have heretofore applied for such
health care institutions as nursing homes, visiting
nurses associations, and related facilities, and the
$250,000 for hospitals of any type. We also find that
it will effectuate the policies of the Act to limit the
exercise of our jurisdiction to those cases involving
all other types of health care institutions as defined
in Section 2(14) of the Act where the employer
involved receives at least $250,000 in gross revenues
per annum.
Our dissenting colleague agrees with our determi-
nation to continue to apply the two existing discre-
tionary monetary standards heretofore used by the
Board in establishing jurisdiction over employers in
the health care industry. Thus, our colleague agrees
with us to continue to apply the $100,000 standard to
nursing homes, visiting nurses associations, and
related facilities, and the $250,000 standard applied
to proprietary hospitals. In addition, our colleague
does not take issue with our determination to extend
the $250,000 standard to nonprofit hospitals, over
which our statutory jurisdiction has been extended
by the recent health care amendments to the Act. In
these circumstances, we are perplexed by his state-
ments that the Board is applying "more exclusionary
standards than it had been applying," and that we
have departed "from the $100,000 standard for
nursing homes and related facilities." Insofar as we
can determine either from precedent or the dissent
herein, we have not abandoned any of our preexist-
ing' standards in this area. As we perceive the
disagreement between ourselves and our dissenting
colleague, it is restricted to our decision to apply a
$250,000 instead of $100,000 monetary standard to
those other types of health care institutions, as
defined in Section 2(14) of the Act, over which we
have not previously asserted jurisdiction or have
declined to do so, or over which we have not
heretofore established any discretionary jurisdiction-
al standards.
for the Aged 203 NLRB 408 (1973); Good Samaritan Hospital a/k/a Good
Samaritan Home for the Aged 185 NLRB 198 (1970).
6 Office Employees International Union, Local No. 11 v. N.LRB., 353
U.S. 313, 318 (1957).
7 In the health care industry we have already established a standard of
$250,000 for proprietary hospitals (Butte Medical Properties, d/b/a Medical
Center Hospita4 supra); $ 100,000 for nursing homes (University Nursing
Homes, Inc., and Drexel Home, Inc., supra); and for home-health care
agencies (Visiting Nurses Association of Sacramento, supra).
8 120 Cong. Rec. S7,310 (daily ed. May 7, 1974).
9 120 Cong. Rec. H 12,104 (daily ed. July 10, 1974).
io 120 Cong. Rec. E4849-4850 (daily ed. July 18, 1974).
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In that respect, we note that Congress, in extending
our statutory jurisdiction to all. such defined health
care institutions, did not indicate which discretionary
jurisdictional standard or standards the Board
should establish and/or apply thereto. Thus, as more
fully discussed above, comments in the Senate
concerning the application of our discretionary
jurisdictional standards to health care institutions
ranged from one extreme of applying current, if not
greater, standards" to the opposite extreme of
dispensing with all preexisting standards.12 The final
comment on the subject of the application of the
Board's discretionary jurisdictional standards, made
by way of clarification of previous statements on the
subject, was that the health care amendments were
not "meant to disturb [the Board's existing discre-
tionary jurisdictional] standards or limit the Board's
discretion for changing them or issuing new stand-
ards if it so chose." 13
In the instant case, as we have already emphasized,
we have not changed any of the Board's preexisting
discretionary jurisdictional standards for those
health care institutions over which we have previous-
ly had statutory jurisdiction. In the case of nonprofit
hospitals, we have merely extended our current
$250,000 standard for proprietary hospitals to non-
profit hospitals as well.14 In all other respects, we
have promulgated new standards only for health care
institutions for which there have been no previous
standards, something which the Congress has clearly
left to our discretion. Thus, rather than inviting
additional litigation, as our colleague suggests our
actions herein will produce, we have taken steps to
reduce and prevent such litigation by continuing in
effect our existing standards for those health care
institutions for which we have previously established
such standards, and have established a single clear
and explicit standard, which will present no adminis-
trative problems in its application, for all other
health care institutions, as defined in Section 2(14) of
11 See our discussion of the remarks of Senator Taft, supra
12 See our discussion of the remarks of Senator Williams, supra
13 See our discussion of the remarks of Representatives Ashbrook and
Thompson, supra
14 As the Board found in establishing that standard, " this standard will
require the assertion of jurisdiction over that part of the class of employers
involved herein which exerts a significant impact on commerce, and does so
without burdening the Board's processes by involving the Board in the
remainder of that class where the impact is relatively slight" Butte Medical
Properties, d/bla Medical Center Hospital, supra. We believe that that
statement is as applicable today as it was at the time that decision issued,
and nothing that our colleague asserts to the contrary really challenges or
refutes the currency of its validity as applied not only to hospitals, both
profit and nonprofit, but also to other types and kinds of health facilities
over which, by virtue of the scope and intent of Sec. 2(14) of the Act, we
have decided to assert jurisdiction.
