Rosewood, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 193 (N.L.R.B. 1970)

ROSEWOOD, INC 193
Rosewood, Inc. and Service Employees ' International
Union , Local 150-T, AFL-CIO, Petitioner and
American Federation of State, County and Munici-
pal Employees , AFL-CIO, Intervenor .' Case 26-
RC-3298
August 27, 1970
DECISION AND DIRECTION OF ELECTION
BY,MEMBERS MCCULLOCH,'BROWN, AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Willie L.
Clark, Jr., of the National Labor Relations Board.
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, the case was transferred to the Board
for decision. A motion to dismiss and brief in support
thereof was filed by the Employer.
Pursuant to the ,provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
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, the Board
finds:
1. This Memphis, Tennessee, based Employer was
originally incorporated about 1960 as a proprietary
nursing home. Because it never succeeded in making
any profits, its charter was amended in July 1967
and its for-profit status was thereby converted to
that of a 'charitable institution broadly authorized
to engage in scientific, educational, charitable, and
other -benevolent endeavors. The Employer has no
shareholders, and neither its officers nor directors
are paid.' Since its conversion, the Employer has oper-
ated a Medicare-certified, accredited, skilled, nonprofit
nursing home with an undisclosed number of beds
which are provided with continuous nursing services.
The Employer categorizes itself as an extended care
facility which "is practically the same as a hospital."'
' This party was permitted to intervene at the hearing on the basis
of its showing of interest
' The Employer attempted to establish that it falls within the statutory
exemption afforded nonprofit hospitals The record shows that the Employ-
er is accredited by Medicare as an extended care facility and licensed
by the State of Tennessee as a nursing home, and that it operates
as such by providing subacute "medical care for the convalescent, the
chronically ill and the aged " The Employer's attorney, after stating
that "Rosewood is a nursing home and extended care facility," attempted
to draw a distinction between profit and nonprofit nursing homes, contend-
Its medical staff consists of a medical Advisory Com-
mittee and an open staff. The former is composed
of 5 nonsalaried physicians who render advice on
medical practices and procedures and also render
medical services to, and are paid by, patients without
doctors of their own; the latter consists of 160 physi-
cians who.use the Employer's facilities and are paid
by patients for care rendered. The Employer admitted-
ly competes with other nursing homes, both profit
and nonprofit, for its patients who are drawn primarily
from the local area, although "quite a few" come
from Arkansas and Mississippi, and occasionally from
Chicago, Illinois. There is nothing in the record to
indicate that its patients are selected, or not selected,
on the basis of color, race, religion, or any other
such criteria,'but rather that it accepts all patients
able to afford its average monthly charges of $500
for a private room and $400 for semiprivate. It also
accepts an undisclosed number of "charity patients"
under the Medicare program and some "welfare'
patients" either referred to it by welfare agencies
or requested by the Employer when it has vacancies,
and absorbs such losses as might be incurred thereby.
Once accepted, such patients are allowed to remain
even though their Medicare or other support sources
expire. Beyond patient fees, such money as is necessary
for the Employer's operation is obtained by donations
and gifts, and by borrowing from commercial lenders.
During the 12 months preceding the hearing, the
Employer grossed revenues in the approximate amount
.of $960,000. During this same period, its direct and
indirect purchases of goods and supplies from outside
the State exceeded $7,000.
As indicated above, the Employer categorizes its
extended care facility as "practically" a nonprofit
hospital and contends, therefore, that it is statutorily
exempt from the Act. Alternatively, it urges the Board
to decline to assert jurisdiction over it because its
nonprofit status renders its operation noncommercial
in nature. We find no merit in these contentions.
