Waimea Dispensary, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1337 (N.L.R.B. 1975)

WAIMEA DISPENSARY, INC. 1337
Waimea Dispensary , Inc., Employer-Petitioner and
Hospital Workers Union, UPW, AFSCME, Local
646, AFL-CIO. Case 37-RM-92
June 30, 1975
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING 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 Morton H.
Orenstein. Following the hearing, and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director for Region 37 transferred this case to the
Board for decision. The Employer-Petitioner filed a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They,are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. Waimea Dispensary, Inc., hereinafter referred
to as the Employer, is a nonprofit Hawaii corpora-
tion which operates three outpatient medical clinics
on the island of Kauai. The Employer was organized
to provide outpatient clinic services for the employ-
ees of four sugar companies working on plantations.
The four sugar companies, McBryde Sugar Compa-
ny, Kekaha Sugar Company, Gay & Robinson, and
Olokele, own all of the stock in the Employer and
organized it pursuant to a collective-bargaining
agreement between the companies and the Interna-
tional LWU Local 142, which represents the employ-
ees'of the sugar companies.'
One of the Employer's three locations is the
Waimea Dispensary which is located in Waimea and
services the Kekaha, Gay & Robinson, and Olokele
sugar plantations. A second location is the Eleele
Dispensary Branch of the Waimea Dispensary also
located in Waimea, which services the employees of
the McBryde Company, as well as some private
i Three of the sugar companies are subsidiaries of larger companies.
McBryde is owned by Alexander & Baldwin Co ., Olokele is owned by C
Brewer , and Kekaha is owned by Amfac . Gay & Robinson is an
independent sugar operation . All of the sugar companies are members of
the C & H Sugar Cooperative All of their products are processed into raw
sugar in Hawaii and shipped to California for final processing. The parties
stipulated that , excepting Gay & Robinson, the three sugar companies in the
218 NLRB No. 204
patients. A third location is in Koloa and it also
services the employees from the McBryde plantation,
and some private patients. All three facilities include
a receiving area, drug dispensary room, emergency
room, doctors' offices, and examining rooms. There
are no beds in the dispensaries.
Of the eight members on the Employer's board of
trustees, four are officers and landholders in some of
the sugar plantations, two are doctors who work in
the Waimea Clinic which also operates in the
dispensaries, and the remaining two members are not
associated with the sugar companies or the Clinic.
The board of trustees holds its regular meetings in
either the Olokele or Kekaha Sugar manager's
offices.
Also located at these same three locations is the
Waimea Clinic, a separately incorporated organiza-
tion which consists of the doctors that service the
patients at the Waimea Dispensary. The Clinic is a
professional corporation of service doctor members
who are its sole stockholders, employees, and board
of directors. The doctors in the Clinic have no
separate practices of their own. Once a year the four
sugar companies negotiate a fee for the doctors'
services at the dispensaries. The negotiated fee is a
lump sum payment to the Clinic. The doctors work a
normal .40-hour workweek.
The Waimea Clinic has no headquarters of its own.
All doctors, facilities, and administrative work are
located within the walls of the Employer. The clinic
pays $188,535 yearly for the utilization of the
dispensary premises for its private patients. Such
patients have access to all of the dispensary services.
When a patient visits the dispensary he is furnished
a charge ticket listing the $3.75 visit fee as well as any
other services. At the end of the patient's visit, the
charge ticket is prepared for presentation to the
appropriate plantation or sugar company for pay
ment. The plantations are billed on a monthly basis.
As a result of administrative and clerical delays, the
plantations do not pay the Employer until the 15th or
20th of the month. Such delay causes a serious cash
deficit for the Employer and has resulted in certain
drug companies refusing new shipments until the
Employer becomes current on its debts. Because of
this cash flow problem, the Employer has had to
make arrangements with the sugar companies to pay
an approximate billing at the beginning of the month
which is approximately two-thirds of the average
monthly billing. The sugar companies pay the
past fiscal year had shipped or delivered raw sugar products in excess of
$50,000 to points located outside the State of Hawaii for processing; and
that the annual gross volume of business of these three sugar plantations
derived from the processing and sale of sugar in interstate commerce
exceeds $500,000.
