Clover Fork Medical Services, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1972

200 N.L.R.B. 291 (N.L.R.B. 1972)

CLOVER FORK MEDICAL SERVICES, INC.
Clover Fork Medical Services, Inc.' and International
Union of District 50, Allied & Technical Workers
of the United States and Canada. Case 9-RC-9492
November 14, 1972
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING 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 Edward H.
Burton. 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, this case was
transferred to the 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
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. The rulings are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. The Petitioner seeks to represent certain
employees employed by the Employer at the Daniel
Boone Clinic in Harlan, Kentucky. The Daniel
Boone Clinic is an organization of approximately 47
physicians who provide their services at three out-
patient clinics at Appalachian Regional Hospitals
located at Harlan, Middlesboro, and Whitesburg,
Kentucky. The Employer provides assistance to the
physicians by supplying the clinics with registered
and licensed practical nurses, nurses aides, techni-
cians, and office clericals, by scheduling appoint-
ments for patients, by handling the billing of patients
and by purchasing the medical and other supplies
used by the clinics. Each of the Appalachian
Regional Hospitals is required to have an out-patient
i The petition as filed named Willard and Woolsey Professional Service
Corporation d/b/a Daniel Boone Clinic as the employer together with
Clover Fork Medical Services, Inc. At the hearing the petition was amended
to reflect that Clover Fork Medical Services, Inc., is the Employer of the
employees involved herein.
2 In each case the clinic rents facilities from an Appalachian Regional
Hospital. The Harlan and Middlesboro clinics are in separate buildings
adjacent to the Appalachian Regional Hospital. The Whitesburg Clinic is
located within the hospital proper.
a In Centerville Clinics, Incorporated, 181 NLRB 135, the Board found
that this fund is based in the District of Columbia and the revenue to the
fund derives from contributions of coal operators at 40 cents per ton of coal
mined pursuant to the National Bituminus Coal Wage Agreement, a
291
clinic and the physicians at the Daniel Boone Clinic
together with the Employer serve this function.2 The
hospitals also use various testing facilities in the
clinics for testing regular hospital patients.
The Employer employs approximately 125 employ-
ees at all three clinics; 80 at Harlan, 27 at
Middlesboro, and 18 at Whitesburg. During the 12-
month period ending December 31, 1971, the
Employer had income of $966,484,48. Of this
$438,066 was received from the United Mine
Workers welfare fund.3 The Employer purchased the
following during that period: drugs-$27,358.93,
medical supplies-$54,813.65, other sup-
plies-$17,493.90, and postage-$8,051.84. Of its
purchases, 99 percent were made from the Appalach-
ian Regional Hospitals. The Employer states that it
does not know the sources of these supplies. Some of
the remaining purchases were purchases made from
out of State. The Employer had a telephone bill of
$34,464.20 and other utility expenses of $5,577.50. It
purchased group insurance from Phoenix Mutual
Insurance Company in the amount of $33,158.47.
The Employer contends that it is exempt under the
provisions of Section 2(2) of the Act and that its
operation is local in nature and does not meet any of
the current jurisdictional standards. The Employer is
principally engaged in aiding the Daniel Boone
Clinic to provide out-patient medical services, and
although the Employer is operated on a nonprofit
basis, it is not primarily engaged in education
research activities and is not solely on the basis of its
own operations a "hospital" as that term is defined in
Section 2(2) of the Act.4 As to its relationship with
the Appalachian Regional Hospitals, they are sepa-
rate corporate entities and the operations of the
Employer are not incidental to and intimately
connected with the patient care and medical educa-
tion purposes of the hospitals, and therefore the
Employer is not an integral part of the hospitals. The
hospitals do not control the Employer, nor does the
Employer control the hospitals; the Employer is not
by reason of its relationship with the Appalachian
Regional Hospitals excluded from the definition of
an employer as that term is used in Section 2(2) of
the Act.5
The Employer's impact on commerce is sufficient
collective-bargaining agreement between the UMW and coal mine
operators in the coal industry . See International Union, United Mine Workers
of America (Dixie Mining Company), 165 NLRB 467, remanded 399 F.2d
977, decision on remand 188 NLRB No. 121.
4 Mayo Clinic, 168 NLRB 557.
5 Centerville Clinics, supra, Quain and Ramsiad Clinic, 173 NLRB 1185.
Although the Employer's operations may be, by virtue of its services to the
Daniel Boone Clinic , intimately connected with the operations of the clinic,
neither its or the clinic's operations are intimately connected with the
medical services and patient care operations of the hospital . In this respect
the operations of the Employer and the clinic are indistinguishable from the
operations of the Centerville Clinics.
