Atwood Leasing Corp.

National Labor Relations Board - Board Decisions

Jan 28, 1977

227 N.L.R.B. 1668 (N.L.R.B. 1977)

1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atwood Leasing Corporation ; Augusta Leasing Corpo-
ration ; Barry Rudin, M.D.; Arthur Rudin, M.D.;
Stuart Meyers, M.D.; Eliza Gorelick , M.D.; Don-
ald Cole, M.D.; Richard Schuldenfreid, M.D.; T.C.
Failmezder, M.D.; A. Salcedo, M.D.; Allen Kaye,
M.D.; Arthur Sekuler, D.D.S.; Steven Siegel,
D.D.S.,1 and Local 143, Office , Service & Allied
Workers Union, AFL-CIO-CLC, Petitioner. Case
2-RC-17412
January 28, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Waldemar A. Comas
of the National Labor Relations Board. Following
the close of the hearing, and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Regional
Director for Region 2 transferred this proceeding to
the Board for decision. No briefs were filed by the
parties.2
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 proceeding, we find
that, for the reasons set forth below, none of the
employing entities involved herein is subject to the
Board's jurisdiction. Accordingly, we shall dismiss
the instant petition.
The employees sought by the Petitioner,3 with one
exception,4 perform various duties at a medical clinic
located at 714 Courtlandt Avenue, Bronx, New York,
herein called the premises. The relationship among
the various entities named as "employer" herein is as
follows.
Dr. Barry Rudin is the chairman of the board,
president, treasurer, and sole stockholder of Atwood
Leasing Corporation, herein called Atwood, Augusta
i At the hearing, the Hearing Officer granted the Petitioner 's motion to
delete Courtlandt Diagnostic Center, Inc, from the amended petition
2 However , on September 23, 1976, counsel for Drs Siegel and Sekuler
filed a letter with the Regional Director setting forth the reasons why the
amended petition should be dismissed as to them
7 The amended petition describes the unit as all medical assistants , dental
assistants , lab technicians, and X-ray technicians , excluding all other
employees , supervisors , and guards as defined in the Act
4 As explained more fully infra, the sole exception concerns the employee
in the classification of dental assistant
5 X-Ray Lab was not named as an employer in the amended petition
227 NLRB No. 247
Leasing Corporation, herein called Augusta, and
Medical Associates X-Ray Lab Incorporated, herein
called X-Ray Lab.5 Dr. Arthur Rudin, brother of
Barry Rudin, is the secretary of the three corpora-
tions.
In July 1975, Dr. Barry Rudin leased part of the
first floor of the premises from Courtlandt Diagnostic
Center. In December of that year, he assigned his
rights under the lease agreements to Augusta. Augus-
ta is engaged solely in the business of leasing this
space to Atwood. During the fiscal year of July 1975
through June 1976, the gross revenue of Augusta was
approximately $20,000, which consisted entirely of
payments received from Atwood for the exact
amount of the rent owed to Courtlandt Diagnostic
Center.
Atwood provides approximately 14 physicianss
who practice medicine at the premises on an outpa-
tient basis with space, equipment, supplies, adminis-
trative services (such as scheduling patients and
billing), and personnel. Thus, Atwood employs the
medical assistants, lab technicians, and X-ray techni-
cians sought herein, as well as a porter, bookkeeper,
receptionist, and X-ray clerk typist.7 In return for the
space and services provided, the physicians pay
Atwood an agreed-upon percentage of their gross
billing. Almost all of the physicians' fees are derived
from the New York City Medicaid and New York
State Medicare programs. Medicaid and Medicare
payments are made directly to the individual physi-
cian, not to Atwood.8 During the fiscal year referred
to above, the gross billing of all the doctors who
practiced medicine at the clinic was approximately
$251,000, of which approximately $90,000 was paid to
Atwood, representing its total gross revenue for the
year. During the same period, Atwood leased approx-
imately $7,200 worth of equipment from a company
located in Connecticut, and purchased about $2,400
worth of supplies from an intrastate supplier.
The physicians have no authority with respect to
the employees at Atwood, as control of that corpora-
tion's labor relations policies is vested solely in Dr.
Barry Rudin. Thus, Dr. Barry Rudin alone hires,
fires, and in every other respect sets the terms and
conditions of employment of Atwood's employees.
Dr. Barry Rudin also determines the number of hours
6 Included among the 14 are Drs . Barry Rudin, Arthur Rudin, Meyers,
Cole, Schuldenfreid, Failmezder , Salcedo, and Kaye, all of whom were
named in the amended petition Dr Gorelick, also named in the amended
petition , is no longer practicing medicine at the premises Not named in the
amended petition , but also practicing medicine at the clinic are Drs Ubram,
Ngo, Puig, Burnstem , Anonuevo, and Gomn
I The Petitioner would exclude the employees in the latter four classifica-
tions from the unit In view of our dismissal of the petition for lack of
jurisdiction , we find it unnecessary to pass on the parties' unit contentions
9 At the hearing, Dr. Barry Rudin testified that under New York law such
