Charles Circle Clinic, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1974

215 N.L.R.B. 382 (N.L.R.B. 1974)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Circle Clinic , Inc. and District 1199 Massa-
chusetts National Union of Hospital & Health Care
Employees , RWDSU, AFL-CIO, Petitioner. Cases
1-RC-13244 and 1-RC-13245
December 6, 1974
DECISION AND DIRECTION OF ELECTIONS
BY MEMBERS FANNING, JENKINS, 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 Francis X. McDon-
ough. Following the hearing, and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Proce-
dure, Series 8, as amended, and by direction of the
Regional Director for Region 1, this case was
transferred to the National Labor Relations Board
for decision. The Employer filed a brief.
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:
1. The Employer is a Massachusetts corporation en-
gaged in providing abortion and gynecological care ser-
vices on an outpatient basis in Boston, Massachusetts.
The Employer contends that, because the nature of its
medical services are primarily local in character, the
Board should not assert jurisdiction over its operations.
In support of its position, the Employer cites the case
of Cleveland Avenue Medical Center, 209 NLRB 537
(1974), wherein the Board declined to assert jurisdic-
tion over a medical clinic primarily local in character.
Although the hearings herein were directed toward ju-
risdictional standards and policies then in effect, effec-
tive August 25, 1974, the National Labor Relations Act
was amended by adding a new Section 2(14) which
enlarged the Board's jurisdiction in the health care field
and defines a "health care institution" to include'
any hopsital, convalescent hospital, health mainte-
nance organization , Jealth clinic, nursing home,
extended care facility, or other institution devoted
to the care of sick, infirm, or aged person.
An examination of this legislation and its legislative
history shows clearly that Congress intended that the
National Labor Relations Act and its underlying poli-
i Public Law 93-360, July 26, 1974
cies by extended to medical care facilities whose activi-
ties, although they may be local in character, have a
substantial impact on commerce.
Turning to the facts in the instant case, the record
shows that the Employer commenced operations on
August 15, 1973. From that date through April 30,
1974, the clinic treated approximately 3,066 patients
deriving a gross income of $473,070. Projecting this
gross figure over a 12-month period shows that the
Employer would gross approximately $668,000. The
record also shows that approximately 90 percent of the
clinic's patients are residents of the State of Massa-
chusetts. In addition, approximately 90 percent of the
fees received are derived directly from the patients
themselves and do not come from either private em-
ployers engaged in interstate commerce or Federal or
state governments. The remaining 10 percent of fees for
services rendered came from the Massachusetts Medi-
caid program, from out-of-state medicaid programs,
and from CHAMPUS (Federal military insurance)
programs.
At the same time, the record shows that the Em-
ployer purchases on a monthly basis from local medical
supply houses supplies in an average amount of $4,000,
half of which is estimated to have originated outside the
Commonwealth of Massachusetts. In addition to the
foregoing the employer pays approximately $525 a
month to various firms in New York City for account-
ing services, legal fees, and malpractice insurance
premiums, $461 a month to a New York leasing firm
for furniture, and approximately $301 a month to Mas-
sachusetts firms for utilities. Extended over a 12-month
period, these expenditures total approximately $40,000
a year. As the Employer's annual gross income exceeds
any discretionary standard we might apply, we find
that the impact of the Employer's operations on com-
merce is sufficient to warrant assertion of jurisdiction
herein and it will effectuate the purposes of the Act to
do so.2
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act.
