Drexel Home, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 1045 (N.L.R.B. 1970)

DREXEL HOME, INC.
Drexel Home, Inc. and Council 19, American Federation
of State, County and Municipal Employees , AFL-CIO,
Petitioner and Local 73 , Service Employees Internation-
al Union , AFL-CIO Licensed Practical Nurses Associa-
tion of Illinois, Division 1 Intervenors.' Case
13-CA-11344
June 2,1970
DECISION AND DIRECTION OF ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING,
BROWN, AND JENKINS
On December 5, 1967, Petitioner filed a petition under
Section 9(c) of the National Labor Relations Act, as
amended, thereby seeking to represent certain of the
Employer's employees. The Regional Director, relying
on University Nursing Home, Inc., 168 NLRB 263,
in which jurisdiction was asserted over proprietary, or
for-profit, nursing homes, dismissed the petition for
lack of jurisdiction because of the Employer's nonprofit
status. The Regional Director's dismissal of the petition
subsequently was sustained on appeal to the Board.
Thereafter, Petitioner engaged in a series of Board and
district court actions designed to persuade the Board
to process its petition and, in connection therewith,
filed a complaint in a Federal district court2 on February
8, 1968, alleging that the Board's refusal to assert juris-
diction over the Employer and its dismissal of the petition
violated both the Act and due process 6f law. In April
of 1968, while this court action was still pending, the
Employer and Intervenor Local 73 executed a 3-year
contract effective January 1, 1968.
In September of 1968, the court issued its memoran-
dum opinion wherein it stated that although the Board
may refuse to assert jurisdiction on an ad hoc basis
over religious, educational, and eleemosynary institu-
tions, and in individual cases if the policies of the
Act would not be effectuated by such assertion, it may
not refuse to assert over an entire class of employers
except as provided in Section 14(c)(1) of the Act.3 Citing
Office Employees v. N.L.R.B., 353 U.S. 313, for the
proposition that once the Board determines that a given
class of employers exerts a substantial impact on com-
merce, jurisdiction may not be renounced over an entire
category of employers within that class, the Court con-
cluded that since the Board has asserted jurisdiction
in University Nursing Home, Inc., on the ground that
a class of employers, proprietary nursing homes, substan-
tially affect commerce, the impact on commerce is not
' Local 73 was permitted to intervene on the basis of its collective-
bargaining agreement with the Employer The Licensed Practical Nurses
Association also was permitted to intervene because of its claimed
representation of a substantial number of the Employer ' s licensed practi-
cal nurses
2 Council 19 , American Federation of State, County and Muncipal
Employees , AFL-CIO, etc v N L.R. B., et al., U S District Court,
Northern District of Illinois , Eastern Division , docket no 68 C 229
3 In pertinent part, Sec 14 (c)(I) provides that the Board may "decline
to assert jurisdiction over any labor dispute involving any class or
category of employees , where, in the opinion of the Board , the effect
of such labor dispute on commerce is not sufficiently substantial to,
warrant the exercise of its jurisdiction "
1045
necessarily lessened by the nonprofit nature of a nursing
home performing the same type of services as for-
profit homes, and the nonprofit character of part of
this class is therefore irrelevant. The Court concluded
that such nonprofit employers neither fall within the
provisions of Section l4(c)(1) of the Act nor may be
excluded as a class on the sole ground that they are
not operating for profit.
Thereafter, the court dismissed the proceeding before
it after the Board agreed to reinstate the petition for
further processing. Accordingly, a hearing was held
before William D. Boetticher, Hearing Officer of the
National Labor Relations Board.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as amended,
by direction of the Regional Director for Region 13,
the case was transferred to the Board for decision.
Briefs have been filed by the Employer, Petitioner,
and Intervenor, Local 73, Service Employees Interna-
tional Union (S.E.I.U.).
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.
Upon the entire record in this case, the Board finds:
1. The Employer is a Medicare-approved, charitable,
nonprofit institution licensed by the Illinois department
of public health and the city of Chicago to operate
a 220-bed "home for the aged."4 Virtually all -of its
residents are drawn from the Chicago metropolitan area.
Physically, they range from "independent ambulatory"
to bedridden and wheelchair-bound patients unable to
feed themselves. Some require a minimum amount of
nursing care and only periodic medical or nursing treat-
ment, while others are infirm, and still others are either
acutely ill or suffer from chronic long-term illnesses.
