The Central Dispensary & Emergency Hospital

National Labor Relations Board - Board Decisions

Sep 26, 1942

44 N.L.R.B. 533 (N.L.R.B. 1942)

In the Matter of THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL
and.BuILDING SERVICE EIVIPLOYEES"INTI•:RN,kTIONAL "UNION, A. F. L.
In the Matter of THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL
and UNITED CONSTRUCTION WORKERS BUILDING SERVICE AND MAIN-
TENANCE WORKERS , LOCAL 120 , C. I. O.
Cases Nos . R-4163 and R-3548, 'respectively .Decided 'September
26, 10.42
Jurisdiction : hospital within District of Columbia.
Investigation and Certification of Representatives : existence of question : filing
of petition at time when question, concerning representation had already
arisen and was pending; election necessary
Unit Appropriate for Collective Bargaining : non-professional and non-technical
employees, with specified inclusions and'exclusions ; stipulation as to.
Practice and Procedure : request of one of petitioners for,permission to withdraw
its petition, granted.
Mr. Albert P. Wheatley, for the Board.
Mr. 'Joseph C. McGarraghy, of Washington, D. C., for the hospital.
Mr. Samuel Levine, of Washington, D. C., for Local 120.•
M. Walter L. James, Jr., of Washington, D. C., for the Interna-
tional.
Mr. Harley G. Moorhead, Jr., of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
On October 7, 1941, and January 6, 1942, respectively, United Con-
struction Workers Building Service and Maintenance Workers, Local
120, affiliated with the Congress of Industrial Organizations , herein
called Local 120,1 filed with the Regional Director for the Fifth Region
i Local 120 filed its petition in this proceeding and until May 15, 1942, participated
in the proceeding under the name Building Service and Maintenance Workers, Local 120,
C. I. O.; on that day it filed a motion to substitute for that name the name appearing
above. The Board issued an order upon notice that if cause to the contrary were not
44 N. L R B., No. 97.
533
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Baltimore, Maryland) a petition and an amended petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of The Central Dispensary & Emergency Hos-
pital, Washington, D. C., herein called the Hospital, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On February 4, 1942, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Section 3, of National Labor Relations Board
Rules and Regulation s-Series ^2, as amended, ordered an investigation
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On February 6, 1942, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Hospital and Local
120. Pursuant to notice a hearing was held on February 12, 1942,
at Washington, D. C., before E. K. 'Shawe, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company and Local 120-
were represented by counsel, participated in the hearing, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Hos-
pital appeared specially at the hearing for the purpose of moving to
dismiss the proceeding for want of jurisdiction on the ground that
the Act did not apply to the hospital operations since the Hospital was
not engaged in trade, ti affic, or commerce within the meaning, of the
Act and since the Hospital is a non-profit-making institution, semi-
public in character, a substantial part of its revenues being obtained
from public funds. The Hospital participated further at the hear-
ing only upon reservations appropriate to preserving its objections
to the jurisdiction of the Board. The Trial Examiner did not rule
upon the motion to dismiss, which was directed to the Board. The
Trial Examiner did make rulings on other motions and on objections
to the admission of evidence; these rulings are hereby affirmed. The
parties requested oral argument before the Board, the request was
granted, and, on March 3, 1941, the parties appeared by respective
counsel before the Board and orally presented arguments directed'to
the issue of the Board's jurisdiction. The Board considered the argu-
ments of counsel and the authorities referred to and relied upon
therein. On April 29, 1942, the Board entered a Decision and Direc-
tion of Election in the proceeding,,, In this decision the Hospital's
motion to dismiss was denied for reasons therein set forth and herein
again set forth.
shown before May 20, 1942, the motion would be granted and no objection being raised,
the Board on May 21, 1942, granted the motion and effected the substitution (On June
12, 1942, Local 120 filed another motion to change its name further ; the Board denied
this motion on June 17, 1942, but without prejudice to subsequent renewal Local 120 did
not renew the motion )
THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL 535
On May 16, 1942, Building Service Employees' International Union,
A. F. L., herein called the International, filed a petition alleging that
a question affecting commerce had arisen with respect to representa-
tion of employees of the Hospital and that the International repre-
sented a majority of said employees. On May 23, 1942, an amend-
ment 2 to the Direction of Election of April 29, 1942,,was issued to
extend the time for-holding an election pursuant to that Direction.
