Booker Family Medical Care Center

National Labor Relations Board - Board Decisions

Jul 17, 1975

219 N.L.R.B. 220 (N.L.R.B. 1975)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Booker Family Medical Care Center and Warehouse
and Mail Order Employees Union, Local No. 743,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,' Peti-
tioner. Case 13-RC-13338
July 17, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, 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 James A.
Miller. Following the hearing, and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, and by direction of the Region-
al Director for Region 13, this case was transferred to
the National Labor Relations Board for decision.
Thereafter a brief was filed by the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding 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, including the
brief filed herein, the Board finds that the Petitioner
seeks to represent certain employees of the Employ-
er. The Employer contends, inter alia, that each of
the entities involved are separate and distinct em-
ployers and, as such, are not subject to the Board's
jurisdiction. We agree with the Employer's conten-
tion.
The employing entities involved consist of a group
of four doctors engaged in the private practice of
medicine, a pharmacy, a laboratory, and an X-ray
department. Specifically, a breakdown of the entities
is as follows: Dr. Michael Mintz operates the dental
department, Dr. Bruce Carlson operates the podiatry
department, Dr. Corinne Solomon operates the op-
tometry department, and Dr. Zulikar Esmail practic-
es internal medicine, in addition to serving as the
founder and president of North Enterprises, Inc.
(herein called North), which is utilized as the leasing
organization for the various departments. There is, as
stated, the pharmacy, a laboratory, and an X-ray de-
partment?
1 The name of the Petitioner appears as amended at the hearing.
2 Both the laboratory and the X-ray departments were closed at the time
of the representation hearing. However, North was in the process of negoti-
ating leases for these departments.
In support of its contention that the Board should
not assert jurisdiction over its operations, the Em-
ployer places much reliance on the fact that each
entity operating within the Center operates as a sepa-
rate professional corporation and/or professional as-
sociation. The relevant record evidence establishes
that each entity does its own billing to the Illinois
Department of Public Aid (which accounts for ap-
proximately 99 percent of the billings) and each
maintains separate bank accounts. Each entity does
its own hiring and sets its personnel and labor poli-
cies . There is no intermingling of employees. The rec-
ord also reveals that the practitioners in the Center
do not initiate referrals to the other practitioners
therein. To a limited extent, patients inquire about
services and/or specialties of the practitioners in the
Center and it is only on that basis that a referral is
made. The single instance where there are common
directors and common managements is with North
(the property management entity) and Dr. Esmail's
medical practice. However, the record reveals that
once the leasing of the X-ray and laboratory depart-
ments has been completed North will merely be a
shell corporation with no employees and its sole
function will be that of collecting rents? This func-
tion, according to the evidence, will be carried out by
Dr. Esmail. With the exceptions of the podiatry and
optometry departments, each entity has its own
phone. However, there is a common phone for the
Center which is used as an intercom system for the
various departments. There is also a common liabili-
ty insurance policy which covers negligent acts which
might occur in the common areas of the Center, but
such coverage does not extend to malpractice claims
as the evidence indicates that each entity maintains
its own malpractice insurance. The common areas
within the Center are the hallways, waiting room,
and a reception area. While the general statement
can be made that each practitioner is engaged in the
practice of medicine, that statement is somewhat
qualified by bearing in mind that each practitioner is
engaged in a specialized practice unrelated to the
other practices at the Center, and that it is the Center
itself which provides a wide range of medical facili-
ties . Based on the foregoing, including the absence of
any common management and operations, and the
3 In this regard , Petitioner also urges that the office management standard
be applied to North since it is essentially an office management operation.
The evidence indicates that North will, at most , have only one employee,
excluding the janitors, whom the parties stipulated to exclude from any unit
found appropriate . We also take congizance of the fact that, although North
will derive more than $100,000 annual gross revenues , the other require-
ment is missing , i.e., that $25,000 of said annual gross revenues must be
derived from organizations whose operations satisfy any of the Board's ju-
risdictional standards . See, e .g., Mistletoe Operating Company, 122 NLRB
1534 (1959). Accordingly , we conclude and find that North's operations do
not satisfy the office management standard.
219 NLRB No. 70
BOOKER FAMILY MEDICAL CARE CENTER 221
separate control of labor relations of each entity, we
conclude and find that each entity operating within
the Center constitutes a separate and distinct em-
ployer and that it would be inappropriate to consider
their combined operations for jurisdictional purpos-
es. It is necessary, however, to consider the individu-
al operations of each of these employers in order to
determine which, if any, satisfy our jurisdictional
standards.
Turning to the facts regarding commerce , the rec-
ord shows that the first arrangement entered into by
North was for the sale of the dental department to
Dr. Michael Mintz, P.C., in February 1974. Dr.
Mintz' professional corporation purchased all of the
existing dental equipment and leased the dental de-
partment from North. Mintz' gross revenue is ap-
proximately $10,000 per month and he purchases
goods and services valued at approximately $700 per
month, the bulk of which comes from intrastate sup-
pliers.
The podiatry department has been operated by Dr.
Bruce Carlson, Ltd., as an individual entity, since the
Center opened in approximately July 1973. Carlson's
gross revenue is approximately $4,800 per month and
he purchases goods and services from within the
State valued at $600 per month.
The optometry department, operated by Dr. Co-
rinne Solomon, was leased to her in February 1974.
Dr. Solomon's gross revenue is approximately
$10,000 per month and she purchases virtually all of
her supplies from intrastate suppliers.
The record establishes that Booker Pharmacy, a
retail operation, derives annual gross revenues of ap-
proximately $300,000 per year.
An entity doing business as Grove Medical Labo-
ratory had, at the time of the representation hearing,
applied for a license from the State of Illinois to op-
erate the laboratory and, upon approval of the li-
cense , North expects to consummate the lease agree-
ment. Based on the past revenues of the laboratory,
its gross revenue was estimated to be $8,000 per
month.
The X-ray department which was previously oper-
ated by North was closed during the course of the
representation hearing due to financial reasons. The
record is silent on its projected annual gross revenue.
The only other department is the internal medicine
department which will be operated by Dr. Esmail's
professional corporation following the execution of
the X-ray and laboratory department leases. Howev-
er, the record reveals that the gross revenue of North,
which includes rental receipts from the other doctors
and the fees generated by Dr. Esmail's medical prac-
tice, is approximately $25,000 per month. Of that
amount, more than $6,000 per month is derived from
the rent receipts of the pharmacy and the dental de-
partment.
Based on the foregoing, and the entire record in-
cluding the brief, we find that, with one exception,
none of the operations involved satisfies the $250,000
jurisdictional standard we apply to such operations.4
The sole exception is the Booker Pharmacy which as
a retail enterprise fails to satisfy the monetary re-
quirements of our retail standard.' Accordingly, we
find that the impact of their operations on commerce
is not sufficient to warrant assertion of jurisdiction
herein and that it will not effectuate the purposes of
the Act to do so.6 Therefore, we shall dismiss the
petition.
ORDER
It is hereby ordered that the petition filed in Case
13-RC-13338 by Warehouse and Mail Order Em-
ployees Union, Local No. 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, be, and it hereby is, dismissed.
East Oakland Community Health Alliance , inc, 218 NLRB No 193
(1975)
5 Carolina Supplies and Cement Co, 122 NLRB 88 (1958)
61n view of this finding, we deem it unnecessary and we do not pass on
the adduional grounds urged by the employing entities as justification for
the dismissal of the petition