Lovelace Foundation for Medical Education and Research

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 743 (N.L.R.B. 1967)

LOVELACE FOUNDATION
Lovelace Foundation for Medical Education
and Research and International Association
of Machinists and Aerospace Workers
(AFL-CIO). Case 28-RC-1531.
June 21, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing in this case was held before Hearing Officer
William B. Dickinson. 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
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.
Upon the entire record in this case, and the briefs
filed by the parties herein, the Board finds:
The Petitioner seeks a unit consisting essentially
of nonprofessional research employees excluding
office clerical employees and supervisors at
the Employer's research foundation. The
appropriateness of the unit is stipulated and the
sole issue before the Board is whether jurisdiction
should be asserted over the Foundation. We do not
believe it should be.
The Lovelace Foundation for Medical Education
and Research came into existence in 1947 as a
nonprofit corporation organized under the laws of
the State of New Mexico. The moving force behind
the founding of the Foundation was Dr. Lovelace,
several doctors who along with Dr. Lovelace were
then operating the Lovelace clinic as a partnership,
and several prominent citizens and philanthropists.
When the Foundation was created, the partnership
was dissolved and all of its assets were transferred to
the Foundation. The clinic was reorganized as an
association to engage in the practice of medicine and
the Foundation made a rental arrangement under
which its facilities and equipment were made
available to the clinic.
In order to achieve the objectives set forth in the
Articles of Incorporation,' the founders and their
successors ultimately brought together into one
geographical location the out-patient clinic (as
reorganized), an in-patient hospital, and the
Foundation research facilities. As noted above, the
' "To aid, engage in, conduct and foster in the broadest and
most liberal manner medical, surgical and scientific research and
investigation , and to apply the knowledge derived therefrom to
the causes , prevention , relief and therapy of human disease and
the benefit of mankind in general , to carry out basic and applied
research in aviation medicine and in matters directly or indirectly
related thereto , to initiate and further activities designed to
promote the education , training, skill and investigative ability of
743
out-patient clinic was reorganized to engage in the
practice of medicine and is by law, accordingly,
under the exclusive control of medical doctors. The
in-patients hospital, also situated on land donated by
Dr. Lovelace and known as the Bataan Memorial
Methodist Hospital, is a nonprofit hospital owned by
a division of the Methodist Church and operated by a
lay board. Although each of the three units is
basically a separate and independent operation,
there is a definite interrelationship between them as
well as a high degree of functional integration. Thus,
4 of the doctors on the 28-man board of the
Foundation are on the staff of the clinic; 2 of the
members of the hospital board are also on the board
of the Foundation; and 48 employees of the clinic
also performed work for, and without charge to, the
Foundation. In addition, the activities of the clinic
and Foundation are almost completely interspersed
among the several buildings making up the medical
center complex with the hospital buildings located
immediately adjacent to the Foundation's
headquarters building. Further, in addition to the
medical center complex, the Foundation owns 18
two-bedroom apartment units which are used for
housing externs, residents, and other students and
visiting scientists.
The Foundation is controlled and governed by a
board of trustees with secondary control vested in an
executive committee. The day-to-day operations and
research are directed by the president-director,
C. S. White, M.D., and the individual directors of
administration, research, and education. The
Foundation is further subdivided into approximately
21 operating and research departments, each with
its own director. The Foundation had a total staff of
327 full or part-time employees at the end of the
fiscal year 1965, with some 119 who were members
of the senior or associate scientific staff of the
Foundation. As to the directors of the operating
departments, eight are medical doctors, seven are
Ph. D.'s, one is a doctor of veterinary medicine, and
the remaining six have various basic and advance
degrees within their special fields.
Section 2(2) of the Act, which defines the term
"employer," does not expressly exclude educational
or research institutions. However, the legislative
history of that section shows clearly that, when the
1947 amendments were enacted, Congress was
aware of the Board's policy that "only in exceptional
circumstances and in connection with purely
commercial activities of such (nonprofit)
organizations have any of the activities of such
organizations or of their employees been considered
physicians, scientists and individuals engaged in work in the basic
sciences which bear on medicine and surgery , to investigate and
study the effect on health of residence in the southwestern part of
the United States, and particularly in a dry climate , and to publish
or assist in publishing the results of scientific investigations and
o nervations made by members of the staff of the Lovelace Clinic
and by persons concerned with this Foundation."
165 NLRB No. 99
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as affecting commerce so as to bring them within the
National Labor Relations Act."2
Since 1947 the Board has construed the above-
quoted legislative history as a "guide, if not a
mandate" in determining whether or not to assert
jurisdiction over activities of nonprofit organizations,
and has consistently applied the rule that
jurisdiction would be asserted where the particular
activities involved in commercial in nature in the
generally accepted sense, but that jurisdiction would
be declined over activities noncommercial in nature
and intimately connected with the charitable
purpose and educational activities of the institution.3
In this case, the record shows that the Foundation
was created by the philanthropy of several doctors
and community leaders desirous of establishing an
organization to engage in basic medical and
paramedical research. The land on which the
Foundation is located was donated to the
Foundation. The immediately adjacent land was
donated to the Methodist Church for the purpose of
constructing a nonprofit hospital. All of the initial
costs of construction as well as a substantial portion
of the original salary costs were met out of funds
supplied to the Foundation by gifts and bequests,
and the Foundation has not, and does not, receive
any funds resulting from any research relating to or
directed toward commercial activities.