Prior to the holding of an election, the Board, on June 17, 1942, issued
an order vacating the Decision and Direction of Election, as amended,
and by the terms of this order reopened the record, consolidated the
proceeding initiated upon the petition of Local 120 (Case No. R-3548)
with the proceeding initiated upon the petition of the International
(Case No. R-4163), and referred the consolidated proceedings to the
Regional Director with authorization and direction for further in-
vestigation and hearing.
On June 29, 1942, the Board received from Local 210 a letter dated
June 27, 1942, in which Local'120 stated that it desired to withdraw-
the petition it had filed in the original- proceeding, Case No. R-3548.
Pursuant to notice served upon the Hospital , Local 120, and the Inter-
national, a further hearing was held at Washington, District of Co--
lumbia, on August. 17, 1942, before Earle K. Shawe, Trial Examiner.
The Hospital and the International appeared at this hearing. Local
120 did not appear. The request of Local 120 to withdraw its peti-
tion in Case No. R-3548 is hereby granted, and an appropriate order
shall be entered herein. At the hearing held on August 17, 1942, the
Hospital and the International participated , and all parties were
afforded full opportunity•to be heard, to examine and cross-examine
witnesses, and to introduce'evidence,bearing on the issues.3 The Trial
Examinei's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following;
FINDINGS OF FACT
1. THE BUSINESS OF THE HOSPITAL 4
The Central Dispensary and Emergency Hospital -maintains and
operates a'general hospital in the city of Washington, District of Co-
2 41 N L R. B. 215
3 As at the former hearing held on February 12, 1942, the Hospital participated in the
hearing subject to reservations appropriate to preserve its objections to the jurisdiction
of the Board
4 At the hearing held on August 17,, 1942 , the attorney representing the Hospital stated
that the business of, the Hospital has not changed substantially since the hearing held
on February 12, 1942. No additional evidence bearing on the issue of the Board's jurisdic-
tion was introduced The findings of the Board withlrespect to the business of the Hospital
are hence in the form of the Decision issued by the Board on April 29, 1942
536 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
lumbia. The hospital building contains 280 beds in private and semi-
private rooms and in wards; it also contains floor space leased to a
firm of private doctors who there operate X-ray equipment, paying
the Hospital an annual rental of $6,600 and agreeing to do some
charity work. The Hospital provides, facilities for treating medical
and surgical cases, excluding contagious and obstetrical cases; it
handles emergency cases and for that purpose maintains and operates
two ambulances; it also maintains a dispensary. The Hospital is one
of the District's largest, and 10 percent of its patients come to it from
Virginia and Maryland. In the year 1940 the income which the Hos-
pital received for the treatment of patients exceeded $594,000, and the
Hospital also receives an income from a centrally located parking lot
in Washington and from other investments-and from gifts and en-
dowments.- The Hospital employs 120 professional employees and
230 non-professional employees.
The Hospital purchases materials and supplies at a cost of approx-
imately $20',000 a month. About 25 percent of these are, purchased
outside of the District and ,delivered directly from points outside
of the District; about 75 percent are purchased from local dealers,
and these materials and supplies also originate outside the District.
The Hospital receives bids for some of its supply purchases, for
others it deals as a member of a buyers' group.
