Doctors' Hospital of Montclair

National Labor Relations Board - Board DecisionsMar 12, 1981

254 N.L.R.B. 1374 (N.L.R.B. 1981)

IR and & 1 -RC- function^,^ admini~trator .~ supervisor^,^ ' work.5 1 ~ o w e i e r , responsibility, t h e r e f r ~ m . ~ Wellesley Sec. 2(11) reg~stered "pet~tioned-for" provis~ons 011s Hospiral, Inc., 1374 DECISIONS OF NATIONAL LABC RELATIONS BOARD Doctors' Hospital of Montclair Retail Clerks Union Local 1428, chartered by the United Food Commercial Workers International Union, AFL-CIO, Petitioner. Case 3 4837 March 12, 1981 DECISION ON REVIEW AND DIRECTION On September 24, 1980, the Acting Regional Di- rector for Region 31 issued a Decision and Direc- tion of Election in the above-entitled proceeding in which he found appropriate a unit of all profession- al employees at the Employer's acute care general hospital, but excluding office clerical employees, physicians, registered nurses, contract employees, guards, all other employees, and supervisors as de- fined in the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer timely filed a request for review of the Acting Re- gional Director's decision with respect to the ex- clusion of the registered nurses from the unit of professional employees. By telegraphic order dated October 27, 1980, the Board granted the Employ- er's request for review. The Board has considered the entire record in this case, including the Employer's brief on review, and the Petitioner's opposition to the request for review, and makes the following findings: The Employer is a California corporation en- gaged in the operation of a proprietary acute care general hospital at its Montclair, California, facility. There is no history of collective bargaining. As found by the Acting Regional Director, the Employer employs approximately 250 full-time, and 150 part-time, employees at its 99-bed facility. The hospital is administratively organized into de- partments, based upon their respective each department being headed by only one individ- ual who reports directly to the The sole exception to this administrative arrangement is the nursing department, which has its own struc- tural hierarchy within its department. Thus, subor- dinate to the director of nursing, who reports to the administrator, is the assistant director of nurs- ing, followed by the nurse who are in The name o f the Petitioner appears as amended at the hearing. These departments are: respiratory therapy, dietary, clinical labora- tory, nursing, pharmacy, controller, radiology, personnel-payroll, cardio- pulmonary, physical therapy, materials management, medical records, physical plant services, and environmental services. The administrator reports to the governing board, which delegates the hospital's day-to-day operation t o him. Nurse supervisors hold various titles: head nurse, department or house supervisor, o r charge nurse. T h e parties stipulated that the 28 254 NLRB No. 175 charge of the various departments where nurses rountinely The Acting Regional Director also found that, of the nonsupervisory employees employed at the hospital, there are 8 medical tech- nologists (also referred to as laboratory technolo- gists), 3 pharmacists, registered dietician, and 52 registered nurses. Based upon the record evidence, the Acting Re- gional Director found the medical technologists, pharmacists, registered dietician, and registered nurses to be professional employees. and contrary to the contentions of the Employer, the Acting Regional Director found that the registered nurses herein, "possess a singular community of in- terest which is separate and distinct from that pos- sessed by the Employer's other professional em- ployees." Thus, the Acting Regional Director found that the registered nurses, unlike the Em- ployer's other professional employees, have work stations in several of the hospital departments, and that these registered nurses are supervised by nurses supervisors reporting to the director of nurs- ing, and are not supervised by the nonnursing heads of these departments. The Acting Regional Director further found that, unlike the pharmacists, dietician, or medical technologists, the registered nurses are responsible for all patient needs, and that, in order to carry out this the registered nurses are required to be on duty 24 hours per day, 7 days per week. In addition, and as found by the Acting Regional Director, registered nurses must take specialized training-either col- lege courses leading to a college degree or its equivalent-and then take and pass a special state . examination in order to fulfill their professional re- quirements. Thus, the Acting Regional Director concluded, based upon the facts of this case, in- cluding, inter alia, the job duties and conditions of employment characteristic of the registered nurses herein, that, on