15 We chose the $250 ,000 hospital standard rather than the $100,000
nursing home standard our colleague prefers, because , from our examina-
tion of the other types of health care facilities which have come before us,
the Act, over which our statutory jurisdiction has
been extended.15
The Employer operates as a health clinic and is
therefore subject to the $250,000 standard. Accord-
ingly, for all the reasons set forth herein, and because
the Employer's gross annual revenues exceed
$250,000 per annum,16 we fmd that the Employer is
engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
2. The labor, organization involved claims to
represent certain employees of the Employer.
3. A question affecting - commerce exists concern-
ing the representation of certain, employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner originally sought an election in
a unit composed,of all employees of the Employer.
However, at the hearing, the parties stipulated to a
Sonotone-type 17 election in which the- professional
employees in voting group A could vote on whether
they wished to be included in the same unit as the
nonprofessional and nonsupervisory employees in
voting group B. Accordingly, we find the following
voting groups to constitute appropriate units within
the meaning of Section 9(b) of the Act:
Group A: All registered nurses employed at the
Employer's facility in Oakland, California; ex-
cluding all other employees, guards, and supervi-
sors as defined in the Act.
Group B: All nonprofessional and nonsupervisory
employees employed at the Employer's facility in
Oakland, California; excluding the executive
director, the director of the Dental Clinic, the
executive secretary, guards, and supervisors as
defined in the Act.18
In accordance with the above findings, we find that
a unit of all registered nurses , medical receptionists,
secretary receptionists, clerk typist receptionists,
this dollar volume seemed, as in the case of hospitals, more representative of
facilities of significant size in impact on commerce and numbers of
employees.
16 The fact that the greatest portion of the Employer's revenues derives
from the receipt of Federal moneys rather than direct patient fees does not
affect the basis for asserting jurisdiction . The Board , in determining whether
a jurisdictional standard has been met , looks to the amount of income, and
not the source of that income . See, e.g., Sec. 103.1 of the National Labor
Relations Board Rules and Regulations, Series 8; as amended , which states
that the Board will assert its jurisdiction in any proceeding involving any
private nonprofit college or university "which has a gross annual revenue
from all sources (excluding only contributions which, because of limitation
by the grantor, are not available for use for operating expenses) of not less
than $1 millipn [emphasis supplied ]."
17 Sonotone Corporation, 90 NLRB 1236 (1950).
is We accept the parties ' stipulated description of voting group B as
including medical receptionists, secretary receptionists , clerk typist recep_
tiomsts, LVN's, medical assistants , dental assistants , and medical laboratory
technologists.
EAST OAKLAND COMMUNITY HEALTH ALLIANCE, INC.
LVN's, medical assistants, dental assistants, and
medical laboratory technologists, but excluding the
executive director, the director of the Dental Clinic,
the executive secretary, guards, and supervisors as
defined in the Act, may constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. However, this
unit includes professional and nonprofessional em-
ployees, 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 Oakland, California, facility for the purposes
of collective bargaining?
2. Do you desire to be represented for the
purposes of collective bargaining by Local 250,
Hospital and Institutional Workers, SEIU, AFL-
CIO?
If 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 nonprofession-
al employees voting in group B to decide the
representative for the entire combined bargaining
unit (professionals and nonprofessionals). If, on the
other hand, a majority of the professional employees
in voting group A do not vote for inclusion, they will
not be included with the nonprofessional employees
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
following 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 bargaining within the meaning of Section
9(b) of the Act:
19 [Excelsior fn. omitted from publication.]
20 As the Board found in establishing that standard , "[w ]ere we to set a
$250,000 gross revenue standard for the nursing home industry , it would
confine our asserted jurisdiction to a segment of that industry so small as to
have little constructive impact on the labor relations of the industry as a
1273
All registered nurses, medical receptionists, secre-
tary receptionists, clerk typist receptionists,
LVN's, medical assistants, dental assistants, and
medical laboratory technologists employed at the
Employer's facility in Oakland, California, but
excluding the executive director, the director of
the Dental Clinic, the executive secretary, 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 nonprofession-
al employees, we find the following two units to be
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
Unit A: All registered nurses employed at the
Employer's facility in Oakland, California; ex-
cluding all other employees, guards and supervi-
sors as defined in the Act.
Unit B: All nonprofessional and nonsupervisory
employees employed at the Employer's facility in
Oakland, California; excluding the executive
director, the director of the Dental Clinic, the
executive secretary, guards, and supervisors as
defined in the Act.
[Direction of Elections omitted from publication.]l9
MEMBER FANNING, concurring in part and dissenting
in part:
I concur in the decision to assert jurisdiction over
the Employer's health clinic operations and in the
unit determinations and the direction of elections.
I concur also in the determination of jurisdictional
standards for the health care industry to the extent
that my colleagues retain the $100,000 gross revenues
standard for nursing home and related facilities.
Certain it is that Congress did not enact the health
care amendments to the Act with their carefully
thought-out provisions for the peaceful settlement of
disputes in the industry, specifically applying them to
those sectors of the industry over which the Board
previously had asserted jurisdiction as well as to
other sectors of the industry as to which the Board
had declined to assert, only to have the Board apply
more exclusionary standards than it had been
applying. One simply cannot construct a reasonable
rationale for departing from the $100,000 standard
for nursing homes and related facilities.20 My
colleagues do, of course, recognize this, and they
retain that standard.
whole, thereby failing to effectuate our policy determination to extend the
benefits and protections of the Act to employers, employees , and labor
organizations in this industry to the fullest extent possible without unduly
burdening the Board's processes ,,its workload, or its budgetary limitations."
