Carle Clinic Association

National Labor Relations Board - Board Decisions

Aug 4, 1971

192 N.L.R.B. 512 (N.L.R.B. 1971)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carle Clinic Association and Illinois Nurses ' Associa-
tion, Petitioner. Case 38-RC-824,
August 4, 1971
DECISION ON REVIEW
BY CHAIRMAN MILLER 'AND MEMBERS JENKINS
AND KENNEDY
On ,Tune 26,,1970', the Regional Director for Region
13 issued a Decision and Direction of Election, a copy
of which is attached in,pertinent part hereto, in which
he asserted jurisdiction over Carle Clinic Association
and found appropriate a unit of its registered nurses.
The Regional Director declined. to assert jurisdiction
over the contiguously located 'Carle Foundation
Hospital, whose registered nurses were also sought by
Petitioner, on the ground that the' Hospital is exempt
from the Board's jurisdiction under the provisions of
Section 2(2) of the National Labor Relations Act, as
amended. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended,, the Petitioner
filed,a timely request for review contending that the
Carle Clinic. Association and the Hospitalare a^single
employer-within the meaning off, the Act and that a
unit including the registered nurses of both the Clinic
and the, Hospital is appropriate. The ' Board, by
telegraphic `order dated' August -17, 1970, granted
review and stayed the election. The Employer and
Petitioner each filed a briefon review.
i In contending that the Clinic and 'the-Hospital area single employer
within the meaning of the Act, Petitioner primarily relies on the, Board's
decision in Parkvue Medical Center and General Hospital, 183 NLRB No.
65. We conclude, however, that Parkvue is inapposite.
In Parkvue the Board found that an outpatient clinic pharmacy, and a
separately incorporated "not for profit" hospital were , together, a
commonly controlled single employer within the meaning of the Act. Since
the clinic and pharmacy ventures-of`this single employer were operated on
a profit-making basis, the Board - concluded that the Hospital was not
exempt from the Board's jurisdiction under the provisions of Section 2(2)
of the Apt.: In> Parkvue, Dr.- Park owned the clinic and 50 percent of the
pharmacy and Dr. and,Mrs. Park owned the building in which the hospital,
pharmacy, and clinic rented space. Dr. and Mrs. Park received all the
rental moneys. Here ' the Hospital owns the complex of buildings which
houses the Clinic and Hospital and the rent payments are credited to the
Hospital's fund. Profits, if any, from these rental moneys are not
distributed but serve rather to defray nonreiriibursable hospital
expenditures . In addition to-being the landlords in Parkvue, Dr. and Mrs.
Park served the hospital corporation as trustees and directors and in other
capacities . Dr. Park was an officer (vice president) and a member of the
executive committee ofthe board of directors . He was also the Hospital's
salaried medical director and, contrary to the Hospital's bylaws, was also
its acting administrator . Mrs. Park-was assistant administrator , secretary
and treasurer (in which capacity she signed hospital checks), and served on
several committees . Thus, the Parks not only exerted influence on the
Hospital's overall policy and operations but `actually controlled and
manged its day-to-day affairs. Here, doctors ' and' dentists associated with
the' Clinic constitute ra minority of the members and trustees of the
Hospital corporation and do not manage its day-to-day affairs. In Parkvue,
the omnipresent Dr. Park, as a 5,0-percent owner of the pharmacy,
benefited from the profit 's' of the pharmacy which did business with "the
hospital and the clinic and the patients of both. Here the pharmacy is
owned by the Hospital and its profits , as with rental payments from the
Pursuant to, the provisions of Section 3(b) '`of the
National Labor Relations Act,-as ' amended, the Board
has delegated its powers in'connectiori with- this ca.°se
to a three-member panel.
The Board has carefully reviewd the "entire record in
this case -with respect to the issues under ereview, and
hereby affirms the Regional Directors's Decision.'
