Kew Gardens Nursing Home Co., Inc.

National Labor Relations Board - Board DecisionsNov 29, 1971

194 N.L.R.B. 370 (N.L.R.B. 1971)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kew Gardens Nursing Home Company, Inc. and Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees Union, SEIU, AFL-CIO. Case AO-138 November 29, 1971 ADVISORY OPINION BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY The petition herein was filed on October 14, 1971, by Kew Gardens Nursing Home Company, Inc., herein called the Employer, pursuant to Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. In pertinent part, the petition alleges: 1. There is pending before the New York State Labor Relations Board, herein called the State Board, a petition for investigation and certification of representatives, Case SE-45077, filed by Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees Union, SEIU, AFL-CIO, herein called the Union, seeking to be certified as the collective- bargaining representative of the service and mainte- nance employees employed by the Employer at its nursing home premises located at 164-11 Chapin Parkway, Jamaica, New York. In this representation proceeding, the Employer is challenging the State Board's jurisdiction. 2. The Employer, a not-for-profit New York corporation, is engaged in the operation of a nonpro- fit 125-bed nursing home, at 164-11 Chapin Parkway, Jamaica, New York. It commenced operations on August 24, 1971, and at the time the petition herein was filed had 30 patients or an occupancy of 25 percent. On the basis of 25 percent occupancy, the Employer's gross annual income would be around $500,000. On the basis of the 90-percent occupancy rate anticipated by the Employer in the near future, the Employer's gross income would be $1,950,000. 3. The State Board has made no findings with respect to the aforesaid commerce data. 4. There is no representation or unfair labor practice proceeding involving the same labor dispute pending before the Board. 5. Although served with a copy of the petition, no response as provided in the Board's Rules and Regulations has been filed by any of the parties. On the basis of the above, the Board is of the opinion that: 1. The Employer, a not-for-profit New York corporation, operates a nonprofit nursing home in Jamaica, New York. 2. The Board's current standard for the assertion of jurisdiction over nursing homes, within its statutory jurisdiction, is a gross annual revenue of at least $100,000.1 As indicated above, the Employer's pro- jected gross annual revenue, based on 25 percent, or anticipated 90-percent occupancy would be well in excess of $100,000 and, therefore, could satisfy the dollar-volume test of the Board's standard for assertion of jurisdiction over nursing homes. The petition does not allege specific interstate commerce data, such as direct or indirect out-of-state inflow or outflow of goods or services, so as to establish the Board's statutory jurisdiction. However, because of the magnitude of the Employer's operations, it is reasonable to assume, only for purposes of the Advisory Opinion, that the Employer, in fact, would have out-of-state inflow or outflow sufficient to bring its operations within the Board's statutory jurisdic- tion. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that on the allegations and assumption herein, the Board would assert jurisdiction over the Employer's operations with respect to disputes cog- nizable under Sections 8, 9, and 10 of the Act. 1 University Nursing Home, Inc 168 NLRB 263; Drexel Home, Inc, 182 NLRB 1045.