balance, the interests of the regis- tered nurses were sufficiently distinct from those of the employees in the petitioned-for unit to warrant exclusion of the registered nurses The Acting Regional Director cited Newton- Hospital, 250 NLRB 409 (1980); Dominican Santa Cruz Hospital, 218 NLRB 121 1 (1975); and Mercy nurses holding these positions are supervisors within the meaning o f o f the Act. For example, the operating room and recovery room, as well as the emergency room. Although the Petitioner sought t o exclude the dietician. w e shall at times refer t o the unit found appropriate (which included that classification) as the unit. T h e parties stipulated that the physicians should be excluded from any unit found appropriate and upon consideration w e conclude that in the health care industry w e will g i v e effect to all stipulations designating unit compositions that d o not contra- vene the o r purposes o f the Act or well-settled Board policies. 219 N L R B 164 (1975). MONTCLAIR lnc., (1975), se Newton-Welles- appr~pr ia te ."~ s t r u c t ~ r e ; ~ concomitant1 ' Newton-Welbley, in~ompatibility,~ supervisor10 ad- Prescrtpt~ons other Items plcked technlclnns l o clas51licatlon supervtsor" st~pulaled par- 11e5 rupervlsory. DOCTORS' HOSPITAL OF 1375 Hospitals of Sacramento, 217 NLRB 765 in support of his conclusion. The Employer, in its request for review, makes two contentions: that the Acting Regional Direc- tor's approach, in essence, reinstated the per rule that the Board rejected in Newton-Wellesley; and that the Acting Regional Director, in excluding the registered nurses from the professional unit found appropriate, did not properly apply ley. With respect to the Employer's first conten- tion, we disavow the Acting Regional Director's decision only to the extent that it might be read as reinstituting an irrebuttable presumption in favor of the appropriateness of separate registered nurse units without regard to the particular circum- stances of this case. Such a "per se" approach to unit determinations involving registered nurses was rejected by the Board in Newton-Wellesley. The Board in that case recognized, however, that "registered nurses can . . . possess such a community of interests as makes their separate representation Thus, the factors relied upon by the Board in Newton-Wellesley, wherein a separate unit of regis- tered nurses was petitioned for and found appropri- ate, included: the administrative separation of the registered nurses into a nursing division with a sep- arate administrative the close and con- tinuous contact among the registered nurses in Newton-Wellesley as opposed to the less frequent contact between the registered nurses and other professionals; the similar education, training, and work experience of the registered nurses; the simi- lar generalized skills possessed by the registered nurses enabling them to transfer throughout the Newton-Wellesley Hospital; the fact that only the registered nurses could serve in a "charge" capac- ity; the fact that the registered nurses had continu- ous contact with patients, as opposed to other pro- fessionals who had only limited patient contact; and the fact that the petitioning union in Newton- Wellesley represented only registered nurses at all other employers with whom it had a bargaining re- lationship. With respect to the Employer's second conten- tion, that the Acting Regional Director did not properly apply the holding of Newton-Wellesley, the Employer seeks to distinguish factually this case from Newton-Wellesley. Thus, the Employer argues in support of its contention that its facility is much smaller than the one in Newton- Wellesley and that there is y greater contact between the registered nurses herein and the other professional supra, a t 413. The structural division in Newton-Wellesley was required by Massa- chusetts state law. employees than in the former case; that the profes- sionals other than registered nurses in Newton- Wellesley numbered 143, whereas here the unit of professionals numbers only 12; that the nursing di- vision in Newton-Wellesley possessed a greater degree of administrative separation from the re- mainder of that employer's hierarchy than does the nursing division herein; that the record in Newton- Wellesley revealed a high degree of interchange and transfer among nursing positions; and finally, the petitioner in Newton-Wellesley represented separate units of registered nurses at other employers. Contrary to the Employer, however, we adopt the Acting Regional Director's conclusion that a unit of professional employees, excluding registered nurses, is appropriate herein. Taking into account the fact that the facility herein is smaller than the one considered in Newton-Wellesley, and that the professional staff is likewise less numerous, this smaller