Accordingly , the case is remanded , to, the 'Regional
Director for Region 13, for the,purpose of holding, an
election pursuant to his , Decision-and- Direction^:of
Election, except that the payroll period for determin-
ing eligibility shall be that immediately preceding} the
date of issuance.?
DECISION AND DIRECTION OF`'",
EL- ECTION
Upon a petition duly filed under_Section 9(c) of the
National, Labor,, Relations _Act,,' a hearing was, held
before a, hearing, officer ,of tie, National ,,;Labor
Relations Board. -The ,hearing officer's-rulings made at
the hearing are=free from prejudicial- error and, are
hereby affirmed} , - < .
Pursuant to, the provisions of Section 3(b) of the
Act,:the, Board' has-delegateditspowers inconnection
with this case to the undersigned Regional Director:
Upon', the entire record in `this ;case the ' Regional
Director finds:
1. The Employer is engaged in. commerce within
the meaning of the Act and it will effectuate the
Clinic,',are not distributed but are credited, to -the previously described
hospital fund . ,In Parkvue, there was also significantt. integration between
the, operation of diet hospital and those,,of'-the clearly commerical
pharmacy. Thus, the pharmacy clerk - was paid out of hospital funds and
the pharmacist, although - paid ` a 1-salary , jointly by, the, hospital and the
pharmacy;,, acted as purchasing agent, custodian;, ands=dispenser, of drugs
and supplies for both the Clinic and the Hospital.
2 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; N. L.R.B. v . Wyman-Gordon Co., 394 U.S.
759. Accordingly, it is hereby directed that a corrected election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Officer-in=Chargeof Subregion 38 within 7
days of the date of this Decision -onReview . -TheOfficer-in-Charge shall
make the fist available ;to. aB parties to the election.-No extensions of time
to file this list shall be granted except in extraordinary circumstances.
Failure to comply with this requirement shall be ground s for setting aside
the election whenever proper objections are filed.
3` Prior to the "hearing,' Petitioner' subpoenaed ,certain material from the
Clinic and Foundation which was not produced at the hearing . Thereafter,
after hearing, on April 6, 1970,-the-Foundation,and Clinic filed , Petitions, to
Revoke Subpoenas Duces Tecum on the grounds that theanaterial sought
to be produced (except that which isalready a part of the record'in "this
case) i^irrelevant. Those documents are hereby received in evidence in this
proceeding'.' As to the request ' for annual reports, employees' information
guides, financial, statements and issues of "CarleNews;";gomg back 5 years
from December 31, 1969 , , I find that these are irrelevant to the issue of, the
relationship of the Chine and Foundation a't the time the instant petition
was filed. With regard to the other material requested , I find that they have
either been produced, although not necessarily in the exact form requested,
or do not exist . Accordingly, the subpoenas will be revoked.
192 NLRB No. 60
CARLE CLINIC ASSOCIATION
purposes of the Act to assert jurisdiction herein.4
2. The labor organization(s) involved claim(s) to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
* Carle Clinic Association (herein called the Employer or Clinic) is an
unicorporated association of doctors engaged in the private group practice
of medicine and surgery. It employs approximately 26 registered nurses in
the unit herein found appropriate , regarding which there is no collective
bargaining history . The parties stipulated that the Clinic is engaged in
commerce within the meaning of the Act and is subject to the jurisdiction of
the Board.
