Bob's Ambulance Service

National Labor Relations Board - Board Decisions

Jul 31, 1969

178 N.L.R.B. 1 (N.L.R.B. 1969)

BOB'S AMBULANCE SERVICE
Bob's Ambulance Service and Hospital &
Institutional Workers, Local 250, Service
Employees International Union, AFL-CIO,
Petitioner . Case 20-RC-8602
July 31, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon a petition duly filed on January 24, 1969,
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing was held before Hearing
Officer Gerald R. Lucey.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed. Briefs have been filed by the Petitioner
and the Employer.
Upon the entire record in this case, the Board
finds:
1. The Employer contends that its operations are
retail in nature and that jurisdiction should be
declined since its annual operations do not satisfy
the retail standard. In the alternative, the Employer
contends that even if the nonretail standard applies,
the revenues it derived from services performed for
hospitals cannot be included in calculating the
jurisdictional amount because the services are
intimately associated with the exempt functions of
the. hospitals.
The Employer operates an ambulance service in
and about the city of Oakland, California. During
1968, the Employer received over $235,000 gross
revenues from the following sources:
General Public $138,000
Kaiser Hospitals $ 90,000
Southern Pacific Hospitals $ 3,000
City of Oakland $ 4,000
The jurisdictional facts indicate that the Employer
does not meet the retail standard and, apart from
the $90,000 received from Kaiser, does not have
sufficient inflow or outflow to meet the Board's
nonretail standard.
The Employer's operations with respect to Kaiser
Hospitals consist of transporting patients to and
from two hospitals, Kaiser-Oakland and
Kaiser-Hayward. Although there is no formal
contract, Kaiser calls the Employer 90- 100 times per
week for ambulance services. The Employer bills
Kaiser weekly. Kaiser sends a check after
authorizing each call. When a patient is not covered
by Kaiser's health plan, Kaiser rejects the bill, and
the Employer bills the patient directly. This occurs
with respect to about 1 percent of the Kaiser
billings. Otherwise Kaiser apparently passes on the
costs of the ambulance service to its patients
through health insurance premiums.
The Employer argues at one point that, as
individuals are the ultimate users of its ambulance
services, the nonretail standard may not be applied
in determining the Board's jurisdiction. The Board
has held that where both retail and nonretail
operations are involved, either the retail or nonretail
standards may be applied.' In addition, the nonretail
standard has been applied where services were
provided directly to the consuming public and
where, as here, the cost of said services were paid
for by a commercial enterprise.2 Accordingly, as the
services in question are performed in response to
calls from Kaiser, which pays for the services in 99
percent of the cases as part of the benefits conferred
upon insured patients, we find that the services
performed at Kaiser's behest are nonretail.
Turning to the question of whether that standard
has been met in this case, the Board as a matter of
policy will regard as indirect outflow, in computing
jurisdictional amounts, the value of services
performed for organizations which are themselves
exempt from the Board's jurisdiction, so long as the
exempt organization is of the magnitude necessary
for the assertion of jurisdiction over comparable
nonexempt organizations.3 Each Kaiser Hospital
would constitute a comparable exempt organization
under this principle.4
However, the Employer takes the further position,
that even assuming that the nonretail standard is
met herein, jurisdiction should be declined as a
matter of policy. In this regard, the Board has
consistently held that the inclusion as indirect
outflow of services performed for an institution
exempted from the process of the Act is dependent
upon the relationship of the services performed to
the exempted functions of the institution.' The
Board has found that some services performed for
exempt hospitals were so intimately connected with
patient care purposes of the hospitals as to warrant
withholding jurisdiction.' It has reached the opposite
conclusion in other cases.' The operation involved in
' Man Products, Inc., 128 NLRB 546.
'Chicago Federation of Musicians, Local 10, 153 NLRB 68, 75-76;
Marty Levitt, 171 NLRB No. 94. See also Carroll-Naslund Disposal, Inc.,
152 NLRB 861, where services provided to the consuming public and billed
directly to the consumers were considered nonretail.
'Siemons Mailing Service . 122 NLRB 81, 85, in. 12.
'The parties stipulated that each Kaiser Hospital purchased over $50,000
worth of goods from outside the State . Although it is not clear from the
record, notice may be taken that the Kaiser Hospitals are nonprofit
hospitals. Kaiser Foundation Hospitals were found to be such in Southern
Permanente Services , Inc., 172 NLRB No. 148.
'For a diiscusslon ofthe rule, its purpose and-its application, see Herbert
Harvey. Inc.. 171 NLRB No. 36.
'Horn & Hardart Company, 154 NLRB 1368; Inter-County Blood
Banks , Inc.. 165 NLRB No. 38.
'Bay Ran Maintenance Corp., 161 NLRB 820; Southern Permanente
Services , Inc.. supra.
178 NLRB No. I I
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the present case is an ambulance service, one which,
though necessary to hospitals' operations, is for the
most part performed off the hospital's premises, and
performed for other entities and individuals as well.
As indicated, the Employer has no contract with the
Kaiser Hospitals. The record discloses it purchases
its own equipment, and hires, schedules, and
supervises its own employees. There is no evidence
or contention that the Kaiser Hospitals exercise any
control over these functions. Based upon an
examination of the operation involved here, we
conclude that the intimate relationship claimed to
exist in some of the foregoing cases does not exist in
the instant case, and they are therefore
distinguishable on their facts.
For the above reason we find that the services
performed for Kaiser are nonretail and the revenues
derived therefrom are includable in computing
indirect outflow. Accordingly, as these sums exceed
$50,000 annually we find that it would effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties agree that all seven full-time drivers
and stewards should be included and the one clerical
employee excluded from the unit, along with the
owner and his wife, the only supervisors. The
Employer, however, would exclude, and the
Petitioner would include, all part-time drivers and
stewards.
The part-time employees work principally on the
weekends performing substantially the same work as
the full-time drivers and stewards. There are two
24-hour shifts during the weekend, and the part-time
employees may work neither, either or both. If the
weekend shifts are not covered by the employees in
dispute, full-time drivers and stewards, or the owner
and his wife, must work during these periods. The
part-time employees work no fixed schedule of
weekends. Instead, they notify the Employer
anywhere from Monday to Wednesday whether or
not they want to work on the weekend. The
Employer has never advised any of them that work
was unavailable. In fact the Employer has often
made an effort to put them on if they called in as
late as Friday.
It is the Board's policy to include all regular
part-time employees, who perform substantially the
same work as full-time employees, in the unit of
full-time employees. Accordingly, we find the
following to be a unit appropriate for the purposes
of collective bargaining:
All full-time drivers and stewards, and all regular
part-time drivers and stewards, excluding all
clerical employees and supervisors as defined by
the Act.
There remains the question of which part-time
employees have worked with sufficient regularity to
possess a community of interest with included
full-time employees. The record indicates that both
Hernandez and Rodrigues have worked the majority
of weekends between the time they were hired and
the date of the hearing. Since their employment
history shows a continuity of employment at all
times material, we find that they are regular
part-time employees and are included in the unit. As
the record is inconclusive with respect to the three
remaining part-time employees, we shall permit
them to vote subject to challenge.
[Direction of Elections omitted from publication.]
'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 shall have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc.. 156 NLRB 1236; N.L.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 20 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.