The income and loss from' operation of the Hospital divides
roughly into three groups of patients, namely, private patients, com-
mercial contract patients, and government or charity patients. The
Hospital makes a profit in its dealings' with private patients, who
contribute approximately 50 percent of it's business; it makes little
or no profit in servicing patients who come'to it pursuant to com-
pensation or group health contracts, representing about 30 percent
of its business; it loses about 50 percent of its costs in treating patients
who come, to it pursuant to contracts or agreements entered into
severally with government agencies and the Community Chest, repre;
senting about 20 percent of its business. The exact nature of the
Hospital's contracts or agreements with the Community Chest, which
provided about 41/2 percent of its 1940, income, and with Health
Security Administration, which provided 2 percent of its 1940 income,
does not appear in the record. The income and loss from the Hospi-
tal's contract with the Health Department of the District of Colum-
bia, in accordance with which the Hospital received about 111/2 per-
cent of its 1940 income, is clearly established. In its appropriation
for the District, Congress allots specific sums for the Hospital and
for other hospitals in the District, amounts which are to be paid in
accordance with contracts the hospitals have entered into with the
THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL 537
Health Department of the District.5 The amounts by which • the
Hospital 's costs exceed its return under this contract and under its
agreements with Health Security Administration and Washington
Community Chest total approximately $100,000 a year, and the Hos-
pital contends that this rendering, of service at a loss establishes its
status as a charitable institution. The other contracts which the
Hospital entered into for service to group health and compensation
cases were, at the time they were negotiated, calculated to return to
the Hospital its costs, or a little more.,' Private patients are charged
at a rate which returns ' a, profit. In 1940 the Hospital made an
operating profit of $750. Although it incurred an operating loss in
1941, this loss was more than recouped by the Hospital's return from
its investments and the Hospital's books for 1941 showed a net profit.
The Hospital was incorporated under articles which recite : "That
the particular object of the association or society is to provide a suit-
able building in the City of Washington, District of Columbia, for a
dispensary where -all needy persons, without distinction, may be pro-
vided gratuitously with medical and surgical service and treatment
and with medicine." The Hospital has expanded in activity and size
since its incorporation in 1882, and although it still operates under a
charter which contains this provision, the superintendent of the Hos-
pital stated that the charter had become obsolete. The Hospital now
does a negligible amount of pure charity where no fees are charged.
It collects what it can from indigent. cases. •
The District of Columbia Wage Board has issued an order inter-
preting the Minimum Wage Act of the District as applicable to female
In its appropriation , 54 Stat 323 , Congress appropriated $ 80,000 for the Hospital,
including $25,000 for George Washington University clinic, all to be paid In accordance
with District Health Department annual contracts These contracts are divided in three
parts, as follows : 1. Hospitalization for emergency cases ; Emergency . treatments ; X-ray
service ; Ambulance service. 2 . Clinic visits ; Redressings . 3 A lump sum appropriation
to reimburse the Hospital for personal services of its out-patient department employees,
including surgeons and doctors of the George Washington School of Medicine assigned
to the clinic for student training.
The services furnished under parts 1 and 2 , above , are upon the certification of the Permit
Bureau of the Health Department and are on an earned basis . The income and cost for
specific services are given below :
Income Expense
Ward care------------------------------- $2 90' $5. 56
Clinic visits , including lump sum
appropriation for personnel ______________ .75 1 16
Ambulance runs__________________________ 1.00 2.50
Emergency room treatments _______________. .65 1.51
6 Group health patients were treated at a charge of $5 a day until October or November
1941; the rate was then raised to $5 50 a day, and It has subsequently been raised to $6
a day. The return for treating compensation cases is not quite equal to the expense of
$5 56 a day, and the Hospital is seeking a rate Increase. -
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
employees of the Hospital.' The Hospital observes the restrictions
of the act, but contends that its compliance is voluntary. Other non-
profit-making organizations which operate in the District have entered
into several contracts with a union certified in each case by the Board.'