200 NLRB No. 44
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in our view to warrant the Board in asserting
jurisdiction over it. Its annual gross revenue of nearly
$1 million far exceeds the annual gross revenues
standards set by the Board of $250,000 for proprie-
tary hospitals,6 and $100,000 for proprietary nursing
homes.? Further, the clinic received, during 1968,
substantial direct dollar inflow of over $400,000 from
the United Mine Workers welfare fund, the revenues
of which are contributed by the coal industry
generally8 to provide medical benefits to employees
working under collective-bargaining contracts. In
view therefore of its substantial involvement in
operations affecting interstate commerce, we find
that the Employer is an employer engaged in
commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act. The Petitioner seeks a unit
including all employees of the Employer at its
medical facility in Harlan, Kentucky, excluding all
physicians, registered nurses; licensed practical
nurses, professional employees, guards, and supervi-
sors as defined in the Act. The Employer contends
that a unit limited to its Harlan facility is inappropri-
ate and that an appropriate unit would include the
employees at all, three of its facilities. The Employer
contends that certain excluded classifications should
be included in the appropriate unit.9 The Petitioner
has indicated that it is willing to proceed to an
election in any unit found appropriate.
The Employer's Harlan location is 48 miles from its
Whitesburg location and 50 miles from its Middles-
boro location. The three clinics are administered
centrally from the Harlan location. However, each
clinic has local supervision. The employees at each of
the three clinics enjoy the same fringe benefits. The
payroll is processed and bills are paid through the
Harlan clinic. There is no evidence of employee
interchange between the clinics. There has been no
collective-bargaining history. The distance between
the clinics and the apparent lack of employee
interchange is sufficient to establish that the employ-
ees in the Harlan clinic have a separate community
6 Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB
266
7 University Nursing Homes, Inc., 168 NLRB 263
s This factor, along with the much larger size of the clinics involved
herein (47 doctors as opposed to 8 doctors), distinguishes this case from
Alameda Medical Group, Inc, 195 NLRB No. 57.
9 The unit sought by Petitioner includes both clerical and nonclencal
employees. while the Employer raised certain other objections to the
proposed unit, indicated above, it has stated that the operations of the
clinics are such as to require the inclusion of both the clerical and
of interest sufficient to warrant a finding that a unit
consisting of the employees at that location consti-
tutes an appropriate unit.
The Petitioner disputes the inclusion of the
following classifications in the unit: 10 licensed
practical nurses, urology technicians, cardiopulmo-
nary function technician, and executive secretary to
the administrator.
The licensed practical nurses assist physicians in
taking care of patients,11 taking temperatures, blood
pressure, weight, assisting the patient onto the
examining table, handing the physician his instru-
ments, and bringing the physician equipment and
records. The licensed practical nurses also have
general duties such as making sure there is adequate
supply of regular items, seeing that things are in good
order in the examining room, etc. The Employer
contends that licensed practical nurses should be
included in the unit and the Petitioner contends that
they should be excluded. In our view, the evidence is
sufficient to adequately establish that licensed
practical nurses have a community of interest with
the employees in the unit and therefore are properly
includable in the unit.12
Urology technicians are nurses aides who assist the
urologist in situations where a male attendant is
needed. The Employer would include these employ-
ees and the Petitioner would exclude them. Inasmuch
as nurses aids are included in the unit, we find that
these employees have a community of interest with
the employees in the unit and therefore are properly
included in the unit.
Cardiopulmonary function technicians, like the
EKG technician, administer tests to patients making
sure that the machines are properly set. The test
results are then sent to a doctor for analysis. The
Employer would include these employees in the unit
and the Petitioner would exclude them. In our view,
the cardiopulmonary technician employees have a
sufficient community of interest with the employees
in the unit to warrant their inclusion in the unit.
The executive secretary to the administrator assists
the administrator who is responsible for the formula-
tion, determination, and effectuation of the Employ-
er's policies in the field of labor relations. The
executive secretary has access to confidential data in
connection with these functions. The Employer
would include this employee and the Petitioner
nonclencal employees in the same unit. Thus, the parties are in agreement
that the bargaining unit properly includes both clerical and nonclerical
employees,
10 The parties agree that there are no physicians employed by the
Employer and that all the registered nurses employed by the Employer are
excluded from the unit as supervisors.
i Some of the employees performing the same dunes are classified as
graduate practical nurses . For the purposes of the discussion the licensed
practical nurses include the graduate practical nurses.
12 Parkvue Medical Center, 183 NLRB No. 65.
CLOVER FORK MEDICAL SERVICES, INC. 293
would exclude her. In our view, this employee is a
confidential employee and should be excluded from
the unit on that basis.
Accordingly, upon the entire record, including the
agreement of the parties that the bargaining unit
include both clerical and nonclerical employees, we
find that the following employees constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees of the Employer at its medical
facility in Harlan, Kentucky, including licensed
practical nurses, graduate practical nurses, urolo-
gy technicians, and cardiopulmonary function
technicians, excluding all professional employees,
confidential employees, guards, and supervisors
as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]