More specifically, the Employer maintains a 24-bed apart-
ment house occupied by ambulatory residents which
is located across the street from its main building. The
main building contains 220 beds and is divided into
an ambulatory area containing 88 beds, and a nursing
care area unit with 132 beds. It consists of approximately
six floors, two of which are also occupied by the ambula-
tory residents who require a minimal amount of nursing
care, two by residents requiring more nursing assistance,
and two, the "chronic" floors, by residents requiring
heavy or intensive nursing care. The 132 beds in the
nursing areas not only invariably are filled to capacity,
but, in addition, 50 percent of all of the Employer's
beds have 24-hour-a-day nursing service. Further, there
is a 15-bed infirmary which offers the usual minor medical
treatments.
The Employer has no medical staff per se, but utilizes
physicians affiliated with and supplied by the Michael
Reese Hospital. The record shows that this hospital
also is used by the Employer's residents for outpatient
' Although affiliated with the Jewish Federation of Metropolitan Chica-
go, a nonprofit , fund-raising organization primarily serving the Chicago
Metropolitan Jewish community, the Employer is, nevertheless , an auton-
omous agency of the 'Federation and, through its own board of directors,
makes its own policy determinations
182 NLRB No. 151
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treatment and hospitalization , but does not clearly indi-
cate whether all such services are rendered without
cost to residents.
In addition to the foregoing nursing and medical serv-
ices, the Employer also arranges,for or provides its
residents with various social activities as well as a
regular and continuous program of religious services
and activities.
During 1968, the Employer grossed revenues in the
amount of $1,300,000. During the same period, it pur-
chased $427,385 worth of goods and services. Although
only $860 of this latter amount represents direct inflow,
purchases were also made from such national concerns
as Metropolitan Life, Blue Cross, Schering, Parke Davis,
Otis Elevator, and Xerox. In addition, a substantial
portion of the Employer's gross income, specifically,
$330,842, consisted of payments which it,received direct-
ly or indirectly from the Federal Government through
Social Security and Medicare programs.
The Employer urges the Board to decline to assert
jurisdiction over it because, it avers, it is engaged in
a local, nonprofit, religious-associated operation which
neither affects commerce substantially enough to warrant
the exercise of the Board ' s jurisdiction nor otherwise
falls within the purview of University Nursing Home,
Inc., in light of its designation as a home for the aged.
We find no merit in these contentions
We previously indicated in University Nursing that
proprietary health care facilities are not local with regard
to the substantial financial interstate and national impact
they exert on commerce because , inter alia, of their
ever-increasing growth and participation in various
national health and welfare programs financed with public
funds flowing from the Federal Government. These con-
clusions'apply with equal force to the Employer herein
who, despite the "local" and religious nature of its
operation, nevertheless renders the same type of health
services as similar proprietary health care facilities, par-
ticipates in national health care programs in precisely
the same manner and to the same degree as those
facilities , and, as evidenced by its receipt of over
$330,000 in Social Security and Medicare payments,
exerts a similar and substantial effect on commerce
that is neither influenced nor lessened by its nonprofit
status or its religious affiliation or activities.
Likewise, the Employer's characterization of itself
as something other than a nursing home neither lessens
that effect on commerce nor removes its facility from
the category over which jurisdiction was asserted in
University Nursing. The import of the Employer' s argu-
ment is that nursing homes differ from homes for the
aged in that the former are primarily devoted to health
care and supplementary hospital functions for people
of all ages, while the latter are basically social facilities
which provide total care to elderly people only, with
health care a necessary but nevertheless secondary func-
tion. Based on this premise, the Employer further argues,
in effect, that it is not bound by the decision in University
Nursing because there the Board failed to consider
these` differences and neither contemplated asserting,
nor asserted, jurisdiction over homes for the aged, but
instead grounded its conclusions solely on the operations
and effect on commerce of "nursing " homes , and assert-
ed jurisdiction only over such homes.'
