Cleveland Avenue Medical Center

National Labor Relations Board - Board Decisions

Mar 11, 1974

209 N.L.R.B. 537 (N.L.R.B. 1974)

CLEVELAND AVENUE MEDICAL CENTER
Drs. A . O. Allenius & R. F. Leedy, Jr. Inc., d/b/a
Cleveland Avenue Medical Center and Service,
Hospital , Nursing Home and Public Employees
Local Union No . 47, Service Employees Interna-
tional Union, AFL-CIO, Petitioner. Case
9-RC-10260
March 11 1974
DECISION ON REVIEW AND ORDER
On October 5, 1973, the Acting Regional Director
for Region 9 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
directed an election among a unit of all medical
assistants, X-ray technicians, medical secretaries,
receptionists, office clerical employees, and licensed
practical nurses employed by the Employer at its
Columbus, Ohio, facility, excluding all doctors,
registered nurses, professional employees, and super-
visors as defined in the Act. In his decision the
Acting Regional Director rejected the Employer's
contention that the Board should not assert jurisdic-
tion over its operation. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review of the
Acting Regional Director's decision asserting, inter
alia, that the Board's decision in Alameda Medical
Group, Inc., 195 NLRB 312, is here controlling and
therefore the assertion of jurisdiction herein departed
from Board precedent.
By telegraphic order dated October 30, 1973, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review. Thereafter, the Employer filed a supple-
mental brief.
The Board has considered the entire record in this
case with respect to the issues under review and
agrees with the Employer that the assertion of
jurisdiction is unwarranted herein.
The Employer is an Ohio corporation engaged in
the private practice of medicine in Columbus, Ohio.
Ten osteopaths perform medical services at the
Columbus location. In addition, there are approxi-
mately 20 employees working at the facility whom
Petitioner seeks to represent. Record testimony
discloses that approximately 99 percent of the
patients treated are residents of Columbus and
i Our dissenting colleagues point to the Employer 's substantial participa-
tion in Federal and State health care programs as a factor demonstrating a
"substantial effect on commerce " As their basis for assertion of jurisdiction
our colleagues cite Board decisions involving, inter alia, proprietary
hospitals, proprietary nursing homes, nonprofit nursing homes, and home-
health care agencies . The Board has long applied different standards for the
assertion of jurisdiction over various classes and categories of employers.
Here , the Employer's medical center is substantially different than a nursing
home or hospital, thus the standards for the aforementioned -type facilities
are not applicable Additionally, our colleagues rely on Quain and Ramrtad
537
adjacent areas. The Employer does not provide
overnight care for patients and when hospitalization
is necessary, patients are referred to a hospital.
The parties stipulated that the Employer's gross
income for calendar year 1972 was $706,468. Of that
total, $401,054 was received from the Ohio Depart-
ment of Public Welfare (53 percent of which was
from United States Department of Health, Educa-
tion, and Welfare), $15,871 from the Federal Medi-
care program, $90,570 from the Ohio Industrial
Commission, $2,426 from Franklin County, and the
remainder from private patients and various private
insurance programs. The Acting Regional Director
further found:
During the same period, the Employer pur-
chased drugs in the amount of $9,076 from
various sources. Insurance premiums payable to
Buckeye Union Insurance Company, a wholly-
owned division of Continental Insurance Co. of
New York, Connecticut General Insurance Com-
pany and Insurance Company of North America,
amounted to $8,762. Moreover, the Employer
leased equipment from Huntington Leasing Divi-
sion of U. S. Leasing Corp., an Ohio corporation,
for $10,750, purchased U. S. postage in the
amount of $1,320, medical supplies from local
concerns in the amount of $7,200 and had utility
bills totaling some $4,000. The Employer also
purchased x-ray film from a Cincinnati-based
subsidiary of Litton Industries amounting to
$6,539 and leased other sundry equipment from
3-M Products and Litton Industries for $2,073.
While it appears the Employer is engaged in the
performance of services which are not wholly
unrelated to commerce, we find, as in Alameda
Medical Group, Inc., supra, that the Employer's
medical practice is essentially local in character and
that the impact it has on commerce is not substantial
enough to warrant our assertion of jurisdiction
herein.'
Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed in Case
9-RC-10260 by Service, Hospital, Nursing Home
and Public Employees Local Union No. 47, Service
Clinic, 173 NLRB 1185, a case distinguishable from the subject case. In
Quain and Ramsta4 supra, the employer operated a clinic with gross
revenues almost five times that of the subject medical center and the
employee complement was four times greater than that here . Moreover, in
Quain and Ramrtad a suostantial part of the employer 's revenue came from
out-of-state patients , not so in the subject case where approximately 99
percent of tlfe patients are from the Columbus. Ohio, area. Thus, the Board
in Quain and Ramrtad found a "substantial effect on commerce ." Here the
impact is insubstantial and the Employer 's practice essentially local in
character
209 NLRB No. 60
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees International Union , AFL-CIO, be, and
it hereby is , dismissed.
CHAIRMAN MILLER, concurring separately:
I concur in the result, but would base my
conclusion on broader grounds than my colleagues. I
am not persuaded that the practice of medicine,
whether engaged in by one or by several physicians,
is a commercial enterprise over which we ought to
assert jurisdiction. Rather, it seems to me that the
practice of medicine, as such, is so local in character
