The Martin Luther Foundation, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1970

186 N.L.R.B. 45 (N.L.R.B. 1970)

THE SWANHOLM 45
The Swanhoim , an operation of The Martin Luther
Foundation , Inc.' and Bay Area Local Union 1010,
Petitioner. Case 12-RC-3449
October 21, 1970
DECISION AND DIRECTION OF ELEC-
TION
By MEMBERS FANNING, 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 Ernest Brenner 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, the case was transferred to the Board for
decision. Thereafter, a brief was filed by the
Employer.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is a wholly owned operation of
the Martin Luther Foundation, Inc., a private,
religiously oriented, nonprofit corporation organized
under the laws of the State of Florida for the purpose
of engaging in scientific, religious, charitable, and
other benevolent endeavors. One of those endeavors
is the Employer's operation of a medicare certified,
religiously affiliated, charitable, nonprofit 274-bed
nursing and convalescent home.3 Both the Founda-
tion and the Employer are affiliated with, but not
controlled by, the American Lutheran Church. The
Employer offers intensive, intermediate, and custodi-
al nursing services on a continuous basis to both
paying and charity patients, all of whom are over 65
years of age, and virtually all of whom are drawn from
within the State. It also offers rehabilitative and
restorative treatment and services in a fairly new
I
The Employer's name appears as amended at the hearing.
z We hereby grant the Employer's motion to amend its brief.
3 The Martin Lutheran Foundation , Inc., consists of the Employer, an
admitted nursing home , and Lutheran Towers, a 91-unit retirement
apartment-hotel . The Foundation originally established the Employer to
care for residents of Lutheran Towers who became ill or infirmed . Today,
the Employer accepts patients from all sources.
4 A Federal program which supplies funds for construction of nonprofit
health-care facilities.
5 The Employer avers that it has an "open staff" of 187 doctors. The
186 NLRB No. 16
building which was constructed with funds supplied
under the Hill-Burton program.4 It has no medical
staff per se,5 and such medical advice and treatment
as is required by its patients is supplied by their
personal physicians. The Employer also has entered
into an undisclosed arrangement with three doctors,
apparently from the "open staff," who are willing to
tend patients whose doctors are unavailable.
In addition to the foregoing nursing and rehabilita-
tive services, the Employer also provides its patients
with various social activities and, for the benefit of
both its patients and Lutheran Towers residents, with
Sunday religious services which are conducted in the
Lutheran faith in a church located on its premises.
The Employer also provides facilities for other
religious denominations.
The Employer annually grosses revenues in excess
of $250,000. During 1968, approximately half of its
gross revenues were derived directly or indirectly
through Medicare payments. It annually purchases
goods and supplies in excess of $50,000 from suppliers
located within the State who, in turn, receive those
goods and supplies directly from points outside the
State.
The Employer urges the Board to decline to assert
jurisdiction over it because, it contends, its religious
affiliation and nonprofit status renders its operation
noncommercial in nature, and because its operation is
analagous to, if not the same as, the operations of
statutorily exempted nonprofit hospitals and, there-
fore, it also should be accorded a similar exemption.
We find no merit in these contentions.
The Employer's nonprofit extended care facility
renders essentially the same type of health care
services as similar proprietary6 and nonproprietary7
extended care facilities, and clearly is the type of
subacute facility over which we have heretofore
asserted jurisdiction in Drexel Home, Inc., 182 NLRB
No. 151, and related cases .8 Moreover, the impact on
commerce generated by its direct and indirect
purchases of goods and supplies and its participation
in various publicly funded, nationally oriented health
care programs is neither influenced nor lessened by its
religious affiliation or its nonprofit status .9 Accord-
ingly, for the reasons set forth herein and because the
Employer receives in excess of $100,000 in gross
revenues per annum, we find that it will effectuate the
"open staff" consists of all doctors who have, or have had, patients at the
Employer.
6 University Nursing Home, Inc., 168 NLRB 263.
7 Good Samaritan Hospital, a/k/a Good Samaritan Home For The Aged,
185 NLRB No . 86; Bethany Home For The Age4 185 NLRB No. 85.
8 "An establishment with permanent 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."
9 Rosewood, Inc., 185 NLRB No. 87; Drexel Home, Inc., supra.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policies of the Act to assert jurisdiction over the
Employer's extended care facility.
2. The labor organization involved claims to
represent certain of the Employer's employees.