A reading of University Nursing , including both the
authoritative sources and the statistics cited therein,
clearly shows , contrary to the Employer , that our conclu-
sions therein were predicated on considerations which
extended to and encompassed "proprietary nursing
homes and related facilities . An this health-care field, "
and that , in addition to nursing homes, jurisdiction also
was asserted over such "related facilities ." (Emphasis
supplied .) Without belaboring the point , we note for
clarification purposes that a home for the aged is such
a "related facility ". within the authoritative , medical,
and officially recognized meaning of the all -inclusive
term "nursing home and related facilities ."', Moreover,
the title by which an institution may be designated
does not necessarily indicate its true function or clearly
describe its operation . The present Employer , for exam-
ple, is ostensibly a "home for the aged ." Even though
all of the Employer̀'s residents may be aged , 60 percent
of them nevertheless are assigned to beds located in
specifically designated nursing areas , and 50 percent
of all beds , wherever located , have round -the-clock nurs-
ing service . Thus, the Employer ' s operation can be
as readily ; and perhaps more precisely , classified as
a nursing home for the aged . Technically , it would
fall within one of many definitions of a nursing care
home ." However, as recently noted by the American
Hospital Association ,' health care facilities generally and
specifically lack a preciseness of definition because of
the wide variations in usage of descriptive terms. As
a result , the term "nursing home ," as reflected through-
out the country in licensure definitions , literature, and
public understanding , no longer has a generally accepted
meaning because the term represents different and vari-
ous concepts of function to different 'people . This obser-
vation is equally applicable to the subterm "home for
the aged."
In any event , we perceive no essential difference
between the Employer 's "home for the aged" operation
and that of a "nursing home ." Moreover ; since the
Employer is not statutorily 'exempt from the Act, such
differences as may exist have no bearing whatsoever
on the basic issue of whether its operation affects com-
"Nursing homes and related' facilities offer a wide range of services
which include not only nursing and medical services , but also custodial
'and personal care functions. Included are nursing , convalescent and
rest homes and sanitoriums in which medical and surgical care is
not a main function of the institution , as well as homes for the aged
and boarding homes ", p 37, Nursing Homes and Related Facilities,
Economic Effects Studies, 1969, United States Department of Labor,
citing as authority, U.S. Public Health Service, Characteristics of Nursing
Homes and Related Facilities, PHS Publication 930-F-5, 1963.
one in which 50 percent or more of the residents receive
one or more nursing services and the facility has at least one registered
nurse (RN) or licensed practical nurse (LPN) employed 35 or more
hours a week " p 216, Health Resources Statistics; U S Depart-
ment of Health, Education and Welfare, 1969.
The American Hospital Asso iation has, until recently, defined such
as "an institution providing facilities and services primarily for inpatient
care of individuals who require skilled nursing care and related medical
services, but who do not require hospital care , the services being
prescribed by and performed under the general direction of persons
legally authorized to practice medicine or surgery."
DREXEL HOME, INC.
merce or falls within the provisions of Section 14(c)(1)
of the Act. However, in order to obviate semantical
differentiations , and in the interest of, providing for
our own jurisdictional purposes a clearer . and more
objective characterization of the Employer's operation,
we identify it as falling within the category of an extended
care facility. Such a facility, in the purview of Medicare,
is defined-by the American Hospital Association-a defi-
nition which we accept-as "an establishment with per-
manent facilities that include inpatient beds ; and with
medical services , including continuous nursing services,
to provide treatment to patients who require ; inpatient
care but who do not require hospital services."
Accordingly, we reject the Employer's arguments that
an institution ' s effect on commerce may be measured
by its nonprofit status , its title , its religious affiliation,
or its occupants. Therefore, insasmuch as we have
already determined in University Nursing that the opera-
tions of proprietary health care facilities substantially
affect commerce . and that it will effectuate the policies
of the Act to assert jurisdiction over such facilities,
and because the operations of nonprofit extended care
facilities are analogous to the operations of such proprie-
tary facilities and also substantially affect commerce
in much the same manner , we are constrained to agree
with the Court that the Employer's nonprofit status
is irrelevant and that no proper basis exists for, declining
the assertion of jurisdiction in this proceeding under
the provisions of Section 14(c)(1) of the Act. We also
find that the $100 ,000 gross revenue jurisdictional stand-
ard established for proprietary facilities in University
-Nursing is applicable to the Employer herein. According-
ly, for all the reasons set forth herein and in University
Nursing, and because the Employer receives in excess
of $100 ,000 in gross revenues per annum , we find that
it will effectuate the policies of the Act to assert jurisdic-
tion in this proceeding.'