The Hospital contends that it is not engaged in trade, traffic, or
commerce within the meaning of the Act. It does import from points
outside of the District of Columbia each month materials and supplies
valued at approximately $5,000, but jurisdiction of the Board does not
depend upon these facts relevant to commerce between the District of
Columbia and the several States. The Hospital operates within the
District of Columbia. Congress legislates for the District of Columbia
under powers granted by the Constitution in the commerce clause, but
it also legislates for the District under plenary powers similar to those
which a State may exercise within its own territory.° Iii National
Labor Relations Board v. Fainblatt, 306 U. S. 601, Mr. Justice Stone
stated that the National Labor Relations Act was intended by Congress
to extend to the reaches of its Constitutional power.
We do not find merit in the Hospital's contention that the jurisdic-
tional words of the Act "trade, traffic, commerce, transportation or
communication" are inappropriate to describe the activities of the Hos-
pital., In U. S. v. American Medical Association,1) the Association,
which was charged with violation of the Sherman Act, contended
that restraint of trade was not a concept applicable to the medical
profession and to certain alleged activities, including restraint prac-
ticed by excluding doctors from the use of hospital facilities. The
Circuit Court of Appeals held that the alleged activities of the Asso-
'In the course of its administration of this Act, 40 Stat 960. the Wage Board entered
Order Number 4, "Public Housekeeping Minimum Wage Order." It therein defined the
term "public housekeeping" to include inter alia the work, of waitresses, cooks, kitchen
help, chambermaids. linen-room girls , chaiwomen, cleaners , telephone operators, elevator
operators, and also " . . all such non-professional workers as may be properly classified
in this occupation in-the following . (13) hospitals . . .
8 Navy Cafeteria, Young Women's Christian Association, and Welfare and lied eational
Association have each entered into contracts with United Cafeteria Employees' Local 471
(C 1 0 ) subsequent to Board proceedings in which jurisdiction of the Board was not
challenged
O Constitution of U S, Ait 1, Sec 8, Cl 17; Atlantic Cleaners & Dens Y. U 8, 286
TI S 427, see also Neild v District of Columbia, App D C. 110 F (2d) 246 In Atlantic
Cleaners if Dyers v. U S, cleaners and dyers were charged with violation of Section
3 of the Sherman Antitrust Act with respect to the business they carried on in the District
of Columbia The Supreme Court arsumed without deciding that "trade or commerce"
would not apply to service industries like that of defendants, insofar as commerce among
the several States was contemplated, but it held that the same words required a broader
construction in a section of the Act dealing with commerce within the District. The
Court stated that Congress had intended the Act to apply to the extent of the Constitutional
power granted Congress, and held that the act did apply to the business of defendants
carried on in the District In the National Labor Relations Act Congress did not enact
a separate section applicable to trade or commerce carried on in the District, but it did
increase the categories of jurisdictional activity beyond "trade or commerce" as plira'ed
in the Sherman Act, and made the National Labor Relations Act applicable to "trade, traffic,
commerce, transportation, or communication within the District of Columbia
i0 App. D C, 110-F (2d) 703
THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL 539
ciation constituted restraint of trade; stating that the phrase "restraint
of trade" had developed a meaning which covered any occupation in
which men engaged for a livelihood. In the present case the Hos-
pital pursues its various activities for a livelihood only in the sense
that it seeks to maintain corporate existence as a going concern, but
we note from the American Midical Association case that the word
"trade" need not exclude from its meaning all medical and hospital
activity. Nor can we hold that the Hospital is not engaged in trans-
portation,11 The ambulances which the Hospital operates in aid of
its emergency business are engaged in a specialized form of transpor-
tation, but it is important transportation carried on by the Hospital
on a fee basis. More determinative is the general nature of hospital
business, which has been held by the United States Supreme Court
to constitute trade or commerce as the words are used in conjunction
with each other. In Jordan v. Tashior, 278 U. S. 116, the Supreme
Court held that the buying of land for the purpose of operating it
general hospital was within the meaning of the words "trade" and
"commerce" used in 'conjunction. '-with each, other. The general
nature of hospital business is hence within the meaning of trade or
commerce.