3. A question affecting commerce exists concern-
ing the representation of certain of the Employer's
employees within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of "all
employees employed by the Employer at its location
at 6200 Central Avenue, St. Petersburg, Florida,
including aides, maids, orderlies, licensed practical
nurses, kitchen employees, laundry employees, main-
tenance employees and housekeeping employees,"
and further including all regular part-time employees
falling within any classification which may be
included in the unit, and excluding the administrator,
assistant administrator, all registered nurses, the
registered physiotherapists,,, head, chef, ; heady house-
keeper, head maintenance supervisor, the social work-
er, the recreational director, the bookkeeper, the night
watchman, ward clerks, switchboard operators, the
admitting clerk, the nursing secretary, office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
The Employer agrees with the aforesaid unit except
that it would include the ward clerks, switchboard
operators, the admitting clerk, and the nursing
secretary.
The three ward clerks in dispute work on the day
shift only in the various nursing units to which they
are assigned. Approximately 50 percent of their time
is spent in the registered nurses duty station, which is
located separately from the Employer's office clerical
employees, where they prepare supply vouchers, chart
patients' temperatures, pulse, respiration, intake and
output, and answer the phone. The remainder of their
time is spent on the unit floor delivering newspapers
and mail to patients, running errands, getting sup-
plies, writing letters for them, and transporting them.
Although their primary purpose is to free nurses aides
and orderlies from performing the foregoing clerical
and transportation duties, these latter employees
nevertheless occasionally perform those duties. Ward
clerks need not know how to type, nor are they
required to possess any other particular skills or
educational background. Their wages are not more
than those paid to aides or orderlies, and they receive
the same fringe benefits as all other employees. They,
together with aides, orderlies, and licensed practical
nurses, are supervised by the nursing unit registered
nurse. In view of the ward clerks' duties and services,
their functional interchange with aides and orderlies,
their common supervision with other unit employees,
and the absence of affirmative evidence indicating
that these employees lack a community of interest
with other employees included in the unit, we shall
include them in the unit.
The Employer's one full-time and two regular part-
time switchboard operators man the switchboard, act
as information clerks for the benefit of visitors, sort
the mail delivered to the Employer, collect money for
newspapers and stamps which are located on a
counter near their switchboard and which are
purchased by patients or visitors, and accept payment
for bills rendered by the Employer. The majority of
their time, however, is spent performing switchboard
duties. They are supervised by the Employer's
administrator, and are separately located from, and
have virtually no contact with, other unit employees.
Inasmuch as switchboard operators are essentially
office workers, we shall exclude these employees from
the unit.10
As to the admitting clerk, this employee, who must
be a typist, answers inquiries with regard to the
availability of rooms at the Employer, shows prospec-
tive patients around the Employer, performs all the
clerical work necessary to admit a patient, and shows
newly arrived patients to the floor or nursing unit to
which they are assigned. She is supervised by the
Employer's administrator and assistant administra-
tor, is located in a separate admitting clerk's office,
and has very limited contact with other unit employ-
ees. This employee is an office clerical worker, and we
shall exclude her from the unit.
The Employer's one nursing secretary shares an
office with the Employer's assistant director of nurses
whom she assists by performing the clerical and
typing work necessary to process Medicare, Blue
Cross, Blue Shield, and private insurance forms which
are filed with the patients' doctors and insurance
companies. She has no contact with patients, and her
contact with other employees is very limited and is
confined to registered nurses who make out some of
the orders which she relays to the doctors, to aides,
and orderlies to whom she passes out paychecks, and
to licensed practical nurses with whom she has "very
little" undisclosed dealings. This employee also is an
office clerical worker, and we shall exclude her 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 meaning
of Section 9(b) of the Act:
All employees employed by the Employer at its
location at 6200 Central Avenue, St. Petersburg,
Florida, including aides, maids, orderlies, licensed
practical nurses, ward clerks, kitchen employees,
10 Cf Haleyville Textile Mills, Inc, 117 NLRB 973, 974
THE SWANHOLM 47
laundry employees, maintenance employees, and
housekeeping employees , and further including all
regular part-time employees within the foregoing
classifications of employees, excluding the admin-
istrator, the assistant administrator , all registered
nurses , the registered physiotherapists, head chef,
head housekeeper, head maintenance supervisor,
the social worker, the recreational director, the
bookkeeper, switchboard operators, the admitting
clerk, the nursing secretary, the night watchman,
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
[Direction of election" omitted from publication.]
11 In order to assure that 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; N.L.R.B. v. Wyman-Gordon Company,
394 U.S. 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 12 within 7
days of the date of this Decision and Direction of Election . The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list 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.