Central Dispensary and Emergency Hospital

National Labor Relations Board - Board Decisions

Jun 11, 1943

50 N.L.R.B. 393 (N.L.R.B. 1943)

In the Matter Of CENTRAL DISPENSARY AND EMERGENCY HOSPITAL-and
BUILDING SERVICE EMPLOYEES ' INTERNATIONAL UNION
Case No. C-2604.-Decided Jwne 11, 1943
DECISION
AND
ORDER,
On May 5, 1943, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had en-
gaged in and was engaging in certain unfair labor practices and rec-
-ommending that it cease and desist therefrom and take certain affirma-
tive action as set out in the copy of the Intermediate Report attached
hereto. Thereafter the respondent filed exceptions to the Intermedi-
ate Report. The Board has considered the rulings of the Trial Ex-
aminer at the hearing and finds. that no prejudicial error was commit-
ted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions, and the entire record in the
case, and 'hereby adopts the findings, conclusions, and recommenda-
tions'of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the-respondent, Central Dispensary and
Emergency Hospital, Washington, D. ,C., its officers, agents, succes-
sors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Building Service Em-
ployees' International Union, affiliated with 'the American Federation
of Labor, as the exclusive representative of all its non-professional
and non-technical employees, including all attendants, maids, order-
lies, porters, timekeepers, watchmen, telephone operators, ambulance
drivers, elevator operators, housemen, cleaners, doormen, seamstresses,
kitchen employees employed in the dietary, maintenance and repair
50 N. L . R. B., No. 59.
393
394 D'ECISI'ONS OF N 'AT'ION'AL' LABOR --RELATIONS BOARD
employees, but excluding all professional, technical, clerical, and su-
pervisory employees, and all engineers and firemen;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise, of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act. , '
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Building Service Em-
ployees' International Union, affiliated with the American Federation
of Labor, as the exclusive representative of all its non-professional
and non-technical employees, including all attendants, maids, order-
lies, porters, timekeepers, watchmen, telephone operators, ambulance
drivers, elevator operators, housemen, cleaners, doormen, seamstresses,
kitchen employees employed in the dietary, maintenance and repair
employees, but excluding all professional, technical, clerical, and su-
pervisory employees, and all engineers and firemen, in respect to rates
of pay, wages, hours of employment, and other conditions of
employment;
(b) Post immediately in conspicuous places in its hospital in Wash-
ington, D. G., and maintain for a period of at, least sixty (60) con-
secutive days from the date of posting, notices to its employees stat-
ing : (1) that the respondent will not engage in the conduct from which
it,is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; and (2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
INTERMEDIATE REPORT
Messrs. Robert A. Leavitt and Earle K. Shawe,.for the Board.
Mr. Joseph C. McGarraghy, of Washington; D C, for the respondent.
Mr. Russell R. Dreyer, of Washington, D. C., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed February 9', 1943, by Building Service Employees'
International Union, herein called the Union, the National Labor Relations
Board, herein-called the Board, by ;the Regional Director for the Fifth Region
(Baltimore, Maryland), issued its complaint, dated April 21, 1943, against
Central Dispensary and Emergency Hospital, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of,Section 8 (1) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
CENTRAL DISPENSARY AND EMERGENCY HOSPITAL 395
called the Act. Copies of the complaint, accompanied by notice of hearing, were
duly served upon the respondent and the Union
With respect to the unfair labor practices the complaint alleged in substance:
(1) that all non-professional and non-technical employees of the respondent,
including all attendants, maids, orderlies, porters, timekeepers, watchmen, tele-
phone operators, ambulance-drivers, elevator operators, housemen, cleaners, door-
men, 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 within the meaning of - Section 9 (b)
of the Act; (2) that on October 21, 1942, a meajority of the employees of the
respondent in the said unit designated the Union as their representative,for the
purposes of collective bargaining; (3) that on December 2G, 1942, the Board, in
Case No R-4163, certified the Union as the exclusive representative of the
employees in the said appropriate unit; (4) that on or about December 31, 1942,
the Union requested the respondent to bargain collectively with it ; (5) that on or
about January 15, 1943, and at all times thereafter, the respondent refused to
recognize the Union and to bargain collectively with it; and (6) that by such
refusal the.respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section ,7 of the Act.
