Bio-Medical Applications of San Diego, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1975

216 N.L.R.B. 631 (N.L.R.B. 1975)

BIO-MEDICAL APPLICATIONS OF SAN DIEGO, INC.
Blo-Medical Applications of San Diego, Inc. and
Service Employees International Union Local 102,
AFL-CIO, Petitioner. Case 21-RC-13979
February 19, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Steven J.
Sorensen. 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, and by direction of
the Regional Director for Region 21, this case was
transferred to the National Labor Relations Board
for decision. Both the Employer and the Petitioner
filed briefs.
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, including the
briefs filed herein, the Board finds:
1. The Employer, Bio-Medical Applications of
San Diego, Inc., doing business in San Diego,
California, is a corporation organized under the laws
of the State of Delaware and is engaged in operating
a for-profit community hemodialysis unit providing
life maintenance hemodialysis treatments to outpa-
tients referred by urologists. The Employer contends
that the Board should not assert jurisdiction over its
operations on the basis that its medical services are
essentially local in character.
In legal support of its contention, the Employer
refers to the recent Board decisions in Alameda
Medical Group, Inc., 195 NLRB 312 (1972), and Drs.
A. O. Allenius & R. F. Leedy, Jr. Inc., d/b/a Cleveland
Avenue Medical Center, 209 NLRB 537 (1974),
wherein the Board declined to assert jurisdiction over
similarly specialized clinics dealing primarily with
local patients. For the reasons stated below, we find
that these cases are no longer controlling.'
The petition in the instant case was filed on
October 10, 1974. Effective August 25, 1974, the
i Member Fanning, who, with Member Penello, dissented in Cleveland
Avenue Medical Center, supra, would assert jurisdiction here in any event.
2 Public Law 93-360, July 26, 1974.
s See Charles Circle Clinic, Inc., 215 NLRB No. 84 (1974).
216 NLRB No. 115
631
National Labor Relations Act was amended by
adding a new Section 2(14) which enlarged the
Board's jurisdiction in the health care field to
include 2
any hospital, convalescent hospital, health main-
tenance organization, health clinic, nursing home,
extended care facility, or other institution devoted
to the care of sick, infirm, or aged person.
[Emphasis supplied.]
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 institu-
tions, as defined in Section 2(14) of the Act, which
have a substantial impact on commerce although
they may be local in character.3
The record shows that the Employer in the last
complete fiscal year, calendar year 1973, received
annual gross revenue of approximately $587,748. Of
this amount $215,000 of the total gross revenue was
in the form of Med-cal payments .4 Another $233,000
of the annual gross revenue received was in the form
of Medicare reimbursements. The remaining annual
gross revenue was derived directly from the patients
themselves, from hospitals in which the Employer
provided hemodialysis treatments, or from private
insurance companies. Of the 45 patients treated, 30
resided in either San Diego County or nearby
Imperial County, and were treated on a regular basis,
and 15 patients were visitors or transients normally
treated elsewhere. The majority of the 15 patients so
treated resided outside the State of California.
During 1973, the Employer purchased supplies,
including drugs and medication, from companies
located outside the State of California amounting to
approximately $100,000. Additionally, during the
1973 accounting period, the Employer purchased
approximately $18,000 in capital equipment used for
patient care from distributors located outside the
State of California, and had service contracts of
approximately $440 with equipment companies
whose headquarters are outside the State.
As the Employer's annual gross income exceeds
any discretionary standard we might apply, and as it
has a substantial inflow of materials from outside the
State of California, we find that the impact of the
Employer's operations on commerce is sufficient to
warrant assertion of jurisdiction herein and that it
will effectuate the policies of the Act to do so.5
2. The labor organization involved claims to
represent certain employees of the Employer.
4 This California medical program is funded by the Department of
Health Care Services of the State of California under subchapter 19 of the
Social Secunty Act, which is partly funded by Federal moneys.
S Thus , the Employer's gross income substantially exceeds those dollar
(Continued)
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated that the following is the
appropriate unit:
All dialysis technicians, dialysis technologists,
dialysis aides, and dialysis technician trainees
volume jurisdictional standards applied to hospitals (Butte Medical
Properties, d/b/a Medical Center Hospital, 168 NLRB 266(1967)); visiting
nurses associations (Visiting Nurse Association, Inc., 188 NLRB 155 (1971));
and retail enterprises (Carolina Supplies and Cement Co., 122 NLRB 88
employed by the Employer at its clinic located at
3960 Third Avenue, San Diego, California,
excluding all other employees, including profes-
sional employees, office clerical employees,
guards and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
(1958)). We do not , however, decide at this time specifically what dollar
volume standard will be applicable to facilities such as this.