The fact that the Hospital is not operated for the purpose of re-
turning a profit to its owners is stressed by counsel for the Hospital,
but we are cited to no cases holding that the power conferred on
Congress in the commerce clause is limited to interstate transactions
entered into with motive of financial gain. Statements or -holdings
to the contrary appear in numerous decisions." Adverting to the
transactions in which the Hospital purchases goods with which to
carry on its activities, we discover that the Hospital is entering
into the latter transactions with vendors whose activity is presum-
ably in every sense commercial. We are of the opinion that the trans-
actions entered into with such vendors do not lose their commercial
character, even'if we asume that the Hospital engages in them with
The Hospital in its argument has not noted that the Act confess jurisdiction over trans-
portation and communication within the District The communication engaged in by the
Hospital is no doubt collateral and incidental , but we note that it employs persons to serve
as telephone operators and publishes certain pamphlets in the course of its business
1' In this case the State of California was resisting the effoits of certain citizens of Japan
who were seeking to form a corporation which was to buy land and thereon operate it general
hospital The State contended that the aliens could not take title to the land in the corpora-
tion, even though they might incorporate : the aliens contended that power to hold land for
the hospital was contemplated in it treaty between United States and Japan, \\herein respec-
tive foreign subjects were granted the right to engage in trade or commerce in the respective
countries The Supreme Court of the United States upheld the contention of the Japanese
aliens.
1-1 See, for example , Associated Press v N L R B, 301 U S 104 , 128-9 : U S v Hill,
248 U. S 420 ; see also Bite, national Text Book Co v Pigg, 217 U. S 91 , 93 In Caminetti v
U S, 242 U. S 470 , the Supreme Court held that the use of the word "traffic " in the title of
the White Slave Traffic Act did not indicate that Congress intended that act to apply only
to transportation undertaken with a profit motive
i
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
a motive other than for profit. The commerce clause looks to the
activities which are carried on, rather than to motives. The juris-
diction, conferring words of the National Labor Relations Act, "trade,,
traffic, commerce, transportation or communication" are words of
activity, and.when used together do not give a connotation of essen-
tial motives. The activities of the Hospital, even if they should be
regarded as non-profit-making, are within reach of the power of
Congress and the terms used by if in conferring jurisdiction on the
Board.,
The Hospital contends that it is a charitable institution, but neither
charitable institutions nor their employees are exempted from opera-
tion of the Act by its terms, although certain other employers 14 and
employees 11 are exempted. If Congress did not intend to except
,charities from the scope of the Act, an exact determination of the
Hospital's status in this respect becomes immaterial: We may note
in passing, however, that the Hospital does practically no business
without compensation, and that only one-fifth of its business is carried
on with the expectation of financial loss. The Hospital's obsolete
charter still recites that the Hospital exists for the purpose of
rendering medical service and dispensing medicines gratuitously, but
the Circuit Court of Appeals for the District of Columbia has held
that the purpose recited in the charter is immaterial; that it is what
the Hospital does that determines its nature. White v. Central Dis-
pensary and Emergency Hospital.be In'the same case the Court held
that the fact Congress appropriates money for the Hospital does not
prove it to be a charity, but only that the Hospital is a worthy cause,
like the merchant marine, for example.17
The Hospital has cited to us cases wherein State courts have
decided that application of labor legislation to hospitals and their
14 Section 2 (2), ' . . . the United States, or any State or political subdivision thereof,
or any person subject to the Railway Labor Act, as amended from time to time, or any
labor organization ..., or anyone acting in the capacity of officer or agent of such labor
organization."
The Hospital states that it is semipublic, and relies on the fact that it receives from the
United States by appropriation of Congress money which is disbursed according to con-
tracts entered into by the Hospital and the District Health Department. The fact that
the Hospital may render valuable services, or that the United states, conceivably and if
necessary, might take over and operate the Hospital, does not alter the contractual nature
of the relationship. See N. L R B v W. H. Carroll, 1 Cir., 120 F. (2d) 457; see and cf.