In its answer, dated April 30, 1943, the respondent (1) admitted certain alle-
gations of the complaint as to the nature of its business, but denied that it was
engaged in interstate commerce and alleged that the Board was without juris-
diction ; (2,) admitted that it declined to negotiate an agreement with the Union
but denied that this refusal constitutes an unfair labor practice within the mean-
ing of Section 8 (5) of the Act; and (3) denied that on October 21, 1942, a
majority of the employees of the respondent in the said unit designated the
Union as their representative for the purposes of collective bargaining. The
respondent's answer further set forth certain affirmative allegations with respect
to the nature of its business.
Pursuant to notice, a hearing was held at Washington, D. C, on May 3, 1943,
before the undersigned Trial Examiner duly designated by the Chief Trial Exam-
iner. The Board and the respondent were represented by counsel, and the Union
by its representative. At the commencement of the hearing counsel for the
respondent stated formally that the respondent contended that the Board was
without jurisdiction in the proceeding. All parties 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. At the close of the
hearing the Trial Examiner granted, without objection, a motion by Board's
counsel to conform the pleadings to the proof. The parties were advised that
they might argue orally before the Trial Examiner. None of the parties argued
orally. All parties waived the filing of briefs.
Upon the record thus made the Trial Examiner makes, in addition to the above.
the following:'
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 1
The Central Dispensary and Emergency Hospital maintains and operates a
general hospital in the city of Washington, District of Columbia. The hospital'
building contains 280 beds in private-.and ,semi-private rooms and in wards ; it
1 The findings in this section are based in part upon the Board's "Findings of Fact" in
Cases Nos. R-3548 and R-4163 and upon stipulations entered into in the present proceeding.
396 DECISr01\"S OF' NATIONAL LABOR RELATIONS BOA-RD
also contains floor space leased to a firm of iprivate 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 emer-
jgency 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 Hospital received for the treatment of patient's
exceeded $594,000, and the Hospital also receives an`'income from a centri4lly
located parking lot in Washington and from other investments and from gifts and
endowments. The, Hospital employs ,120 professional employees and 230 non-
professional employees ,
The Hospital purchases materials and supplies at a cost of approximately
$20,000 a month. About 25 percent of'these are purchased outside of the Dis-
trict and delivered directly from points outside the District ; about 75 percent
are purchased from local dealers, and these materials and.supplies also originate
outside the District. The Hospital receives bids'forsome. 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, commercial, contract pa-
tients,' and government or charity, patients The Hospital makes a profit in its
dealings with private, patients, who contribute approximately '50 percent of its
business ; it makes,little or no profit in servicing patients who come to it pursuant
to compensation 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, representing 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 Hospital's contract
with the Health Department of the District of Columbia, in accordance with
which the'Hospital received about 117/ percent 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 Health Department of the District. 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 approxi-
mately $100,000 a year. 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. Pri-
vate 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 invest-
ments and the Hospital's books for 1941 showed it net profit.
The Hospital was incorporated under articles which recite : "That the par-
ticular object of the association or society is 'to provide a suitable building
in the City of Washington, District' of Columbia, for a dispensary where all
needy persons, without distinction, may be' provided 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
CENTRAL DISPENSARY AND EMERGENCY HOSPITAL, 397
of the Hospital 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. ; i. , ,
, Since' the date of the Board's Certification of ,Representatives, December ,26,
'1942, the respondent has also conducted, without remuneration, in cooperation
with the Surgeon General's Office of the United States Aymy, a course of
training for an average of,19,or 20 Medical and Surgical Technicians.
