Mile Square Health Center, Inc.

National Labor Relations Board - Board Decisions

May 5, 1976

223 N.L.R.B. 1314 (N.L.R.B. 1976)

1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mile Square Health Center, Inc. and District Council
19, American Federation of State , County and Mu-
nicipal Employees , AFL-CIO,' Petitioner. Case 13-
RC-13461
May 5, 1976
DECISION ON REVIEW AND DIRECTION OF
ELECTION
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On December 23, 1975, the Acting Regional Di-
rector for Region 13 issued a Decision, Order and
Direction of Elections in the above-entitled proceed-
ing 2 in which, inter alia, he dismissed the instant pe-
tition on the ground that at the time it was filed, prior
to the effective date of the 1974 health care amend-
ments, the Employer fell within the statutory exclu-
sion of enterprises over which the Board could not
assert jurisdiction. Thereafter, in accordance with the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Petitioner filed a
timely request for review of the Acting Regional
Director's decision on the grounds, inter alia, that, in
dismissing the petition, he departed from well-estab-
lished precedent.
By telegraphic order dated January 26, 1976, the
Petitioner's request for review was granted. Thereaf-
ter, the Petitioner and the Employer filed briefs on
review.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
For the reasons set forth hereafter, we find, con-
trary to the Acting Regional Director, that we are not
prohibited by Section 2(2) of the Act 4 from asserting
jurisdiction in this proceeding. We also find no merit
in the Employer's contention that an election is
1 The name of the Petitioner appears as amended at the hearing.
2 The Regional Director consolidated the instant case with Case I3-RC-
13497 for purposes of hearing . In his decision thereafter , the Acting General
Director severed the cases and dismissed the instant petition.
3 At the hearing, Hospital Employees Labor Program of Metropolitan
Chicago (HELP!) and its sponsoring organizations , Local 743, International
Brotherhood of Teamsters , Chauffeurs. Warehousemen and Helpers of
America , and Local 73, Service Employees International Union, AFL-CIO.
were permitted to intervene on the basis of a collective-bargaining agree-
ment with the Employer covering the employees involved herein.
At the time the petition was filed , prior to the effective date of the 1974
health care amendments , Sec. 2(2) excluded from the term "employer," inter
a/ia, "any corporation or association operating a hospital. if no part of the
net earnings inures to the benefit of any private shareholder or individual."
barred by its recognition of and/or collective-bar-
gaining agreement with the Intervenor. Accordingly,
we shall direct an election in the unit which the par-
ties have stipulated is appropriate for the purposes of
collective bargaining.
The Employer, an Illinois corporation, operates a
comprehensive health care center on a not-for-profit
basis in four buildings located in Chicago, Illinois.'
At two of its buildings, the Employer provides medi-
cal treatment for patients with drug abuse problems
on an inpatient basis. The Petitioner seeks to repre-
sent certain employees 6 at the Employer's other two
facilities where the Employer provides various outpa-
tient health care services, such as adult medicine, pe-
diatrics, dentistry, obstetrics, gynecology, family
planning, and mental health. These latter two facili-
ties also serve as the admitting center for patients in
the Employer's drug abuse program.'
The Employer has an agreement with Rush Pres-
byterian-St. Lukes Medical Center, herein called
Rush Medical Center, whereby Rush Medical Center
provides the Employer with hospital beds on an as-
needed basis and charges the Employer for the beds
so used by its patients. Patients of the Employer hos-
pitalized at Rush Medical Center are under the ex-
clusive medical control, supervision, and treatment
of the Employer's doctors and nurses who are paid
by the Employer. On a daily basis, there are between
40 and 50 patients of the Employer hospitalized at
Rush Medical Center and their average stay is ap-
proximately 7 days. The parties stipulated that Rush
Medical Center is a nonprofit hospital excluded from
the coverage of the Act prior to August 25, 1974, the
effective date of the health care amendments.
The Employer is a member of the Chicago Hospi-
tal Council, the Illinois Hospital Association, and the
American Hospital Association. However, the Em-
ployer is neither licensed as a hospital by the State of
Illinois nor accredited as a hospital by the National
Joint Committee on the Accreditation of Hospitals.
In view of the foregoing and the record as a whole,
we conclude that with respect to the employees here
sought the Employer operates a medical clinic over
which the Board asserted jurisdiction prior to the ef-
5 During the last fiscal year preceding the commencement of the hearing,
the Employer received gross revenues of approximately $4,200,000, of which
approximately $4 million was derived from Federal agencies, such as the
Debpartment of Health . Education and Welfare.
On August 8, 1974, the Petitioner filed a petition seeking an election in
a unit of all employees of the Employer, excluding doctors and supervisors
as defined in the Act. At the hearing, the petition was amended to conform
to the unit in the current collective -bargaining agreement between the Em-
ployer and the Intervenor. The petitioned-for unit was generally referred to
by the parties as a service and maintenance unit.
The parties stipulated to exclude from the unit involved herein employ-
ees who work exclusively at the drug-related facilities and those employees
whose work at the other two facilities relates solely to the Employer's drug
program.
223 NLRB No. 201
MILE SQUARE HEALTH CENTER, INC. 1315
fective date of the health care amendments.' We dis-
agree with the Acting Regional Director's conclusion
that the Employer was an exempt hospital at the time
of filing of the petition because it "furnishes hospital
services, including care on an in-patient basis as an
integral part of its operations ...." Although some
of the Employer's patients are hospitalized at Rush
Medical Center where they remain under the
Employer's exclusive medical control, the duties of
the petitioned-for employees do not involve caring
for such patients at that hospital? Rather, these em-
ployees work at those facilities of the Employer pro-