professional population is not characterized by an accompanying increase in the degree of con- tact between the registered nurses and the employ- ees in the petitioned-for unit so as to render that unit inappropriate. Thus, the record reflects that the pharmacists, who spend 90 percent of their day in the pharmacy, may on occasion contact a patient floor to inform either the doctor or the nurse of a drug and that pharmacists make "rounds" to ensure that pharmacy directions are being properly carried out. The record also re- flects, however, that the pharmacists interact pri- marily with the "head" or supervisory nurse, and do not assist or accompany other registered nurses in their usual duties involving patient care. In addi- tion, if medication or other pharmacy supplies are . needed at times when the pharmacy is closed, only the house is permitted to enter the pharmacy to obtain the needed items. Finally, al- though the record reflects that pharmacists partici- pate in "in-service" training of nurses, this occurs, at most, once or twice a month. Similarly, the in- teraction of the registered nurses with the regis- tered dietician is minimal in its frequency and infor- mational by nature. Thus, while the registered di- etician visits patients in connection with the devel- opment of therapeutic diets, the registered nurse does not accompany or assist the registered dieti- cian at these visits; and, acting only as a conduit between the registered dietician and the physician, the registered nurse contacts the registered dieti- cian to let her know that a current patient may be having some dietary difficulty, or that a new or requests for drugs or from the pharmacy are up by pharmacy The o f "house was by the to be in all^, nurses.12 Wellesley 8, I ' I z I S or reg~stered nurses' direred nurslng 1376 DECISIONS O F NATIONAL LABOR RELATIONS BOARD mission has certain dietary requirements. By con- trast, the registered dietician works more closely with the pharmacists. Thus, the registered dietician, in developing certain therapeutic diets, makes use of various nutritional supplements which are or- dered and maintained by the pharmacy. And while a doctor's prescription is not necessarily required to dispense these supplements, the registered dieti- cian often consults the pharmacist with respect to the advisability of using a particular supplement in response to a digestive disorder which might other- wise cause nutritional deficiencies. the record reflects that the medical technologists, also petitioned for herein, have minimal contact with the registered Thus, the record makes clear that the registered nurses herein are primarily involved in direct patient care, and that any inter- action with the employees in the petitioned-for unit is minimal and only incidental to that primary re- sponsibility. In response to the Employer's contention that the Newton- nursing division exhibited a greater degree of administrative separation from the other departments therein, we point out that Although the registered nurse signs a "Diet Advice" form which shows the dates of a patient's admission and discharge, as well as the type of diet required, it is the physician, or perhaps the registered dietician, who orders a particular diet, and not the registered nurse. The usual contact is by telephone when, for example, the technolo- gist is unable to read the handwriting on a request for a particular labora- tory procedure. each of the departments at this Employer's facility, including the nursing division, separately hires and sets schedules for its own employees. Having duly considered all of the record evi- dence we conclude, in accord with the Acting Re- gional Director, that a unit of professional employ- ees including pharmacists, medical technologists, and registered dietician, but excluding registered nurses, is appropriate for collective bargaining. DIRECTION It is hereby directed that the Regional Director for Region 31 shall, pursuant to the National Labor Relations Board Rules and Regulations, Series as amended, within 10 days from the date of this De- cision on Review and Direction, open and count the valid ballots cast in the election held on Octo- ber 31, 1980, and prepare and cause to be served on the parties a tally of ballots in accordance with Section 102.69 of the Board's Rules and Regula- tions, Series 8, as amended, which shall thereafter be applicable to the further processing of this matter. The Newton-Wellesley record additionally reflected a high degree transfer and interchange among positions. The record herein is silent with respect to that issue. As noted supra, the Employer herein contends that Newton-Wellesley from this case in that the petitioner there represented nursing units at other hospitals. The Petitioner herein, however, is not requesting a unit.