that we ought to exercise our discretion and not
assert jurisdiction unless and until the Congress
indicates a clear intent to have us do so.
Nursing homes and hospitals have, in my view,
become industries whose operations have a substan-
tial impact on commerce. But a group of physicians
administering to the needs of primarily local patients
and purchasing, as here, only minimal quantities of
goods from out of State, is "essentially local in
character" if any business or profession any longer is.
Nor am I presuaded that, as the dissent here
argues, the advent of Medicaid and other Federal
assistance programs has transformed the private
practice of medicine into a commercial enterprise
having a substantial impact on interstate commerce.
Federal welfare programs have in recent decades
become very broad in scope, so that the underprivi-
leged are not denied access to at least minimally
required goods and services necessary to survival and
to the maintenance of health. But this does not mean
to me that every purveyor of goods and services who
delivers some of those goods or services to persons
who cannot themselves pay the full cost, and thus
may receive part of his payments through federally
funded assistance programs, automatically becomes
engaged in an industry which substantially affects
interstate commerce.
Accordingly, I would not assert jurisdiction here or
over any physician or group of physicians engaging
solely in the local practice of medicine.
MEMBERS FANNING and PENELLO, dissenting:
The majority finds that the impact of Employer's
medical practice is not sufficient to warrant the
Board's assertion of jurisdiction. We disagree.
Employer received during the calendar year 1972
gross income of $706,468. Of that, $401,054, was
received from the Ohio Department of Public
Welfare under the Medicaid program, $15,871 from
the Federal Medicare program, $90,570 from the
Ohio Industrial Commission, and $2,426 from
Franklin County. Of the $401,054, received from the
Medicaid program, 53 percent (or approximately
$212,558) were funds provided by the Federal
Government.
Thus, Employer participates substantially in Feder-
al and state health-care programs.2 The Board has
continuously pointed to participation in such pro-
grams by various health care institutions as a factor
demonstrating that institutions have a substantial
effect on commerce. Butte Medical Properties, d/b/a
Medical Center Hospital, 168 NLRB 266, 267
(proprietary hospitals);- University Nursing Home,
Inc., 168 NLRB 263, 264; Rosewood, Inc., 185 NLRB
193, 194 (proprietary nursing homes); Drexel Home,
Inc., 182 NLRB 1045, 1046; Bethany Home for the
Aged, 185 NLRB 191; The Swanholm, 186 NLRB 45
(nonprofit nursing homes), Quain and Ramstad, 173
NLRB 1185 (physicians clinic); Visiting Nurses
Association of Sacramento, 187 NLRB 731; Visiting
Nurse Association, Inc., 188 NLRB 155 (home-health
care agencies).3 Indeed, in some of these cases the
participation in these publicly funded programs
appears to have been the critical factor, or at least a
critical factor, in the Board's assertion of jurisdic-
tion.4 In still other cases the Board has rejected
claims of special status with the notation that the
institution has the same effect on publicly funded
medical programs as similar institutions.5
Despite the frequency with which the Board has
held that participation in publicly supported health
programs demonstrates that an institution has a
substantial effect on commerce, the majority holds
that Employer's effect is not substantial enough to
warrant our assertion of jurisdiction. They reach this
startling conclusion without any explanation; Query,
How does Employer's income from these public
sources demonstrate a less substantial impact than
that of other employers? It certainly cannot be the
amount of money involved. The sums are quite
substantial and actually more than received by other
employers over whom the Board has asserted
jurisdiction.6 It cannot be that a physicians clinic is
not a critical cog in our national health care
program. It quite clearly is. It cannot be that the
patients are virtually all from the local area. That has
also been true in a number of the cases involving
health care institutions where the Board has asserted
jurisdiction. Bethany Home for the Aged, supra;
Visiting Nurses Association of Sacramento, supra;
Visiting Nurses Association, supra; Drexel Home,
supra. In the absence of any other apparent explana-
2 It is this factor which distinguishes this case from Alameda, supra 4 Butte Medical Properties, supra; Drexel Home Inc, supra, Visiting
Although we have doubts as to the validity of the holding in that case we Nurses Association, supra.
need not resolve those doubts in the context of this case S Bethany Home for the Aged supra; Swanholm, supra; Rosewood, supra.
3 See also the National Lutheran Home for the Aged 203 NLRB No 71; 6 See, e.g, Visiting Nurses Association of Sacramento, supra.
Good Samaritan Hospital, 185 NLRB 198.
CLEVELAND AVENUE MEDICAL CENTER 539
tion we can only conclude that our colleagues have In our view, the record does not establish any
decided to treat Employer different from other reason why Employer should be treated differently
employers in the health care area on the basis of their than other institutions in the health care field. Since
visceral reaction that somehow a physicians clinic is it is clear that Employer has a substantial effect on
different.7 commerce, we would assert jurisdiction.
r Unlike Chairman Miller, we are unable to perceive how this Employer area with the same basic characteristics over which the Board has asserted
with its substantial participation in publicly supported health care programs jurisdiction . See, e g , Visiting Nurses Association of Sacramento, supra,
but with primarily local patients and primarily local purchasing has a less Bethany Home for the Aged, supra
substantial impact on commerce than other employers in the health care