U S v. Bethlehem Steel Corp., decided February 16, 1942. The Hospital may contem-
plate loss under the contracts ; but this is insufficient to bring the Hospital within the
exemption accorded to the United States in Section 2 (2).
11 Section 2 (3), " . any individual employed as an agi icnltuial laborei, or in the
domestic service of any family o1 person at his home, or any individual employed by his
parent or spouse."
16 99 F. (2d) 355, 119 A. L. R 1002.
"Recognition of the Hospitals charitable activities in past years has been accorded to
the Hospital by District tax authorities, who have granted it an exemption from taxes on
hospital property. The propriety of this exemption is now being reexamined.
THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL 541
employees would be contrary to the public policy of the State."'
We do not find declaration or persuasive analogy that a similar
public policy, exists in and for the District of Columbia. In the
minimum wage law applicable to the District, Congress did; not
exempt hospitals, and the District Wage Board in its interpretation
of that law specifically ruled that employees of District hospitals
were included among those protected thereby.19 Congress did not
exclude employees of charitable institutions or hospitals from the
operation of the Workmen's Compensation Act.20 Nor have courts
of the District decided that hospitals and charitable institutions are
not liable for their torts.21 We have considered the cases cited to us-
by counsel' for the Hospital, but find therein no reason why we
should construe the National Labor Relations Act as inapplicable
to hospitals operating in the District of Columbia. Hospitals operat-
ing in the District of Columbia are held responsible for acts incident
to their operation, and in our opinion this responsibility should extend
to rights accorded to employees by tll'e National Labor Relations Act.
As the Supreme Court of Minnesota pointed out in Northwestern
Hospital v. Union'22 employees of hospitals, like employees of auto-
mobile factories, must live upon their wages. And as a New York
Court pointed out in New York Labor Relations Board v. McChes-
ney,23 the right of hospital employees to strike or to join a union does
not depend upon a labor relations act.
The Hospital, within the District of Columbia, engages-in many
business transactions, and operates as a large business, purchasing ma-
terial and supplies at a cost of $20,000 monthly and balancing its books
at a figure close to half -a million dollars annually. 'Exclusive of
employees not involved herein it employs approximately 230 persons,
and reference to the categories of employees set forth in Section V,
herein, will reveal that the Hospital employs many persons who do
the same work as that which is carried on in the course'of many dif-
19 Western Pennsylvania Hospital v. Lichliter, 340 Pa. 382, 17 Ail (2d) 206, 132 A. L. R.
1146; Jewish Hospital v Doe, 252 App Div. 551, 300 N Y. Stipp 1111.
11 Pub . No. 215, 65th Cong., 40 Stat 960; Wage Board Order No. 4.
20 District of Columbia Code, 36-502 ; 45 Stat. 600, 52 Stat. 689.
21 In Hughes v. President and Directors of Georgetown College, 33 F Supp 867, the Couit,
in considering whether a hospital in the District was liable, for the negligence of its
employees, noted that the iule exempting charities from liability for such negligence is
based on public policy, and, without discussion of the public policy obtaining in the District,
followed the general rule which limits the exemption to cases wherein the injured person
is a beneficiary of the charity being administered The Court applied this rule to permit a
private nurse of a patient to recover, and in so doing relied upon the view which it stated
the cases strongly support, that employees of a hospital are not beneficiaries of the hospital's
charity, but are strangeis.to it See also Andrews v Y. M. C A , 226 Iowa 373, 284 N W.
186, upon which the Court relied (Subsequent to the filing of the first decision herein the
Circuit Court of Appeals for the District of Columbia has afdimed the judgment in Hughes V.