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act. -
4. Petitioner seeks to represent a unit which includes
all nurses aides , licensed practical nurses, dietary, hou-
sekeeping , and clerical employees , engineering and main-
tenance employees, and social service department
employees, and excludes "registered nurses, doctors,
supervisors and guards. as defined in the Act." The
parties ' positions with regard to the unit placement
' Member Fanning concurs in the assertion of jurisdiction herein
essentially for the reasons set forth above . In his view , neither the
religious nor- the charitable aspects of the Employer's operations are
sufficient in scope or character to persuade him to decline to exercise
jurisdiction . The Employer concedes that the Jewish Federation which
contributes roughly one-third of the Employer's operating revenues
has ';no official connection with any of the Jewish congregations in
the City (of Chicago) " Though that one-third contnbutionl consists
largely of "charitable contributions" raised by the federation, the remain-
der of the Employer's operating revenues consists largely of payments
received from the residents themselves , or made on their behalf in
the form of public assistance and Social Security payments paid over
to the Employer. -
1047
of orderlies, therapy aides, and art instructor, however,
are not clearly presented.
The Employer and, Intervenor Local 73, Service
Employees International Union, AFL-CIO, contend, in
substance, that while their collective-bargaining agree-
ment may not constitute a technical bar to the petition
since it was entered into subsequent to the filing of
the petition, that agreement nevertheless should be hon-
ored and the petition dismissed because it was entered
into after the Board had indicated that it would not
assert jurisdiction over the Employer, leaving the con-
tracting parties with a good-faith belief that there was
no legal barrier to prevent them from executing the
contract. Alternatively, the Employer agrees with the
foregoing unit except that it would exclude the licensed
practical nurses, hereinafter referred to as LPNs,- as
supervisors. Intervenor Licensed Practical Nurses Asso-
ciation of Illinois, Division 1, hereinafter referred to
as L.P.N.A., has no interest in representing any of
the Employer's employees except the LPNs," and it
would exclude them on the ground that they are technical
employees. In the alternative, L.P.N.A. proposes that
LPNs be permitted to vote in a Globe-type election.
Neither the Employer nor Petitioner objects to such
proposal.
We reject the contention that agreement between
the Employer and Intervenor Local 73 should be held
to preclude the processing of the petition herein. While
it is true that these parties executed their agreement
subsequent to the Board ' s affirmance of the Regional
Director 's dismissal of the petition , it is also true that
they had full knowledge that the district court action
had been instituted by Petitioner on February 8, 1968,
prior to the execution of that agreement, and that the
action was still pending at the time they entered into
that agreement . Thus, these parties were forewarned
that the results of the Court suit might further result
in a reinstatement of the petition and the consequent
nullifying of their agreement, both of which events
have occurred.
As to the unit placement of the self-descriptive classi-
fications of orderly, therapy aid, and art instructor,
we find, in the absence of affirmative evidence indicating
that these employees lack a community of interest with
other employees in the requested unit , or are employees
who otherwise should be excluded from the unit, that
these classifications of employees may be appropriately
included in the unit sought by Petitioner, and we shall
include them therein.
With regard to the disputed LPN classification, the
record shows that they are required to have a high
school diploma or its equivalent, to complete a city
In July of 1967 , prior to the filing of the petition , the LPNs in
issue sought and obtained a meeting with the Employer at which hours,
wages, and conditions of employment were discussed Thereafter, pur-
suant to written proposals submitted to the Employer and three further
bargaining sessions , these parties reached an oral understanding which
-the Employer reduced to writing in the'form of a memorandum which
it signed . L P N A ' which claims to represent a substantial number
of the ' Employer ' s LPNs, does not claim that memorandum to be
a bar.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approved 1 year to 1-1/2-year formal training program
consisting of classwork and schooling in hospitals and
other types of health care institutions, and to pass
an examination conducted by the state board of educa-
tion. With the exception of two LPNs who work as
nonsupervisory therapists' aids in the medical depart-
ment, the remaining LPNs are employed in the Employ-
er's nursing department where they assist and are respon-
sible to registered nurses (RNs) who normally are in
charge of nursing units. While these LPNs receive only
three-quarters of the wages paid RNs, they generally
are able to do anything an RN can do with regard
to patient care with the exception of administering more
complicated procedures such as intravenous feeding.