The record clearly shows that the Employer is
not classified as a hospital by licensure, accreditation,
its articles of incorporation, or its charter, and that
it acknowledges itself to be, and is certified under
Medicare as an extended care facility which, we find,
falls within the ambit of the type of nonprofit subacute
facility over which we previously asserted jurisdiction
in Drexel Home, Inc., 182 NLRB No. 151.' Moreover,
mg that the latter "would be more inclined to receive patients at either
a reduced rate or no rate, that is, receive a charity patient, then would
a profit or proprietary institution "
' "An establishment with permanent facilities that includes 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 "
'185 NLRB No. 87
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since the Employer renders the same services as
similar proprietary health facilities, competes with
such facilities for residents willing and able to pay its
$400-$500 monthly charges, and participates in
national health-care programs in precisely the same
manner and to the same degree as those facilities, we
r 3d that the Employer exerts a similar and
suL'tantial effect on commerce that is neither
infiaenced nor lessened by its nonprofit status."
Accordingly, for all of the reasons set forth herein
and in Drexel, 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 junsdiction over the Employer's extended
care facility.
2. The labor organizations involved claim to repre-
sent certain of the Employer's employees.
3. A question affecting commerce exists concerning
the representation of certain of the Employer's employ-
ees within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. As finally developed at the hearing, Petitioner
seeks to represent 136 or 137 of the Employer's
150 full-time and 20 part-time employees in a unit
consisting of nurses ' assistants , nurses' aides, orderlies,
assistant maintenance engineer , outside lawn men,
housekeepers, laundry workers, dietary aides, assistant
physical therapists, and licensed practical nurses
(LPNs),5 excluding all office clerical employees, pro-
fessional employees, guards, and supervisors.'
The Employer, which has no history of collective
bargaining, agrees with the aforesaid unit except that
it would exclude the LPNs as supervisors and also
because their interests differ from those of the included
employees. For this latter reason, Intervenor also
would exclude LPNs as professionals.
The record shows in this regard that the Employer's
LPNs are licensed by the State of Tennessee after
having attended a vocational school attached to a
hospital for a period of 13 months and thereafter
passing a qualifying state examination . They punch
a timeclock, as do all employees except the director
and assistant director of nursing, and receive the
same fringe benefits as all other employees. The record
' Drexel Home, Inc, supra See also Bethany Home for the Aged,
185 NLRB No 85, a companion case to this proceeding
5 Petitioner's original petition excluded LPNs
b The parties agreed to exclude the Employer' s six registered nurses
(RNs) as supervisors
contains no -reference to their pay other than to
state that "there is a difference in pay in all of
[the Employer's] categories [of employees]." They,
together with the Employer's six registered nurses,
are the only employees entitled to wear a cap. The
LPNs are in charge of the Employer's five stations'
which operate on a 3-shift 7-day week basis. As
charge nurses they supervise the work of two to
six employees including nurses' assistants , nurses'
aides, and orderlies, depending on the number of
patients in the station. They have the authority to
recommend wage increases, enforce the Employer's
rules, discipline employees, and relieve ill employees
from duty. They also effectively recommend hiring
and in emergency situations may discharge employees.
In addition, they chart patients' records in accordance
with the doctors' instructions, prepare and administer
medication, "check[s] on the intravenous that has
been given by the RNs," and observe patients for
vital signs. We find that the LPNs are supervisors
within the meaning of the Act, and we shall exclude
them from the unit.
Accordingly, we find that the following employees
of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All nurses' assistants , nurses' aides, orderlies,
assistant maintenance engineer , outside lawn men,
housekeepers, laundry workers, dietary aides, and
assistant physical therapists, excluding all office
clencal employees, licensed practical nurses, reg-
istered nurses, professional employees, guards and
supervisors as defined in the Act.
[Direction of Election8 omitted from publication.]
' The Employer points out that while RNs normally are in charge
of stations in a hospital , it is not economically feasible to follow such
procedure in nursing homes The Employer's RNs, for example, are
its main supervisors and are in charge of the Employer 's "whole building"
during the shifts on which they work There is always at least one RN
on duty
' in order to assure 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 election 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, NLRB v Wyman-Gordon
Company, 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 26 within 7 days of the date of this Decision and Direction
of Election The Regional Director shall make these lists available to
all parties to the election No extension of time to file these lists shall
be granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting
aside the election whenever proper objections are filed