University Nursing Home, Inc., 168 NLRB 263, 264.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I dissent, however, from their decision to apply a
more exclusionary standard to other sectors of the
industry. Congress quite clearly has treated the entire
health care industry as one industry. The procedures
provided for insuring the right of employees in the
industry to organize and bargain collectively and for
maintaining the continuity of health care services for
patients extend equally to all sectors of the -indus-
try.21 Moreover, this legislative judgment was made
in recognition of the fact that, as to those sectors of
the industry over which the Board had been asserting
jurisdiction, "the coverage has resulted in favorable
experience for the public and for those employees
who are employed in these sectors of the health care
industry,"22 and "[t]here is no logical reason why
employees engaged in the same industry should be
treated differently . . . . this bill will eliminate the
disparity of treatment." 23 My colleagues nevertheless
maintain a disparity of treatment between those
sectors of the industry as to which the, Board
previously had asserted jurisdiction and those as to
which it had declined to do so. Employees and
patients of nursing homes and related facilities doing
$100,000 of business annually are brought within the
effective coverage of the Act; those in health clinics
and other health care institutions doing more than
$100,000 but less than $250,000 annually"are not
covered and do not receive the benefits flowing from
such coverage.
This action is taken without the Board's having
undertaken, so, far as I am aware, any study or survey
of the industry in an attempt to ascertain what
portion of the industry will be effectively exempted
from the coverage of provisions designed to eliminate
recognitional strikes and other work stoppages with
their potentially catastrophic impact on -patient
care.24 There is no demonstration of why,or how a
medical clinic, a center for the treatment of emotion-
ally disturbed children, an abortion clinic, a halfway
house treating psychiatric patients, a hospital, and
21 See , e.g., remarks of Representative Ashbrook, 120 Cong. Rec. H4538
(daily ed. May 30, 1974); remarks of Senator Williams, 120 Cong. Rec.
S12103 (daily ed. July 10, 1974); remarks of Senator Cranston, 120 Cong.
Rec. S6932 (daily ed. May 2, 1974).
22 Remarks of Senator Taft, 120 Cong. Rec. 512,108 (daily ed. July 10,
1974).
zs Ibid.
z4 See for example, University Nursing Home, Inc., 168 NLRB 263, 264
( 1967); Floridan Hotel of Tampa, Inc., 124 NLRB 261 (1959).
25 Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177, 197 (1941);
N .LRB. v. Metropolitan Life Insurance Company, 380 U S. 438, 443 (1965).
26 In one of its earliest decisions expanding its jurisdiction as a result of
the like, with less than $250,000 annual gross
revenues has any less impact on commerce than a
nursing home, a home for the aged, or a visiting
nurses association. Although I recognize that Con-
gress did not attempt to legislate any hard-and-fast
jurisdictional standard for the Board to ,apply, it is
apparent that it was well aware of the- standards the
Board had been applying and that it had determined
that application of the provisions of the Act to those
operations brought within its coverage by reason of
those standards had proved beneficial in eliminating
labor unrest and disruptions in patient care. Given
the explicit expansion of the coverage of the Act to
embrace the entire health care industry and the
accompanying enactment of special substantive
provisions for that industry, the Board is under a
particular obligation to "disclose the basis of its
order" limiting such coverage and to "give clear
indication that, [in doing so,] it has exercised the
discretion with which Congress has empowered it." 25
In my judgment, my colleagues' opinion fails to
measure up to that test.26
Finally, my colleagues' action will invite litigation
on the issue of whether a particular health care
institution is or is not subject to the standard for
"nursing homes and related facilities." This is a
wholly unnecessary exercise and contributes only to
the waste of Board funds and energies. Administra-
tively, it leads to uncertainty and lack of clarity as to
the Board's ultimate course of action in a particular
case . Substantively, it defeats the obvious purpose of
Congress to bring the entire health care industry
under the coverage of the Act. Where sound
administrative practice of limiting the number of
jurisdictional standards so clearly furthers the obvi-
ous congressional, purpose in enacting the health care
amendments, I would apply the $100,000 annual
gross revenue standard to all healtli care institutions
except hospitals.
the enactment of the health care amendments, the Board stated, "In our
opinion an examination of this legislation and its legislative history shows
that the purpose of the 1974 health care amendment was to extend the
jurisdiction of the Board to all health care institutions , as defined in Section
2(14) of the Act, which have a substantial impact on commerce although
they may be local in character." (Emphasis supplied .) Bio-Medical Applica-
tions of San Diego, Inc., 216 NLRB No. 115 ( 1975). My colleagues have
failed to demonstrate why nursing homes and related facilities with
$100,000 gross revenues exert a substantial impact on commerce , but other
health care institutions do not exert a substantial impact on commerce
unless they have at least $250,000 gross revenues annually.