Bethany Home for the Aged

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 191 (N.L.R.B. 1970)

BETHANY HOME FOR THE AGED
Bethany Home for the Aged and Service Employees'
International Union , Local No. 120, AFL-CIO,
Petitioner . Case 19-RC-4951
August 27, 1970
DECISION AND DIRECTION OF ELECTION
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
On October 24, 1968, Petitioner filed a petition
under Section 9(c) of the National Labor Relations
Act, as amended, seeking to represent certain of the
Employer's employees. Thereafter, the Regional
Director administratively dismissed the petition on
the ground that the Employer, a nonprofit corporation,
was not an employer within the meaning of Section
2(2) of the Act. The Regional Director's dismissal
of the petition subsequently was reversed on appeal
to the Board which reinstated the petition and directed
the Regional Director to issue a notice of hearing
thereon. Accords ly, a hearing was held before Hear-
ing Officer Eugi R. Nielson of the National Labor
Relations Board.
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, by direction of the Regional Director
for Region 19, the case was transferred to the Board
for decision. Briefs have been filed by the Employer
and Petitioner.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's rul-
ings 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. The Employer is a private, accredited, 212-
bed institution organized under the nonprofit corpo-
rate laws of the State of Washington. It is licensed
by the State and certified by the State Department
of Public Health as a Class 1 nursing home authorized
to render heavy nursing care services. It also is certified
under Medicare as an extended care facility. Its medi-
cal staff consists of two nonsalaried physicians who
are on 24-hour call and are paid by the Employer's
residents for services rendered. The 35-37 other physi-
' Petitioner's request for oral argument is hereby denied, as the record
and briefs adequately present the issues and positions of the parties
191
cians in the local area who may attend those residents
apparently are paid on the same basis. It services
aged and senile, but not retarded, residents, most
of whom are of the Lutheran faith, and all of whom
are drawn exclusively from within the State, primarily
from the Everett area. Its authorization to provide
those residents with heavy nursing care services
includes the rendering of intermediate and light nurs-
ing services, and the Employer accordingly offers
to nine different patient categories all types of nursing
services within this broad range. As of the time
of the hearing, 89 residents were receiving some type
of nursing care. According to the Employer, it "oper-
ates as a nonprofit hospital, except there is no facility
for major surgery."
In addition to the foregoing medical and nursing
services, the Employer also provides its residents with
a continous program of Bible studies, spiritual consel-
ing, and other religious services, These services are
conducted in accordance with the concepts of the
American Lutheran Church, with which the Employer
is affiliated but not controlled, under the direction
of the Employer's administrator and assistant adminis-
trator, both of whom are Lutheran ministers.
During 1968, the Employer expended $450,000 from
gross receipts of $502,000, exclusive of contributions
and gifts. Of this latter amount, $353,000 was derived
from patient fees, $124,000 from state welfare agencies,
and $25,000 in Medicare payments. During this same
period, the Employer purchased approximately
$10,500 worth of goods and supplies from local con-
cerns who, in turn, obtained those goods and supplies
from points directly outside the State or from compa-
nies located within the State but engaged in interstate
commerce.
While not disputing that its involvement in inter-
state commerce sufficiently establishes the Board's
statutory and discretionary jurisdiction, the Employer
argues that the Board should nevertheless decline
to assert jurisdiction over it because of the nonprofit,
primarily religious, character of its operation. More
specifically, the Employer contends that its operation
is unlike that of a nursing home in that its primary
purpose is to provide a church home for the spiritual
needs of the aged and, as a necessary but secondary
function, to "provide services to help [the aged] in
their bodily needs." Alternatively, the Employer
asserts that it "operates as a nonprofit hospital,"
thereby intimating that its operation is so closely
related to, or indistinguishable from, the operation
of statutorily exempted nonprofit hospitals that it
also should be afforded that exemption. We find
no merit in these contentions.
The principles involved herein already have been
determined by Drexel Home, Inc., 182 NLRB No.
185 NLRB No. 85
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
151, wherein jurisdiction was asserted over a nonprofit
extended care facility substantially similar to the
Employer's in operation and effect on commerce.
We noted in Drexel that we had asserted jurisdiction
over proprietary nursing homes and related facilities,'
and that if, in fact, an employer's operation places
it within the general classification of a nursing home
or a related facility, its characterization of itself as
something other than a nursing home does not remove
it from that general classification. We also adopted
the American Hospital Association's definition of an
extended care facility' in order to provide, for our
jurisdictional purposes, a clearer and more objective
characterization of health-care operations which fall
within the above-mentioned general classification but
which often are obscured by semantic differentiations.
We concluded that inasmuch as the operations of
nonprofit extended care facilities are analogous to,
and substantially affect commerce in much the same
manner as, similar proprietary health-care facilities,
an employer's nonprofit status is an irrelevant basis
on which to decline to assert jurisdiction since its
impact on commerce is neither influenced nor lessened
by its nonprofit status, its title, its religious affiliation,
or its occupants. Those factors do not provide a
proper ground for measuring the effect on commerce
engendered by such an institution.
Those principles are fully applicable herein and
compel us to conclude that the Employer's characteri-
zation of itself as something other than a nursing
home does not remove it from the category of facilities
over which jurisdiction was asserted in Drexel. Its
operation clearly falls within the ambit of a subacute
extended care facility as evidenced by the heavy,
intermediate, and light nursing care services which
it offers to nine different categories of patient-resi-
dents services which, as of the time of the hearing,
were being utilized by 42 percent of all residents.
Moreover, the substantial effect on commerce engen-
dered by its operation generally, and by its participa-
tion in the nationally oriented and publicly financed
Medicare program specifically, is neither influenced
nor lessened by its nonprofit status or its religious
affiliation.
Accordingly, we find, for all the reasons set forth
herein and in Drexel, and because the Employer
receives in excess of $100,000 in gross revenues per
annum, that it will effectuate the policies of the
Act to assert jurisdiction over the Employer's extended
care facility.
2. The labor organization involved claims to repre-
sent certain employees of the employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Employ-
er within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The parties have stipulated, and we find, that
the following employees of the Employer constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All licensed practical nurses, nurses' aides, food
service department employees, maintenance
department employees, housekeeping department
employees, and laundry depaent employees,
excluding the occupational th ist, office cleri-
cal employees, registered nurses, and all guards,
supervisors, and professional employees as
defined in the Act.
[Direction of Election4 omitted from publication.]
University Nursing Home, Inc, 168 NLRB No 53
"An establishment with permanent facilities that include inpatient
beds , and with medical services , including continuous nursing services,
to provide treatment to patients who require inpatient care but who
do not require hospital services "
° In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote , all parties to the election whould have access to a list of
voters and their addresses which may be used to communicate with
them Excelsior Underwear, Inc, 156 NLRB 1236, NL R B v Wyman-
Gordon Company , 394 U S 759 Accordingly, it is hereby directed that
an election eligibility list , containing the names and addresses of all
the eligible voters , must be filed by the Employer with the Regional
Director for Region 19 within 7 days of the date of this Decision
and Direction of Election The Regional Director shall make the list
available to all parties to the election No extension of time to file
this list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed