Bay Medical Center, Inc.

National Labor Relations Board - Board DecisionsJun 18, 1975

218 N.L.R.B. 620 (N.L.R.B. 1975)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bay Medical Center, Inc. andLocal 486, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and Helpers of America, Ind., Petition- er.) Cases 7-RC-12687, 7-RC-12734, and 7-RC- 12740 June 18, 1975 DECISION, ORDER , AND DIRECTION OF ELECTION Upon petitions duly filed pursuant to Section 9(c) of the National Labor Relations Act, as amended, a hearing in these consolidated cases was held before Hearing Officer Charles F. Morris of the National Labor Relations Board. Following the close of the hearing, the Regional Director for Region 7 trans- ferred these consolidated cases to the Board for decision . Thereafter, the Employer, the Petitioner, and the Intervenors filed briefs. The Board has reviewed the Hearing Officer's rulings made at the hearing and fmds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, includ- ing the briefs filed herein, the Board finds: 1. The parties stipulated that the Employer is a nonprofit corporation engaged in the operation of hospitals in Bay City, Michigan. During the calendar year preceding the hearing, the Employer received gross revenues in excess of $500,000 and during the same period it purchased in excess of $20,000 in goods and supplies from concerns located outside the State of Michigan. Accordingly, in view of the Employer's substantial effect on commerce, we find that it is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concern- 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. Since July 1972, the Employer has operated two hospitals, Mercy and General, located approxi- mately 1-1/2 miles apart . Prior to July 1972, Mercy was a nonprofit corporation operated by the Sisters of Mercy and General was a nonprofit corporation operated by a private board of trustees . The State refused to relicense either Mercy or General because their buildings were too old. Therefore, in July 1972, the Employer acquired both hospitals, merged them into a single corporation, and was granted a single operating license by the State. A condition of the license is that the Employer erect a new building to house the complete operations of Mercy and General by 1977. Planning for such a facility began in September 1974. Architect's plans were drawn and approved and financing has been arranged. Ground breaking is scheduled for June 1975. The Employer administers the operations of its Mercy and General "divisions" from a central administrative office. Corporate affairs are managed by a president, vice president, and board of trustees. Operationally, an administrator and a personnel and labor relations manager establish and administer common personnel and labor relations policies for all employees. Thus, all employees at Mercy and General share common wage scales, fringe benefit programs, job classifications, duties, working condi- tions, and rules, all of which are set forth in an employee manual. While most employees are hired for a particular hospital, some hiring is done centrally, with subse- quent assignment to either Mercy or General, and all hiring policies and procedures are established cen- trally. Job openings at both hospitals are open to bidding by employees at both,` and the record contains evidence that an undisclosed number of full-time employees at each hospital work as part- time employees at the other hospital. In addition, the record establishes a degree of employee interchange in the nursing, x-ray, maintenance, and dietary departments at both hospitals and the merger of several medical service departments.2 The Employer has executed collective-bargaining agreements with several unions, none of which has been certified by the Board. These unions have represented various segments of employees at Gener- al since at least July 1972, and continue to represent them at the present time. Thus, the Employer has collective-bargaining agreements with Intervenor MLPNA covering all LPN's at General, which runs from March 1, 1974, to February 28, 1977; with Intervenor Local 688 covering all housekeeping, maintenance, and dietary employees, nurses aides, ward secretaries, and orderlies employed at General, which runs from March 8, 1974, to January 1, 1977; and with Michigan Nurses Association covering all registered nurses at General, which runs from March 1, 1974, to December 31, 1976. I Hospital Employees ' Division , Service Employees International Union, with respect to various of the petitions, on the basis of sufficient showings of Local 79, AFL-CIO (hereinafter referred to as Local 79); Catering Industry, interest. Hospital Workers and Bartenders Union, Local 688, AFL-CIO (hereinafter 2 While most medical service departments at Mercy and General have referred to as Local 688); and Michigan Licensed Practical Nurses not merged , the record indicated that at the time of the hearing the Ob-Gyn, Association (hereinafter referred to as MLPNA) were granted intervention emergency and ambulance services , admissions , purchasing, and storage 218 NLRB No. 100 departments at both hospitals had been merged into single respective departments. BAY MEDICAL CENTER, INC. 621 In Cases 7-RC-12687 and 7-RC-12734, the Petitioner - has filed petitions seeking to represent separate units of technical employees at Mercy and General who are presently unrepresented for collec- tive-bargaining purposes. Alternatively, the Petition- er has expressed a willingness to represent a single overall unit of technical employees at both hospitals. In Case 7-RC-12740, the Petitioner seeks to repre- sent a unit of housekeepers, janitors, and linen aides at Mercy.3 Cases 7-RC-12687 and 7-RC-12734: The record establishes that technical employees employed at Mercy and General work exclusively in their respec- tive departments and have little or no contact with other hospital employees. All technical employees are separately supervised by fellow technicians and all have had 2 or 3 years of specialized training in a junior college or university and a year of in-service training at a hospital. Their work consists of performing highly specialized technical tests and procedures to obtain information used by doctors in connection with the care and treatment of patients. Although some technical employees have obtained certification from various private associations, there is no state licensing requirement for technicians, and all technical employees, regardless of certification, perform identical work. Based on the above evidence, which establishes that the technical employees share a community of interest among themselves, we find that a unit consisting of all technical employees would be appropriate in this case. However, in view of the factors discussed above which establish functional integration between the operations of Mercy and General, i.e., common overall supervision, common personnel and labor relations policies, common wages, benefits, duties, and job classifications shared by all employees, open bidding by-employees at both hospitals for jobs at either one, and substantial employee transfer and integration between facilities, including the merger of several departments into single ones, and that the two hospitals eventually will be merged into one in a couple of years, we find that the appropriate bargaining unit should encompass technical employees at both hospitals. Accordingly, we conclude that a single overall unit of all technical employees employed by the Employer at Mercy and 3 The Employer apparently agrees with the Petitioner that an all technical unit at General is appropriate , but argues that the other petitions be dismissed because they,,seek artificial fragmented units of employees at Mercy, Intervenor Local 79 urges that all the petitions be dismissed, contending that the Employer is in reality operating two separate hospitals and that the appropriate units should consist of all patient care employees at General and all unrepresented patient care employees at Mercy. Intervenor Local 688 contends that its contract covering housekeeping and mainte- nance employees at General is a'bar to an election im Case 7-RC-12740 and General is appropriate and we shall direct an election therein. In doing so, however, we recognize that in Barnert Memorial Hospital Center,4 and St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc.,5 a majority of the Board found appropriate units of technical employees including LPN's. While a majority of the Board still adheres to the view that LPN's properly belong in a unit with other technical employees, it is not so wedded to it that it will blindly require the inclusion of LPN's in every situation in which a unit of technical employees is sought. Exception will be made where circumstances warrant it. The instant case, in our view, qualifies as such an exception. Thus, we find, for the reasons set forth below, that in this case it would be error to include LPN's in the technical unit found appropriate above. In reaching its decision to include LPN's in the technical unit in St. Catherine's, the Board majority relied on, inter alia, the absence of any separate bargaining history for the LPN's. In the instant case, the record indicates an established bargaining history among the LPN's at General who are currently represented for collective-bargaining purposes by Intervenor MLPNA, which has a contract with the Employer that' will not expire until February 1, 1977. We do not desire to upset the stability inherent in that bargaining relationship by disenfranchising the LPN's at General and including them in the above technical unit. Nor do we think it proper to include in the above technical unit the LPN's at Mercy who are currently unrepresented. Such a finding would have the anomalous effect of fractionalizing the representation of the LPN's employed by the Employer, a state of affairs which we are congres- sionally mandated to avoid. (However, we wish to reiterate that our exclusion of LPN's from this technical unit is restricted to the facts of this particular case.) The parties could not agree on the placement in the technical unit of several individuals whom the Employer contends are supervisors. The Employer argues that the section heads in the laboratory are supervisors, contending that they participate in the hiring process and in the evaluation and promotion of employees. The record establishes that, while they have not regularly participated in the hiring process, section heads have recently been further argues that the employees sought in that petition should be accreted to the existing unit of similarly classified employees at General . Intervenor MLPNA argues that the unrepresented LPN's at Mercy should be accreted to its unit of LPN's at General and further contends that LPN's should be represented in a bargaining unit separate from all other hospital 'employees. 4 Nathan and Miriam Barnert Memorial Hospital Association d/bla Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975). 5 St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc., 217 NLRB No. 133 (1975). 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present at employment interviews and were asked to make recommendations regarding the hiring of the last three applicants. These recommendations were followed. The record also establishes that section heads evaluate the work performance of employees and recommend them for promotions, and that these recommendations have always been followed. In addition, section heads give verbal warnings to employees concerning tardiness and absenteeism, although more severe disciplinary matters are re- ferred to the division supervisor or lab administrator who has final authority over such matters as well as over work assignments, overtime, early dismissals, and time off. However, inasmuch as the record establishes that the section heads participate in the hiring of employees, evaluate them and effectively recommend promotions, we find that they exercise supervisory authority and are therefore supervisors within the meaning of the Act. We shall therefore exclude them from the unit. The record establishes that the two senior x-ray technicians/assistant supervisors, one each at Mercy and General, spend about one-fourth of their time filling in for the division supervisor, but only in limited respects. While the Employer contends that these individuals are authorized to exercise the full scope of supervisory authority regularly exercised by the division supervisors, the record establishes that they do not in fact exercise any such authority but merely route patients to preassigned rooms. The record further establishes that senior x-ray techni- cians/assistant supervisors are laboratory technicians and receive the same rate of pay as other laboratory technicians. Accordingly, we find that to the extent that these individuals direct the work of other technicians in the laboratory they do so merely in the capacity of leadman as a result of their being more experienced than other technicians. We therefore conclude that senior x-ray technicians/assistant supervisors are not supervisors within the meaning of the Act and we shall include them in the above technical unit. The Employer contends that the nuclear medicine supervisor should be excluded from the Act on the basis of alleged supervisory status. However, the record is inadequate for us to determine the extent of the supervisory authority exercised by the nuclear medicine supervisor or the extent of his possible professional status. The only thing the record shows is that the nuclear medicine supervisor works in the nuclear medicine department' which is part of the radiology department. Prior to this year, he worked alone, but during that time four other technicians, who received training elsewhere, have begun working in the nuclear medicine department on a rotating basis. While the record indicates that the nuclear medicine supervisor gives routine and instructional direction and help to the rotating technicians, the record does not establish with clarity whether the nuclear medicine supervisor exercises any superviso- ry authority over these other technicians. According- ly, under the above circumstances, we shall permit the nuclear medicine supervisor to vote subject to challenge. The Employer would also exclude the x-ray office supervisors from the unit because of their alleged supervisory authority over certain laboratory em- ployees. The record establishes that the x-ray office supervisors are clerical employees working in the x- ray department. They perform no duties which are performed by technicians; rather, their duties are restricted to typing papers for the radiologists and directing the work of other laboratory clerical employees, known as transcribers, who also type reports for the radiologists. In view of this evidence, we need not pass upon the question of whether the supervisory authority, if any, exercised by the x-ray office supervisors over the transcribers warrants their exclusion from the above technical unit inasmuch as the record adequately establishes that the x-ray office supervisors are clerical rather than technical employ- ees. Accordingly, we shall exclude the x-ray office supervisors from the technical unit herein. The Petitioner took no position concerning the placement of x-ray department students and the Employer urged that they be excluded from any unit found appropriate. The record establishes that these students receive training in the laboratory but receive no pay or fringe benefits. Therefore, we find that they do not share a community of interest with the technicians who comprise the unit herein found appropriate and we shall exclude x-ray department students from the unit. Accordingly, for the reasons stated above and upon the entire record, we find that the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All technical employees employed by the Em- ployer at its Mercy and General Divisions, Bay City, Michigan; but excluding all other employ- ees, guards, and supervisors as defined in the Act. Case 7-RC-12740.- Based on the record evidence, we find that the petitioned-for unit of housekeepers, janitors, and linen aides at Mercy is inappropriate and the petition should be dismissed . Ordinarily, because of the factors establishing functional integra- tion between the operations of Mercy and General, we would, as we did concerning the technical employees, find that any service and maintenance BAY MEDICAL CENTER, INC. 623 unit sought should encompass employees at both hospitals, and thus this petition would be dismissed because it seeks a unit substantially less than that one. However, as noted previously, because many of the service and maintenance employees at General are currently represented for collective-bargaining purposes under contracts which will not expire until 1977, we have no desire to disturb the stability of the bargaining relationship presently existing concerning those employees by fmding that a single unit of service and maintenance employees at both hospitals is the only appropriate one.6 In any event, for the purposes of this case we do not find it necessary to decide the appropriateness of the