II. THE LABOR ORGANIZATION INVOLVED
1,
Building Service Employees" International Union, affiliated with the American
Federation of Labor, is a labor' organization admitting to membership employees
of the respondent. '
III. THE UNFAIR LABOR PRACTICES
The' re fusal to bargain
1. The appropriate unit and representation, by the'Union of a majority therein
On September 26, 1942, the Board issued •a Decision, Direction of, Election and
Order in Case No. R-4163: in which it ordered that an election be ' conducted
among the respondent's non-professional and ,non-technical employees, exclusive
of all professional, technical, clerical and supervisory employees, and all en-
gineers and firemen, to` determine whether they desired to be represented by, the
Union. 'An telection by secret • ballot was, conducted) on, October' 21, 1942. On
December 26, 1942, the Board issued a Supplemental Decision and Certification
of Representatives in Case No, R-4163' in which' .it certified the Union as the
exclusive • bargaining representative, of those employees; for' the purposes of
collective bargaining, in an appropriate unit.` r'At. the,, hearing in-the instant
proceeding, the respondent offered no additional evidence that those employees
did not constitute an appropriate Iinit.
The Trial Examiner finds, in accordance with the Board's previous determina-
tion, that all non-professiolial and non-fechnical employees of,,thd- respondent
who were employed by the respondent during the pay roll period immediately
preceding the date of the Direction, including' all attendants, maids, orderlies,
porters, timekeepers, watchmen, telephone operators, ambulance driers, elevator
operators, housemen, cleaners, doormen, seamstresses, kitchen employees employed
in the dietary, maintenance and repair employees, but excluding all professional,
technical, clerical, and supervisory employees, and all engineers and firemen,
constitute and at all times material herein have constituted, a unit appropriate
for the purposes of collective bargaining The Trial Examiner further finds
that on and at all times after December 26, 1942, the Union was the duly desig-
nated bargaining representative of a majority of the employees in the'aforesaid
appropriate unit, and that, pursuant to the provisions of Section 9 (a) of the
Act, the Union was on December 26, 1942, and at all times thereafter has been
and is now the exclusive representative of all employees in the aforesaid unit
for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
2 44 N. L. R. B. 533. The Board ordered that, in accordance with the request of the
petitioner in Case No R-3548, the petition in that case be withdrawn and the case closed.
346 N L R B. 437.
'The Boaid found that of 108 ballots cast at the election, and 101 valid votes counted,
75 employees had voted for the Union, and 26 against it.
I
J
1
398 DECISIONS OF N 'AT'IONAL LABOR RELATIONS ` BOA-RD
2 The refusal to bargain •
At the hearing in the instant proceeding , it was stipulated by the respondent's
attorney that by letter dated December 31, 1942, the Union requested the
respondent to 'meet with it for The purpose of entering into a collective bargain-
ing agreement. It was further stipulated that ' since December 26, 1942, the
respondent'bargained with '' Individual employees in the said unit. It was further
stipulated that by , letter dated , January 15 , 1943, the respondent stated to the
Union that the only procedure to follow in order to obtain a judicial review
of .the . Board's ; decision ' was to refuse to bargain collectively . It was . further
stipulated . that on January 15 ,- 1943, the respondent refused , and at all times
since has refused, to bargain collectively with the Union as the exclusive repre-
sentative of all the employees , of the respondent in, the unit hereinbefore
'described as appropriate
The Trial Examiner finds that on January 15, 1943, and at all times thereafter,
the respondent has refused to bargain collectively with the Union as the exclusive
representative of its ' employees in the appropriate unit and hasrthereby interfered
with , restrained , and coerced its employees in the exercise of the rights guaranteed
in'Section 7 of the Act . ` i '
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE -
The activities of the respondent set, forth in Sections III above , occurring rin
connection with the operations of the respondent described in' Section I above,
have 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, tend to lead to, labor disputes burdening and
obstructing commerce and, the free flow, of commerce.' I''
V. THE REMEDY
11
Since it has been found that `the respondent ' has engaged in unfair, labor
practices,_ it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate'the'policies of the Act. Since it
has been found;that'the respondent has refused to barg2incollectively with, the
Union as the exclusive representative of its employees in an' appropriate unit,'if
will be recommended'that -therespondent, upon request, bargain collectively with'
the Union
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following: '
CONCLUSIONS OF L_1W
1. Building Service Employees' International Union, affiliated with the Ameri-
can Federation of ',Labor;' is a labor organization, -within, the meaning of Section
2'(5) of the At. ' ,
2. All,non-professional and non-technical employees of the respondent who were
employed by the respondent during the pay roll period immediately preceding the
date of the Direction, including all attendants, maids, orderlies, porters, time-
keepers, watchmen, telephone operators, ambulance drivers, elevator operators,
housemen, cleaners, doormen, seamstresses, kitchen employees employed in the
5 See, in addition to the cases cited in the Board's Decision and Direction of Election;
Matter of Polish National Alliance, 42 N. L. R B 1375 and N. L. R. B. v Christian Board
of Publications, 113 F. (2d) 753 (C. C. A 7), enf'g 13 N. L. R. B. 534, holding that the
fact that the respondent is not organized or operated for profit does not defeat jurisdiction.