payments can only be made to a doctor or a professional corporation.
ATWOOD LEASING CORP. 1669
each of the physicians will work at the clinic, but
exercises no other control or supervision over them.
The third corporation involved herein, X-Ray Lab,
is engaged at the premises in providing X-ray and
related services to patients, and in billing for such
services . During the fiscal year referred to above, the
gross revenue of X-Ray Lab was approximately
$35,000.
The remaining persons named in the amended
petition, Drs. Siegel and Sekuler, have no financial or
legal relationship with Atwood, Augusta, X-Ray Lab,
or any of the other doctors named as employer. Drs.
Siegel and Sekuler have been in a partnership since
July 1975, and are engaged in the practice of
dentistry. They employ one employee, a dental
assistant , whom the Petitioner seeks to include in the
unit . The dental assistant works exclusively for the
partnership, and Drs. Siegel and Sekuler are the only
individuals with authority to set her terms and
conditions of employment. The partnership leases
space on the first floor of the premises directly from
Courtlandt Diagnostic Center for which it currently
pays a rental of $7,800 a year. The partnership shares
a common reception area with the various doctors
practicing at the clinic, but the partnership maintains
its own records, performs its own bookkeeping and
billing, and there is no interchange between the
dental assistant it employs and the employees of
Atwood.9 During the first year of its operations, the
partnership's gross revenue was approximately
$71,000, of which 90 percent represents payments
received from the New York City Medicaid program.
During the same period, the partnership purchased
supplies from within the State valued at $4,000.
Based on the foregoing and the record as a whole,10
we find that Dr. Barry Rudin, Atwood, Augusta, and
X-Ray Lab constitute a single employer, hereinafter
called the Employer. We further find that the
9 The porter employed by Atwood works for that corporation only on a
part-time basis , and, when not so engaged , performs cleaning services for
several neighborhood establishments , including the partnership.
10 At the hearing, counsel for Dr. Barry Rudin , Dr Arthur Rudin,
Atwood, Augusta, and X-Ray Lab "concede[d I ... for the record" that for
the purposes of jurisdiction he did not object "to having the Board treat
Atwood , Augusta , [and [ Medical Associates X-Ray Lab Incorporated as an
entity and called the Employer here."
ii The Southland Corporation, d/b/a Speedee 7-Eleven, 170 NLRB 1332,
1334 (1968)
12 In view of this finding, there is likewise no basis for concluding that a
joint employer relationship exists between the physicians and the partnership
of Drs . Siegel and Sekuler
Employer and the physicians practicing at the medi-
cal clinic are not joint employers of the petitioned-for
employees. For, "[w ]e have long held that the critical
factor in determining whether a joint employer
relationship exists is the control which one party
exercises over the labor relations policy of the
other." 11 It is evident from the facts set forth above
that the physicians neither exercise actual, nor
possess potential, control over the terms and condi-
tions of employment of any of the employees sought
herein.12 Accordingly, it would be inappropriate to
combine the gross revenues of the physicians and the
Employer for jurisdictional purposes.13 Similarly,
since Drs. Siegel and Sekuler exercise no control over
the labor relations policies of the Employer, the
partnership and the Employer are not joint employers
of the employees sought herein, and the gross
revenues of the two entities therefore cannot be
aggregated for jurisdictional purposes.
In view of the above, we find that the combined
gross revenue of the Employer is approximately
$145,000 per year, an amount insufficient to satisfy
the $250,000 jurisdictional standard established for
health care facilities other than nursing homes and
visiting nurse services.14 The dental partnership's
annual gross revenue of $71,000 also fails to satisfy
that standard. Accordingly, we find that none of the
employing entities involved herein has a sufficient
impact on commerce to warrant assertion of jurisdic-
tion, and that it will not effectuate the purposes of the
Act to do so. Therefore, we shall dismiss the instant
petition.
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.
13 See Booker Family Medical Care Center, 219 NLRB 220 (1975)
14 East Oakland Community Health Alliance , Inc, 218 NLRB 1270 (1975),
Booker Family Medical Care Center, supra
Even if the office management standard were deemed applicable because
of the Employer's leasing operations at the premises , that standard would not
be satisfied here . For, the record does not establish that the annual gross
revenue derived from the office building located at 714 Courtlandt Avenue,
Bronx , New York, amounts to $100,000, and that $25,000 of said annual
gross revenue is derived from organizations whose operations meet any of
the Board's jurisdictional standards, exclusive of indirect outflow and
indirect inflow . See, e g., Mistletoe Operating Company, 122 NLRB 1534
(1959).