4. As to the appropriate unit, although there were
two separate petitions filed, one for a professional unit
of registered nurses and the other for a nonprofessional
2 Thus, the Employer's gross income substantially exceeds those dollar
volume jurisdictional standards applied to hospitals (Butte Medical Proper-
ties, d/b/a Medical Center Hospital, 168 NLRB 266 (1967 )), nursing homes
(University Nursing Home, Inc, 168 NLRB 263 (1967)), visiting nurses
associations ( Visiting Nurse Association, Inc., 188 NLRB 155 (1971)), and
retail enterprises (Carolina Supplies and Cement Co, 122 NLRB 88 (1958)),
and we do not decide at this time specifically what dollar volume standard
will be applicable to facilities such as is involved herein
215 NLRB No. 84
CHARLES CIRCLE CLINIC, INC. 383
unit , at the hearing the parties stipulated to a
Sonotono-type3 election in which either the petitioned-
for units or a merged unit would be appropriate. Ac-
cordingly, we find the following voting groups to con-
stitute appropriate units within the meaning of Section
9(b) of the Act.
Group A: All regular full-time and part-time regis-
tered nurses, excluding physicians, supervisors,
and all other employees.
Group B: All regular full-time and part-time
counselors, telephone counselors, nursing aides,
laboratory technicians, and administrative clerks,
excluding managerial employees, confidential em-
ployees, professional employees, supervisors and
guards as defined in the Act."
Although the unit composition was stipulated to, the
Employer contends that Nancy Talbot and Linda
Griebsch are supervisors and should be excluded from
group B. The Petitioner contends that neither of these
employees is a supervisor and both should be included
in group B. The record shows that Nancy Talbot is the
coordinator of the evening clinic. As coordinator her
function basically is to oversee the operation of the
clinic during those hours that it is open in the evening.
Talbot testified in general that the evening clinic oper-
ated in a routine fashion with little or no need for any
supervison or direction because each of the employees
working at the evening clinic knew what all the jobs
were and how to carry out all of the functions related
to the evening clinic. Initially, the clinic was open one
night a week, and in December 1973 or January 1974
the clinic's hours were extended to a second evening, at
or about which time Talbot was appointed coordinator.
As of the date of the hearings, a third open evening has
been scheduled on a trial basis. During the first weeks
that the evening clinic operated on a one-evening-a-
week basis, Clinic Administrator Burres was present
every night. Talbot was appointed to alleviate the
necessity of Burres' being present, and either at the
time of her appointment or shortly thereafter, Talbot
was given a raise reflecting her duties as coordinator.
As coordinator, Talbot spends those afternoons that
the evening clinic is open working on things that need
to be done for the evening clinic and then she continues
on into the evening performing counseling service
along with the other counselors. As coordinator, Tal-
bot also had regularly scheduled weekly meetings with
Burres whereat items such as the operation of the even-
ing clinic, the employees' views of the doctors on duty,
the scope of the treatment of clients, and the number
3 Sonotone Corporation, 90 NLRB 1236 (1950)
4 At the hearing, it was represented that the Employer had no office
clerical employees in its employ Accordingly, this category of employee,
in the absence of any evidence, is neither included nor excluded at this time
of patients that could be handled on a given night were
discussed. Talbot also discussed with Burres one em-
ployee who was having trouble doing her job, and as a
result of this discussion the employee's job was
changed, and on another occasion, Talbot and Burres
discussed ways of making the clinic run in a more
economical manner. Talbot also testified that if a sched-
uling problem arose she would be the person most
likely to be consulted as to how to handle it and that
she was responsible to see that the evening clinic was
adequately staffed. From the above, it is clear that
Talbot has had substantial involvement in the opera-
tion and expansion of the evening clinic and that in her
capacity as coordinator she controls and responsibly
directs the operations of the evening clinic. In these
circumstances, we find that Talbot is a supervisor
within the meaning of the Act and we shall exclude her
from group B.