The record also shows that as of 1965, the
Foundation has been engaged in nine major projects
relating to various medical research problems. The
largest research project is the Fission Product
Inhalation Program, funded and sponsored by the
Atomic Energy Commission, which involves the
study of the biological consequences of inhaling
soluable and insoluable fission products. Other
projects include the Defense Atomic Support
Agency project relating to "Blast and Shock
Biology"; the National Aeronautics and Space
Administration's project relating to space medicine,
including the biomedical aspects of operating
manned spacecraft; the National Institute of Health
project involving the study of the aging process; the
Defense Atomic Support Agency project relating to
the hazards of exposure to all significant
combinations of environmental variations produced
by nuclear explosions; the National Institute of
Health project on testing equipment for
cardiopulmonary resuscitations and all applicable
prosthetic devices used in cardiac surgery; and, the
Atomic Energy Commission's project relating to the
effects of nuclear explosion.
In furtherance of its goals and in conjunction with
its research operations, the Foundation has
developed an extensive educational program
designed to secure the greatest dissemination of its
2 H. Rept . No 510, 80th Cong , 1st Sess p 32, 1 Leg. Hist 536
See also Office Employees International Union, Local 11 (Oregon
Teamsters ') v N L R B , 353 U S 313, 318, 319, and The Trustees
of Columbia University in the City of New York, 97 NLRB 424, for
research results. One phase of this program involves
the presentation of scientific seminars, addresses to
regional or national scientific meetings, and the
publication of scientific and technical papers either
in journals or government documents. In addition to
public presentations, the Foundation makes a
substantial contribution to the education and
training of students and candidates for advance
degrees in the field of medical research. Since its
organization, the Foundation has employed on its
payroll some 38 undergraduate students who have
received, through their jobs, noncredit training in
research techniques in various fields of medicine. At
the same time, nine master of science degree
candidates and three doctors of philosophy
candidates have engaged in research activities at the
Foundation. All of these candidates were from the
University of New Mexico. Although the Foundation
does not conduct actual graduate classes for credit
hours, the students' work in the Foundation's
laboratories relates to material which is applicable to
their areas and is necessary for obtaining the
advance degree. It is under the supervision of one of
the Foundation's senior scientists who participates
in the final examination of students prior to the
granting of the degree by the University.
Other aspects of the Foundation's educational
activities relate to the extern, staff exchange, and
residency programs carried on in conjunction with
the hospital and the clinic. Since 1952, 134 externs
(medical students spending time in laboratories or
hospitals before they receive their degree) have
participated in the extern program at the hospital
under the direction of the Foundation. The externs
participating in the program are paid a stipend of
$150.00 per month by the hospital and receive
housing withoug charge from the Foundation. The
Foundation's program is one that has been approved
by the University of Oklahoma School of Medicine
and the Jefferson Medical College, Philadelphia,
Pennsylvania. As to the staff exchange program,
since its affiliation with the Jefferson Medical
College in 1959, 21 professors from the college have
visited the Foundation to give lectures, participate in
grand rounds, see difficult cases, and exchange
information, while, during the same period, 16
members of the Foundation staff have visited the
college. The program is, of course, the hospital
based on graduate training program in an approved
hospital, and in the instant case, the hospital is
approved for residency training. Residency
programs in medicine or surgery would be spent
largely in the hospital, while other aspects of the
residency program such as basic research,
pathology, and radiology would be almost entirely
under the Foundation and the clinic. All of the
Supreme Court and Board noting of that legislative intent
J University of Miami, Institute of Marine Science Division, 146
NLRB 1448, Massachusetts Institute of Technology, 152 NLRB
598, The Leland Stanford Junior University, 152 NLRB 704
LOVELACE FOUNDATION 745
residency programs sponsored by the Foundation
are approved by the American Medical Association
Council on Medical Education.
In 1957, a program was founded which provides
for a postdoctoral fellowship in respiratory
physiology to a foreign national. This program is
entirely funded by the Foundation, and since its
origin, fellows from Sweden, Spain, West Germany,
United Kingdom, and Denmark, have participated in
the 1-year programs. In addition, an Atomic Energy
Commission postdoctoral fellowship has recently
been created for work in fundamental research.
In addition to the above, the Foundation has
carried on a visiting professors program whereby
outstanding educators and clinicians have presented
varying programs, other special courses limited to 3
to 5 days in length have been presented, and, in 1965
the council on medical education approved the
Foundation's Department of Radiology School of X-
Ray Technology. After 2 years of training in the X-
ray school, students are eligible for certification as
registered radiological technologists by the
American Board of Radiology under the American
Medical Association. To date, five students have
graduated from this school and are now registered
X-ray technologists. A similar program had been
operating until 1961 for clinical laboratory
technologists who actually received most of their
studies at the University of New Mexico with
practical training and instruction at the Foundation
and clinic.
From the above facts, it is clear that the
Foundation is engaged in pure basic medical
research with increased knowledge in varying fields
of medicine and the unfettered dissemination of this
knowledge as its only foreseeable goals. Because of
this, we conclude that Woods Hole Oceanographic
Institution,' upon which Petitioner relies, cannot be
controlling. Unlike the facts in Woods Hole, the
Foundation's research is not directly beneficial to
private industry, it does not exert a substantial
impact on commerce, and it does not play any
substantial or important part in our national defense
program. It is true that, unlike the M.I.T., Stanford
University, and University of Miami cases,5 the
Foundation is not immediately and directly
connected with an educational institution; however,
the Foundation's close relationship with a nonprofit
hospitals and its intimate involvement in nonprofit
basic medical research under the circumstances
described, including the dissemination of its
discovered knowledge, persuades us that it would
not effectuate the policies of the Act to assert
jurisdiction herein. Accordingly, we shall dismiss
the petition.
ORDER
IT IS HEREBY ORDERED that the petition filed
herein be, and it hereby is, dismissed.
4 143 NLRB 568
5 Supra, fn 3
6 Nonprofit hospitals are excluded from coverage by Section
2(2) of the Act.