During the past calendar year Gay & Robinson made in excess of
$50,000 through its sales of sugar to C & H Sugar Cooperative
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difference when the true billing is received. Bixler,
the Employer's general manager, testified that such
practice is important to the Employer's survival.
Also, the Employer is in arrears approximately
$35,000 in payments which should be rebated to the
respective sugar companies for their employee-pa-
tients who are covered by the Medicare program.
This arrangement, with the approval of the sugar
companies, is another method which enables the
Employer to have enough cash flow to run the
business and pay bills.
Waimea Dispensary purchased goods directly from
suppliers located outside the State of Hawaii valued
in excess of $50,000 and had total gross receipts of
approximately $469,615. The Dispensary also re-
ceived $124,979 which it received as Medicare and
other reimbursements for the sugar companies.
The Employer-Petitioner contends that at the time
Congress passed and the President signed Public
Law 93-360, which amended Section 2(2) of the
National Labor Relations Act so as to bring all
privately owned, nonprofit health care facilities
engaged in interstate commerce within the jurisdic-
tion of the Act, the National Labor Relations Board
had already asserted jurisdiction over for-profit
hospitals and medical clinics, and that it would seem
consistent with congressional intent to apply the
Board's existing jurisdictional standards for profit-
making hospitals and medical clinics to the present
case.
We find merit in the Employer-Petitioner's conten-
tion. The Board recently established minimum
monetary jurisdictional standards for health care
institutions as defined in Section 2(14) of the Act.2
As stated above, Waimea Dispensary is a nonprofit
corporation which operates three outpatient medical
2 East Oakland Community Health Alliance, Inc., 218 NLRB 1270
(1975) The Board announced that it would retain the $100,000 discretion-
ary jurisdictional standards which it had previously applied to such health
care institutions as nursing homes, visiting nurses associations, and related
facilities , and the $250 ,000 standard for hospitals of any type Additionally,
the Board announced that it would limit the exercise of its jurisdiction to
those cases involving all other types of health care institutions as defined in
Sec 2( 14) of the Act where the employer involved receives at least $250,000
in gross revenues annually Though it matters not which standard is applied
in this case , Member Fanning notes his disagreement with his colleagues'
clinics on the island of Kauai. Clearly, in view of the
above, Waimea Dispensary is a health care institu-
tion within the meaning of Section 2(14) of the Act.
Accordingly, as Waimea Dispensary has purchased
goods directly from suppliers located outside the
State of Hawaii valued in excess of $50,000 and has
total gross receipts of approximately $469,615, we
find that Waimea Dispensary has gross annual
revenues in excess of $250,000 and, therefore, it is
engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert j unsdiction herein.
2. Hospital Workers Union, UPW, AFSCME,
Local 646, AFL-CIO, is a labor organization
claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
The parties agree and we find that the following
employees of the Employer constitute an appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All licensed practical nurses, X-ray technician,
laboratory technicians, drug room clerks, insur-
ance claims clerk, clerk receptionist, EDP and
accounting clerk, Medicaid claims clerk, janitress-
es, gardener, and general repairman, excluding all
other employees employed by the Employer at its
place of business at Honolulu, Hawaii.3
[Direction of Election and Excelsior footnote
omitted from publication.]
refusal to extend the $100,000 standard for nursing homes and related
facilities to all health care facilities other than hospitals.
3 The parties stipulated that the accounting clerk is a confidential
employee
The parties also stipulated that the general manager , the administrative
assistants at Waimea, Eleele, and Koloa, chief accountant , and assistant
supervisor are supervisors and should be excluded.
The parties also stipulated that the registered nurse is a professional
employee and should be excluded.