Carle Foundation (herein galled the Foundation) is a corporation
organized in 1946 under the Illinois Not-For-Profit Corporation Act.,Its
primary function is, to operate a hospital in Urbana, Illinois, known as the
Carle Foundation Hospital . According to a 1968 issue of a Foundation-
Clinic employees information guide , the initial structure of, the complex of
buildings presently constituting the Foundation Hospital was completed
about 1925 and the Hospital closed and reopened on several occasions prior
to 1930, when it closed due to the Depression . Under the guidance of
Doctors Rodgers and Davidson, a partnership which preceded the Clinic,
the Hospital was reopened about 1932 . The Hospital continued to grow, and
in 1946 six member physcians of the Clinic incorporated the Foundation as
a Not-For-Proft Corporation whose purpose was to operate a non-
proprietary hospital and perform other functions normally associated with
the operation of such a hospital . The six Clinic physicians constituted the
entire Board of Directors and regular members of the Foundation until
approximately 1964, when the Foundation articles were amended to permit
the Directors to designate additional regular members . Since 1968, the
Foundation has had 30 members who elect an I1 -member Board of
Trustees (formerly known as Board of Directors until about 1968), which
governs the Foundation and is responsible for the overall operation of the
Hospital . Six of said Trustees are sufficient to constitute a quorum. The
Foundation bylaws require a majority of members and Trustees to be
laymen. In accordance with these bylaws , 20 out of 30 members and 6 out
of II Trustees are laymen and the rest are doctors or dentists . In addition to
being members and/or Trustees of the Foundation, these doctors and
dentists are also associates of the Clinic . The Foundation does not employ
any physicians or dentists . Of the 71 physicians and dentists on its medical
staff, 56 are also associates of the Clinic and this represents the entire
complement of full-time physicians and dentists presently associated with
the Clinic. However, a number of the Clinic physicians serving on the
Foundation's medical staff also serve on the medical staffs of other
hospitals in the area . Appointments to the Foundation medical staff are
made by the Board of Trustees on recommendation of the existing medical
staff. Substantially all Clinic patients needing hospitalization are treated at
the Foundation Hospital. The operation of the Hospital is financed by
operating revenue from patients who use the Hospital , by rent received from
the Clinic and by private charitable donations . In addition , the Foundation
has received grants from the Federal Government , under the Hill Burton
Act, to finance construction of new buildings . The Foundation has been
exempted from payment of Federal income taxes and Illinois property
taxes.
The Clinic and Foundation carry out their respective functions in the
same complex of interconnected buildings . Legal title to these buildings
resides in the Foundation and it leases approximately 40,000 square feet
therein to the Clinic . Most of the Clinic offices are located in one of these
buildings, but certain of its offices and/or functions are interspersed
throughout buildings primarily utilized by the Hospital . Thus, the Clinic
leases space in the Hospital emergency room facilities for examination
centers And pediatric offices and holds its monthly amputee clime in the
Hospital's physical therapy department . It further appears that the Clinc's
administration offices, computer space , special process X-ray and speech
therapist facilities are located wholly , or in part , outside the main building
where most Clinic offices are located. The Foundation and Clinic share
certain facilities or services, such as the switchboard, liability insurance
policy, employee newsletter, medical insurance policy, mail room , security
services and parking ; the expenses of which are pro-rated . The Foundation
513
ing 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. The following employees of the Employer
constitute a unit appropriate for the purposes of
maintains and staffs such facilities as a purchasing department , central
supply photocopying service and printing service which may be utilized by
the Clinic , but expenses incurred for materials therefrom are charged to the
Clinic. On the other hand , the Clinic, operates and staffs adata processing
,service and laboratory services which the Hospital may utilize upon
payment of expenses involved. The Foundation also maintains the medical
record library, medical library and dietitian service which can be used by
the Clinic, apparently without expense. The Foundation contracts with the
Clinic to provide all laboratory services such as hematology; chemistry,
microbiology, clinical miseroscopy, sero-mimunology, pathology, necropsy
and autopsy , services, and allergy treatments . The Foundation and Cline
may bill patients for vertain services not performed by themselves and turn
the fee over to the organizaton performing the service with a 5.3 percent
billing fee. These organizations maintain an interorganization account to
clear and settle balances between themselves . Thus, payments are netted out
against each other periodically and a check issued clearing out the balance
in the interorganization account Patients at the Clinic and Hospital have a
single medical record.
The nursing staff of the Clinic and the nursing staff of the Hospital are
separately hired, supervised , have different scales of pay, do not temporarily
or permanently interchange , have different fringe benefits, have different
periods of review for merit increases, have differeent pay periods , and have
different retirement programs . The Foundation and Clinic have separate
managers who are responsible for the day-to-day operations of their
respective organizations.