President and Directors of Georgetown Hospital, [App. D C ] June 30, 1942
22 208 Minn. 384, 294 N W 215
23 175 Misc. 95, 27 N Y Supp (2d) 866 (Aff'd without opinion. Id , 870)
542 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
ferent private businesses. The Supreme Court of the United States
has stated that Congress intended the National Labor Relations Act
to extend to,the reaches of the Constitutional power of Congress; and
we'find' no goad and valid reason to deny to the employees of the
Hospital the benefits of the Act. We find that the-operations of the
Hospital constitute. trade, traffic, commerce, and transportation be-
tween the several States and the District of Columbia acid within the
District of Columbia, and accordingly decide 24 that the Act confers
jurisdiction over the Hospital and its employees.
U. THE ORGANIZATIONS INVOLVED
United Construction Workers, Building Service and Maintenance
Workers, Local 120, affiliated with the Congress of Industrial Organ-
izations, is .a labor organization admitting to membership the non-
professional employees of the Hospital.
Building Service Employees' International Union, affiliated ' with
the American Federation of Labor, is a labor organization admitting
to membership the non-professional employees of the Hospital.
III. THE QUESTION CONCERNING REPRESENTATION
On May 16, 1942, when the International filed its petition in Case
No. R-4163, the proceeding involving the Hospital and Local 120
was pending before the Board as is above stated in the '`Statement
of the Case." The representative of the International testified, and
we find, that he had personal knowledge that the proceeding was
pending and that,the Board had found as a fact that a question con-
cerning the representation of employees of the Hospital had arisen.
For this reason the International did not request the Hospital to
recognize it as the bargaining agent of the Hospital's employees.
Since a question concerning representation of the Hospital's employees
had already arisen and was still pending, and since the Hospital-was
and.still is contesting the jurisdiction, of the Board ,25 -Nye find that it
24 See U S v Dui by, 312 U. S 100, 120
26 On May 25, 1942, the Hospital filed an action in the District Court of the Disti ict of
Columbia , praying that the members of the Boai d be enjoined from conducting an election
among the employees of the Hospital or certifying any labor organization as their repre-
sentative "or from otherwise undertaking to exercise jurisdiction over the plaintiff and its
employees by reason of anything contained in the National Labor Relations Act " On June 9,
1942, the Board filed a motion to dismiss said action in said court Although the Hospital
on June 15, 1942 filed "Points and Authorities in Opposition to Motion to Dismiss ," it has
not prayed for or been granted a temporary restianning order As is stated above in "State-
ment of the Case," the Hospital appeared at the beating held on August 17 1942, and
participated therein , reserving its objections to the Board's iuusdnction But it made no
motion to dismiss or abate the hearing , or in other wise raise the contention That the
Board should not proceed in the matter pending hearing on the Board ' s motion to dismiss
the Hospital' s action for injunction. ,
THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL 543
was not necessary for the International to request recognition from
the Hospital.
The Hospital has stipulated, nd evidence introduced at the hearing
indicates, that the International represents a substantial number of
the Hospital's employees.26
We find that a question has arisen concerning the representation of
the Hospital's employees.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRrsINNTATION UPON
COMMERCE
We find that the question concerning representation which has arisen,
occurring in connection with the operations of the Hospital described
in Section I above, has a close, intimate, and substantial relation to
trade, traffic, commerce, and transportation between the several States
and the District of Columbia and within the District of Columbia, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The International and the Hospital have stipulated and we find
that all non-professional and non-technical employees , including all
attendants , maids , orderlies , porters , timekeepers , watchmen, tele-
phone operators , ambulance drivers, elevator operators , housemen,
cleaners , doormen, seamstresses , kitchen employees employed in the
dietary, and maintenance and repair employees , but excluding all
professional, technical, clerical, and supervisory employees , and all
engineers and firemen , constitute a unit appropriate for the purposes
of collective bargaining . We further find that said unit will insure
to employees of the Hospital the full benefit of their right to self-
organization and to collective bargaining and otherwise will effectuate
the policies of the Act.