CENTRAL DISPENSARY AND EMERGENCY HOSPITAL 399
dietary, ' maintenance and repair employees , but excluding all professional,
technical , clerical , and supervisory employees , and all engineers and firemen,
constitute and at all times material herein have constituted , it unit appropriate
for the purposes of collective bargaining within the ' meanin'g of `Section 9 (b) of
the Act.
3. Building Service Employees ' International Union, affiliated with the Ameri-
can Federation of Labor, was on December 26, 1942; and at all times thereafter
lias been the exclusive representative of all the employees in the aforesaid unit
for the purposes of collective bargaining , within the meaning of Section 8 (5)
of the Act.
' 4.'By refusing , ' on January 15, 1943; and at all times thereafter , to bargain
collectively with Building Service Employees ' International Union, 'affiliated
with the`American Federation of Labor, as the exclusive representative of all its
employees in the afo 'resaid ' appropriate unit, the respondent has engaged in and
is engaging iii unfair ` labor practices within 'the meaning of Section ' S, (5) of
the Act.''
5. By interfering with, restraining and coercing its employees in'tlie exercise'
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is erigiiging ' in unfair labor practices , within the meaning of Section 8 (1)
of the Act. -
6. The aforesaid unfair labor practices are unfair labor practices affectii,g
commerce, within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case,,the Trial Examiner recommends that•the respondent,
Central Dispensary and Emergency Hospital, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Building Service Employees' Inter-
national Union, affiliated with the American Federation of Labor, as the exclusive
representative of all its employees in the above-described appropriate unit;
(b) In any other manner interfering with, restraining, or coercing its em=
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Building Service Employees' Inter-
national Union, affiliated with the American Federation of Labor, as the exclu-
sive representative of all its employees in the above-described appropriate unit;
(b) Post immediately in conspicuous places in its hospital in Washington, D. C.,
and maintain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating: (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist
in paragraphs 1 (a) and (b) of these recommendations, and (2) that the respond-
ent will take the affirmative action set forth in paragraph 2 (a) of these recom-
mendations ; I -
(c) Notify the Regional Director for the Fifth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith. '
400 DECISIONS IOF N'AT'IONAL -LABOR RELATIONS BOARD
It is further recommended that unless on or'before ten (10). days from the
ieceipt of this Intermediate'Report, the,respondent notifies said,Regional Direcor
in writing that it will comply, with the foregoing recommendations,, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article 'II of the Rules,and Regulations, of the
National Labor Relations Board, Series.2-as amended-any, party may Within
fifteen (15) .days from the date of 'the entry of the order transferring the case
to the'Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D. C., an original and four
copies of a statement in writing setting forth such exceptions, to the Intermediate
Report or to any other part of,the record or proceeding (including rulings upon,
all motions or objections) as he relies upon, together with the original and four
copies, of a brief in support thereof. As further provided in said Section 33,,
should any party desire permission.to argue, orally before the Board,, request
therefor must" be made in writing to the Board witliin_ten (10) days from the
date of the order transferring the case to the Board. ,
RALPH A. NEWMAN,
f - •I, I
Dated May 5, 1943.
Trial Examiner.,