Contrary to the Foundation and Clinic, Petitioner contends that the
registered professional nurses (approximately 150) employed by the
Foundation at the Hospital it operates should be included in the unit found
appropriate on the grounds that the Clinic effectively controls the
operations of the Foundation and, accordingly, is a joint employer of these
employees . It further contends that, because of the Clinic's control over the
Foundation , the net earnings of the Foundation inure to the benefit of
associates of the Clinic and, therefore, there is no statutory bar to the Board
asserting jurisdiction over the Foundation under Section 2(2) of the Act.
On the basis of the record evidence set forth ibove, I conclude that the
Clinic and Foundation do not constitute joint employers of the nurses
employed at the Hospital, nor do they constitute a single employer within
the meaning of the Act. In this reagrd, I not that associates of the Clinic do
not constitute a majority of the members or Trustees of the Foundation;
that each organization has a separate administrator in charge of the day-to-
day operations of their respective organizations ; and that there is a
significiant difference in the wages, hours, terms and conditions of
employment between the nurses employed by their respective organizations,
indicating a lack of common labor policy. There is evidence of shared
facilities or services but there is also record evidence showing that these are
paid for by their respective organizations , except in such relatively
insignificant services as medical records library and medical library. While
it is true, as Petitioner suggests, that these oral arrangements for purchases
of facilities or services could be used to siphon off earnings from the
Foundation to the Clinic, the record evidence of such payments between the
organizations do not show that this has, in fact, occurred. This, it is noted
the payments between the two organizations, in this regard , involve
substantial amounts of money and, therefore, appear to be arms length
dealings. Furthermore , I am unable to find, on the basis of evidence in the
record, that net earnings of the Hospital inure to the benefit of the Clinic or
any particular associate thereof since the medical staff of the Hospital is not
employed by the Hospital and, as noted above, their various mterorganiza-
tion transactions appear to be bona fide vendor-vendee relationships.
Accordingly, I find that the Foundation falls within the statutory exemption
of enterprises over which the Board may not assert jurisidction and the
petition will be dismissed insofar as it seeks to cover the registered
professional nurses employed by the Foundation. Sierra Hospital Founda-
tion, 181 NLRB No. 143.
513A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective ;bargaining within the meaning of Section
9(b) of the Act: 5
All full-time and regular part-time registered
professional nurses employed by Carle Clinic
b The Clinic, contends that Petitioner is not a labor organization entitled
to use the -Board's processes because it admits supervisors to membership
and these supervisors hold policy -malting positions within the organization.
The record indicates that employees particpate meaningfully in the
Petitioner; that the Petitioner exists in whole or in part for the purpose of
dealing with employers concerning wages, hours and terms and conditions
of employment ; and that it has , in fact, negotiated collective bargaining
agreements with employers . Accordingly, it meets the literal requirements of
Section 2(5) of the Act. While Petitioner does have supervisors 'as members
and some of these supervisors serve on the - Board of Directors , the record
indicates that,, none of the Clinic's supervisors '(as opposed to the
Foundation's supervisors), are presently serving on the Board of Directors.
Association at its Urbana, Illinois, clinic,, but
excluding the head nurse,6 watchmen, guards,
supervisors as defined in they Act, and all other
employees?
In view of the foregoing and the entire record, I find that Petitioner is a
labor organization within the meaning ,of the Act and is qualified -to
represent the employees of the Employer' 'herein,."International 'Paper
Company,, 172 NLRB No. 100. - `
6 The. record , shows that the head, nurse arranges the schedules of five
nurses working in the pediatric office, schedules their work hours, schedules'
vacation periods and can make effective recommendations with respect to'
disciplinary actions or merit increases. ' Accordingly,' I find that she is a
supervisor within the meaning of the Act. - ,
9 Since the unit found appropriate herein is other than that petitioned
for, the Petitioner will be given 5 days' to inform the-Regiona1 'Director in
writing whether or not it wishes to appear on'the ballot.