s°A statement of the Acting Regional Duiector Pot the Fifth Region was ,ntroduc d in
evidence This statement, dated August 14. 1942, recites that the Acting Regional Dnector
examined 60 application cards submitted to him by the International, that 33 of the cards
bone dates between May 9, and 28 , 1912, and 27 bin e no date but were represented to be of
date subsequent to May 9, 1942. and that all of the cards bore apparently genuine and
original signatures At the heating the representative of the International exhibited to
the Trial Examiner 8 additional cards, indicating that a total of 68 employees desire
the•Internatiotal to represent them The cards were not checked against a pay ion of the
Hospital because it refused to furnish it pay ioll tor the purpose, stipulating in lien thereof
that the Inteinatio al does represent a substantial number of employees in the unit herein
found appropriate
In our former decision, dated April 29, 1942, we found on the evidence then before its
that there were 202 employees in the unit ( The International adtises that the Ilospital is
now short-handed and that there ate only 180 employees in the unit; the Hospital to the
contiarv advses that there now are 230 employees in the unit
.544 DECISIONS OF NATIONAL "LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which ' has
arisen can best be resolved by an election by secret ballot. We shall
direct that the employees of the Hospital eligible to vote in the
election shall be those in the appropriate unit who were employed
during the pay-roll period next preceding the date of the Direction,
subject to the limitations and additions set forth in the Direction.
Upon the-basis of the above findings of fact,and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
'1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Central Dispensary & Emergency
Hospital, Washington, D. C., within the meaning of Section 9 (c)
and Section 2 (6) and (7), of the National Labor Relations Act.
2. All non-professional and non-technical employees of the Hos-
pital, including all attendants, maids, orderlies, porters, timekeepers,
watchmen, telephone operators, ambulance drivers, elevator operators,
housemen, cleaners, doormen, seamstresses, kitchen employees em-
ployed ill' the dietary,, and maintenance and repair employees, but
excluding all professional, technical, clerical, and supervisory em-
ployees, and all engineers and firemen, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of
Section 9 (c) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board, by Section 9 (c) of the National Labor
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purpose of collective bargaining
,with The Central Dispensary & Emergency Hospital, Washington,
D. C., an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) ' days from the' date of this
Direction, under the, direction 'and supervision of the Regional Direc-
tor for the Fifth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Section 9,
of said Rules and Regulations, among all non-professional and non-
technical employees of the Hospital, Washington, D. C., who were
employed by the Hospital during the pay-roll period immediately pre-
THE CENTRAL DISPENSARY & EMERGENCY HOSPITAL 545
ceding the date of this Direction, including all attendants, maids,
orderlies, porters, timekeepers, watchmen, telephone operators, ambu-
lance drivers, elevator operators, housemen, cleaners, doormen, seam-
stresses , kitchen employees employed in the dietary, maintenance and
repair employees, and employees who did not work during such pay-
roll period because they were ill or on vacation or in the active military
service or training of the United States, or temporarily laid off, but
excluding all professional, technical, clerical, and supervisory em-
ployees, all engineers and firemen, and employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by, Building Service Employees' International
Union, A. F. L., for the purpose of collective bargaining.
ORDER PERMITTING WITHDRAWAL OF PETITION
United Construction Workers Building Service and Maintenance
Workers, Local 120, C. I. 0., having requested, and the Board having
granted its request, that it be permitted to withdraw the petition
which it filed in this proceeding under name of Building Service and
Maintenance Workers, Local 120, C. I. 0., the same being Case No.
R-3548, consolidated on June 17, 1942, with Case No. R-4163,
IT IS HEREBY ORDERED that Case No. R-3548 be, and it hereby is,
severed from Case No. R-4163, that in accordance with the request
of United Construction Workers Building Service and Maintenance
Workers, Local 120, C. I. 0., its petition in Case No. R-3548 be, and
it hereby is, withdrawn, and that without prejudice to Building
Service Employees International Union, A. F. L., Case No. R-3548
be, and it hereby is, closed.
4 8 7 4 08-4 2-N of 44---35