As to Linda Griebsch the record shows that she has
the title of telephone coordinator. As coordinator,
Griebsch has the responsibility to see that the necessary
employees are scheduled to work the hours the clinic
is open; to train new employees hired for telephone
work; and to evaluate prospective employees' job ap-
plications, interview applicants, and discuss the qualifi-
cations of the applicants with the administrator and in
conjunction with-the administrator decide which appli-
cant should be hired. In addition, the record shows that
management officials refer problems arising from the
telephone employees to Griebsch for handling and cor-
rection. From the above, it is clear that Griebsch plays
an effective part in the hiring of personnel' and has
direct responsibility over the daily activities of the six
telephone employees. In these circumstances, we find
that Griebsch is a supervisor within the meaning of the
Act and shall, accordingly, exclude her from group
B.5
In accordance with the above findings and the record
as a whole, we find that a unit of all regular and part-
time registered nurses, full-time and part-time counse-
lors, telephone counselors, nursing aides, laboratory
technicians, and administrative clerks, but excluding
physicians, managerial employees, confidential em-
ployees, and supervisors and guards as defined in the
Act, may constitute a unit appropriate for the purposes
5 The status of three other employees was put in issue at the hearing One,
nurse-anaesthetist Elaine Ward, was alleged to be a supervisor As the
limited testimony as to her duties reveals nothing that would establish any
supervisory status, we find her to be an employee and included her in voting
group A Another, nurse-anaesthetist William Adamski, was questioned on
the basis of being an irregular part-time employee . The only facts presented
as to this individual are in the Employer's brief to the effect that he worked
on 4 different days between April 3 and May 11, 1974. As there is insuffi-
cient evidence to establish the regularity of his work he will be allowed to
vote subject to challenge if he is still employed by the clinic The third
employee, a nurse who substituted for the director of nursing when the
director was on vacation , is, we are advised , no longer in the employ of the
clinic and, accordingly, her status is a moot issue
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining within the meaning of Section
9(b) of the Act. However, this unit includes profes-
sional and nonprofessional employees, which the Board
cannot join in a single unit without the desires of the
professional employees being determined in a separate
vote. Accordingly, we shall direct separate elections in
voting groups A and B. The employees in group A will
be asked two questions on their ballot:
1. Do you desire to be included in the same unit
as other employees employed by the Employer at
its Charles Circle Clinic for the purposes of collec-
tive bargaining?
2. Do you desire to be represented for the pur-
poses of collective bargaining by District 1199
Massachusetts National Union of Hospital &
Health Care Employees , RWDSU , AFL-CIO?
It a majority of the professional employees in voting
group A vote yes to the first question, indicating their
desire to be included in a unit with the nonprofessional
employees, they will be so included. Their votes on the
second question will then be counted with the votes of
the nonprofessional employees voting in group B to
decide the representative for the entire combined bar-
gaining unit (professionals and nonprofessionals). If,
on the other hand, a majority of the professional em-
ployees in voting group A do not vote for inclusion,
they will not be included with the nonprofessional em-
ployees and their votes on the second question will then
be separately counted to decide whether or not they
wish to be represented by the Petitioner in a separate
professional unit.
Our ultimate determination is based in part on the
results of the elections. However, we make the follow-
ing findings in regard to the appropriate unit:
1. If a majority of the professional employees vote for
inclusion in a unit with the nonprofessional employees,
we find that the following employees will constitute a
unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All regular and part-time registered nurses, full-
time and part-time counselors, telephone counsel-
ors, nursing aides, laboratory technicians, and ad-
ministrative clerks at the Employer's Charles
Circle Clinic, but excluding physicians,
managerial employees, confidential employees,
and guards and supervisors as defined in the Act.
2. If a majority of the professional employees do not
vote for inclusion in the unit with nonprofessional em-
ployees, we find the following two units to be appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
Unit A: All regular full-time and part-time regis-
tered nurses, employed at the Employer's Charles
Circle Clinic, excluding physicians, supervisors,
and all other employees.
Unit B.- All regular full-time and part-time counse-
lors, telephone counselors, nursing aides, labora-
tory technicians, and administrative clerks, em-
ployed at the Employer's Charles Circle Clinic,
excluding managerial employees, confidential em-
ployees, professional employees, supervisors, and
guards as defined in the Act.
[Direction of Elections and Excelsior footnote omit-
ted from publication.]