viding the outpatient services of a medical clinic.
Furthermore, it is clear that the Employer itself is not
a hospital, as it is neither licensed nor certified as
such, and its legal existence, function, and operation
is separate and distinct from the nonprofit hospital
with which it contracts for hospital beds.10 In these
circumstances, we find that with respect to the in-
stant petition the Employer was engaged in com-
merce within the meaning of the Act prior to August
25, 1974, and that it will effectuate the purposes of
the Act to assert jurisdiction in this proceeding.
Turning to the Employer's recognition-bar conten-
tion, the relevant facts can be summarized as follows.
In August 1973, the Employer, on the basis of signed
authorization cards submitted to it, recognized the
Intervenor as the collective-bargaining representative
of its community health aides, housemen, and main-
tenance men. The Employer refused to recognize the
Intervenor's claim to represent a larger group of em-
ployees on the ground that it had not proved that it
represented a majority of such employees.
In January 1974," the Employer and the Interve-
nor commenced negotiations for a collective-bar-
gaining agreement which included the issue of the
scope of the bargaining unit. In May, the Intervenor
submitted additional signed authorization cards to
the Employer's counsel on the basis of which the
Employer recognized the Intervenor as the bargain-
ing representative of additional employee classifica-
tions which are set forth in the collective-bargaining
agreement subsequently agreed to by the parties."
s E.g., Quain and Ramstad Clinic, 173 NLRB 1185 ( 1968).
'9 See Duke University, 200 NLRB 81 (1972).
10 As the Employer states in its brief , "Mile Square itself has no other
relationship to Rush , other than this rental of Rush beds."
11 All subsequent dates herein are in 1974 unless otherwise indicated.
12 Sec. 2 . 1 of the collective-bargaining agreement of the Employer and the
Intervenor provides as follows:
The Health Center recognizes the Union as the exclusive bargaining
agent with respect to wages, hours and other terms and conditions of
employment for all environmental specialists , environmental aides.
maintenance employees , community health aides, medical record
clerks, registration clerks, storeroom clerks, clinical clerks, and drivers.
The unit specifically excludes supervisors , temporary and casual em-
ployees, regular part time employees normally working less than twenty
(20) hours per week , and all other employees of the Health Center.
By letter dated July 22, the Petitioner advised the
Employer that a majority of its employees had au-
thorized the Petitioner to represent them and re-
quested a meeting to discuss recognition. The Em-
ployer replied a week later, stating that it was "a little
surprised" by the Petitioner's claim that it repre-
sented a majority of all Mile Square employees. The
Employer further stated that it had recognized the
Intervenor as collective-bargaining representative for
some of its employees the previous August, that it
was presently negotiating a contract with the Interve-
nor, and that therefore it could not comply with the
Petitioner's request.
On August 8, the Petitioner filed the instant peti-
tion seeking an election in a unit of all employees of
the Employer, excluding doctors and supervisors as
defined in the Act. The petition was amended at the
hearing to conform to the unit in the present collec-
tive-bargaining agreement between the Employer
and the Intervenor which was executed on August
20, 1974, and is effective until August 31, 1977.
In these peculiar circumstances, we find that the
Employer's recognition of the Intervenor does not
bar an election at this time. The facts of this case
reveal that recognition was extended to the Interve-
nor in the ttnit finally agreed upon on the basis of
authorization cards submitted on two different dates.
A substantigll period of time elapsed between the ini-
tial submission of cards in August 1973 covering
three employee classifications and the eventual reso-
lution of the unit scope issue the following May
through the submission of additional cards covering
additional employee classifications. Less than 3
months later, the Petitioner notified the Employer
that a majority of its employees had authorized the
Petitioner to represent them, thus raising the possibil-
ity that some of the cards signed by employees the
previous August were, by the time recognition was
granted in May, no longer reflective of those employ-
ees' desires as to collective representation. In view of
this uncertainty, and in the absence of other evidence
indicating that the Intervenor enjoyed majority sta-
tus at the time recognition was extended in May in
the entire unit involved herein, we believe that an
election in which all employees in the unit can ex-
press their present desires as to representation is in
order."
13 We also find no merit in the Employer's contention that an election is
barred by its current collective-bargaining agreement with the Intervenor
which was executed in the interim period between the filing of the petition
and the amendment thereof at the hearing. Where, as here , the amendment
does not result in a unit substantially different from that sought in the
original petition , it is well established that the filing date of the petition is
controlling and that a subsequently executed contract will not constitute a
bar. Deluxe Metal Furniture Company, 121 NLRB 995 (1958 ). For this rea-
son, the Employer's reliance on Hyster Company, 72 NLRB 937 (1947), is
clearly misplaced.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall direct an election in the fol-
lowing unit which the parties stipulated , and we find,
constitutes a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act:
All nonsupervisory community health aides,
clinic clerks , registration clerks, receptionist
clerks, medical records clerks, maintenance em-
ployees, environmental specialists , environmen-
tal aides , drivers , mail clerks , receiving and
storeroom clerks, appointment clerks, dental as-
sistants , playroom counselors, distribution
clerks, x-ray clerks, darkroom clerks, pharmacy
clerks, optometric aides, supply coordinators,
and transport clerks employed by the Employer
at its facilities located at 2040 and 2045 West
Washington Boulevard, Chicago, Illinois; but
excluding guards, supervisors as defined in the
Act, and all other employees.
[Direction of Election and Excelsior footnote omit-
ted from publication.]