They do, however, administer intravenous injections,
oxygen, medications, and narcotics, apply special dress-
ings to surgical patients, and write accident and incident
reports. Except for the 11 p.m. to 7 a.m. shift, RNs
are in charge of various of the Employer's units and,
as charge nurses, assign duties to the LPNs, nurses
aides, and other unit employees who work together
under the RNs' direction and supervision. It is the
Employer's practice, however, to assign LPNs as charge
nurses in the various units on the 11 p.m. to 7 a.m.
shift. In addition, LPNs assume charge of an RN's
unit during an RN's vacation or days off. The record
does not clearly indicate, however, whether all or only
some of the LPNs regularly act as charge nurses, or
whether a specific number regularly perform this func-
tion. While acting in the capacity of a unit charge
nurse , LPNs assign work to and oversee the work
of the two or three aides and orderlies normally assigned
to a unit. In the event a problem arises which an
LPN in charge of a unit cannot handle, she contacts
her supervisor, an RN, at least one of whom is always
on duty and in charge of the premises. RNs in the
same situation do likewise. LPNs clearly do not exercise
any supervisory functions when an RN is the charge
nurse , but merely relay the RN's instructions. While
LPNs may recommend hiring and firing, again the record
does not clearly specify whether such recommendations
are given effective weight, or whether their authority
to recommend is general or may be exercised only
while a LPN is a charge nurse.
On the state of the record before us, we are unable
to determine which of the LPNs employed in the nursing
department may be supervisors within the meaning of
Section 2(11) of the Act . It appears , however, that
at least some of these LPNs are employees within
the meaning of Section 2(3) of the Act, and we find
that such LPNs, including the two nonsupervisory LPN
therapy aides in the medical department, constitute an
identifiable homogeneous group and may, if they so
desire, constitute a separate appropriate unit for collec-
tive bargaining.
In view of our determination that the LPNs may
constitute a separate unit if they desire, and, because
their functional integration with other employees in the
performance of their medical and personal care duties
also warrants their inclusion in the broader unit, which,
we find, is also appropriate for collective-bargaining
purposes, we shall make no final unit determination
at this time but shall direct that elections be conducted
in the following voting groups.
(a) All licensed practical nurses, excluding all watch-
men, guards, registered nurses, doctors, other profes-
sional employees, and supervisors as defined in the
Act.
(b) All nurses aides, therapy aides, orderlies, art
instructors, dietary employees, housekeeping employees,
clerical employees, engineering and maintenance employ-
ees, and social service department employees, excluding
the employees in voting group (a) and all watchmen,
guards, registered nurses, doctors, other professional
employees, and supervisors as defined in the Act."
Because of the unresolved supervisory issue with
regard to the nursing department LPNs, these LPNs
shall be permitted to vote subject to challenge. If a
majority of employees in voting group (a) select Interve-
nor Licensed Practical Nurses Association, the employ-
ees in that group will be deemed to have indicated
their desire to constitute a separate bargaining group
and the Regional Director conducting the election is
hereby instructed to issue a Certificate of Representative
to L.P.N.A. for such unit, which the Board finds in
the circumstances to be appropriate for the purposes
of collective bargaining. However, if a majority of the
employees in this voting group do not vote for Intervenor
Licensed Practical Nurses Association, the group will
appropriately be included in the broader unit and their
ballots shall be pooled with those of group (b).'°
If a majority in voting group (b), including any pooled
group, vote for Petitioner or Intervenor Local 73, such
labor organization shall be certified as the representative
of employees in that group which, in these circum-
stances, the Board finds to be an appropriate unit for
purposes of collective bargaining.
[Direction of Elections omitted from publication.]"
" Employees in voting group (a) shall vote whether they desire to
be represented for collective-bargaining purposes by Licensed Practical
Nurses Association of Illinois, Division I; Council 19, American Federa-
tion of State, County and Municipal Employees, AFL-CIO, Local
73, Service Employees International Union, AFL-CIO, or by no union
Employees in voting group (b) shall vote whether they desire to be
represented by Council 19, American Federation of State, County and
Municipal Employees, AFL-CIO, or by Local 73, Service Employees
International Union, AFL-CIO; or by no union
"' If the votes are to be tallied in the following manner- the votes
for L P.N.A., the labor organization seeking a separate unit in group
(a), shall be counted as valid votes but neither for nor against the
labor organizations seeking to represent the broader unit . All other
votes are to be accorded their face value.
In order to insure 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 elections should have access to a list of
voters and their addresses which may be used to communicate with
them Excelsior Underwear Inc , 156 NLRB 1236; Wyman-Gordon Com-
pany, 394, U S 759 Accordingly, it is hereby directed that election
eligibility lists, containing the names and addresses of all the eligible
voters, must be filed by the Employer with the Regional Director
for Region 13 within 7 days after the date of this Decision and Direction
of Elections The Regional Director shall make the lists available to
all parties to the elections No extension of time to file these lists
shall be granted by the Regional Director except in extraordinary circum-
stances Failure to comply with this requirement shall be grounds for
setting aside the elections whenever proper objections are filed