above petitioned- for unit on that basis. The instant petition does not even seek to encompass all of the service and maintenance employees at Mercy, the facility at which the petitioned-for employees are working, but instead seeks to represent a fragmented part of such a unit.7 Thus, assuming arguendo that a separate unit of all service and maintenance employees at Mercy would be appropriate under the circumstances here, where similar classifications at General are currently represented in a separate unit under a contract effective until 1977, we still could not find the more limited unit sought to be appropriates Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition in Case 7- RC-12740 be, and it hereby is, dismissed. [Direction of Election omitted from publica- tion.]9,10 MEMBERS KENNEDY AND PENELLO, dissenting: For the reasons set forth in our dissent in Barnert Memorial Hospital Center,11 we disagree with our 6 We also do not wish to disturb the other bargaining units, discussed above, previously established at the two hospitals by virtue of separate bargaining histories . Those units are not now before us for consideration. However , this should not be taken to mean that in the future , if the issue as to their respective appropriateness is properly and timely raised, we will place our imprimatur on such preexisting units. 7 See Newington Children's Hospital, 217 NLRB No. 134 (1975). a Our finding herein should not be construed as indicating our approval or disapproval of a separate unit of service and maintenance employees at Mercy. In the circumstances of this case , we need not, and do not, decide that issue. It is sufficient for our purposes here to note that the petitioned- for unit is inappropriate. 9 [Excelsior fn. omitted from publication.] 10 Neither Intervenor Local 688 nor Intervenor MLPNA expressed any interest in participating in an election among technical employees. 11 217 NLRB No. 132 (1975). 12 217 NLRB No. 133 (1975). 13 LPN's at General are currently represented for collective-bargaining purposes by Intervenor MLPNA, which has a contract with the Employer that will not expire until February 1, 1977. 14 In both the House and Senate Reports concerning the health care colleagues ' fmding that a single unit of all technical employees employed by the Employer at Mercy and General is appropriate. We agree, however, with their decision to dismiss the petition for a unit of housekeepers, janitors, and linen aides at Mercy. In fmding the overall technical unit to be appropri- ate herein, our colleagues conclude "that in this case it would be error to include LPN's in the technical unit." By failing to include the LPN's, our colleagues appear to be departing from their majority position, as stated in Barnert, supra, and in St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc.,12 wherein it was held that technical employee units must include LPN's. Our colleagues attempt to justify their exclusion of LPN's by labeling the instant case as an exception to the general rule.13 In our judgment, the granting of a separate unit for technical employees, whether or not it includes LPN's, is contrary to the congressional mandate to avoid undue proliferation of bargaining units in the health care industry.14 Mindful of the clear mandate from Congress to establish broad units in this industry, we would require all technical employees to be included in a broad service and maintenance unit.15 Accordingly, we would dismiss the petitions seeking to represent separate units of technical employees at Mercy and General. Our colleagues have properly decided to dismiss the petition for a unit of housekeepers, janitors, and linen aides at Mercy.16 In dismissing the petition, the majority notes that the Petitioner seeks to represent only a fragmented portion of the service and maintenance employees at Mercy. Assuming arguen- do that a separate unit of all service and maintenance employees at Mercy would be appropriate under the circumstances herein, the majority concludes that the amendments , Congress expressly approved of the Board 's decision in Extendicare of West Virginia, Inc., d/b/a St. Luke's Hospital, 203 NLRB 1232 (1973), to establish broader units in this industry by including technical employees in a unit of service and maintenance employees. S. Rept 93-766, 93d Cong., 2d sess. 5 (1974); H. Rept. 93-1051, 93d Cong. 2d sess. 7 (1974). 15 See Member Penello's separate concurring opinion in Mount Airy Foundation, d/b/a Mount Airy Psychiatric Center, 217 NLRB No. 137 (1975). See also fn. 11 in Member Kennedy's dissent in Mount Airy, wherein he stated that he is "in complete agreement with the views expressed by Member Penello in his separate opinion with respect to the inclusion of `licensed, certified, or registered' employees and the LPN's in a service and maintenance unit." 16 In view of the peculiar circumstances of this case , where service and maintenance employees at General are currently represented for collective- bargaining purposes under contracts which will not expire until 1977, we agree with our colleagues' decision finding it unnecessary to decide the appropriateness of the above petitioned-for unit on the basis that a single unit of service and maintenance employees at both hospitals is the only appropriate one. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition would have to be dismissed because of its assuming arguendo that a service and maintenance failure to include all service and maintenance unit would be appropriate under the circumstances employees employed at Mercy . We agree with this of this case, we would require, unlike our colleagues, conclusion as stated by our colleagues . However, that all technical employees be included in the unit.