Dominican Santa Cruz Hospital

National Labor Relations Board - Board Decisions

May 13, 1992

307 N.L.R.B. 506 (N.L.R.B. 1992)

506
307 NLRB No. 91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only other issues raised in the request for review relate to
the supervisory status of the Employer’s charge nurses and the clin-
ical laboratory evening/night supervisor. Member Raudabaugh, dis-
senting in part, would grant review as to these issues.
9 See Appendix C. As set forth infra, the registered nurses, the
other professional employees and the non-professional employees
will be in Voting Groups A, B and C, respectively.
Dominican Santa Cruz Hospital and Operating En-
gineers Local Union No. 3 and California
Nurses Association, Petitioners. Cases 32–RC–
3421 and 32–RC–3426
May 13, 1992
ORDER DENYING REVIEW
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board Board has dele-
gated its authority in this proceeding to a three-mem-
ber panel. Petitioner Operating Engineers Local Union
No. 3’s request for review of the Regional Director’s
Decision, Direction of Election, and Order is denied as
it raises no substantial issues warranting review. Peti-
tioner Operating Engineers Local Union No. 3’s re-
quest to stay the election also is denied. Among the
issues raised by the request for review is the propriety
of the double self-determination election directed by
the Regional Director.1 In view of the novelty of this
issue, and the Regional Director’s discussion as to it,
with which we agree, we are attaching the relevant
parts of that decision as an Appendix.
APPENDIX
Scope of Unit
Operating Engineers Local Union No. 3, the Petitioner in
Case 3–RC–3421 (hereinafter referred to as Local 3), initially
petitioned to represent a collective-bargaining unit consisting
of ‘‘all unrepresented employees’’ employed by the Em-
ployer at its acute care hospital and rehabilitative services
center, excluding ‘‘chief engineers, assistant chief engineers,
boiler room foremen; biomedical electronics technicians,
watch maintenance engineers, gaurds [sic] and supervisors as
defined in the Act.’’ California Nurses Association, the Peti-
tioner in Case 32–RC–3426 (hereinafter referred to as CNA),
initially sought to represent all registered nurses employed by
the Employer at its acute care hospital, excluding supervisors
as defined in the Act. CNA clarified its petition at the hear-
ing to reflect that it was seeking to represent all registered
nurses at the rehabilitation services center as well as at the
hospital (with certain exceptions as set forth and discussed
below) and further amended its petition to exclude all other
employees and guards as well as supervisors.
During the hearing, the parties stipulated, and I find that
the registered nurses are professional employees within the
meaning of the Act. In addition, Local 3 and the Employer
identified and stipulated to the various classifications or posi-
tions held by other professional as well as non-professional
employees whom Local 3 seeks to represent.9 Neither Local
3 nor CNA seeks represent the physicians. The parties stipu-
lated that the physicians have a contractual rather than an
employee relationship with the Employer and that they
should be excluded from any unit found appropriate herein,
and I so find.
Local 3 acknowledges that Section 103.30 of the Board’s
Rules and Regulations specifies that a unit of ‘‘all registered
nurses’’ and of ‘‘all professionals except for registered nurses
and physicians’’ are two of the eight units that ‘‘shall be ap-
propriate units,’’ but nevertheless maintains that, in the cir-
cumstances presented here, it petitioned-for ‘‘wall-to-wall’’
unit (with certain exclusions as noted above and below and
subject to the professional employees, including registered
nurses, being given the opportunity to vote on whether or not
they wish to be included in a unit with non-professionals for
collective bargaining purposes) is the ‘‘most’’ and, therefore,
the ‘‘only’’ appropriate unit in view of the Congressional di-
rective against proliferation of units in the health care indus-
try and under both the Board’s traditional community of in-
terest test and its more recent disparity of interests test. Local
3 asserts that in a situation such as here, when two or more
labor organizations petition for competing, appropriate units
in the health care industry, an election should be directed in
only the broader, appropriate unit and the Board’s Rules and
Regulations governing bargaining units in the health care in-
dustry should be clarified to so provide. Local 3 further ar-
gues that preference should be given to the petition that was
filed first, as long as it is for an appropriate unit.
Alternatively, Local 3 submits that the smallest appropriate
units would be a unit of all professionals, including reg-
istered nurses, and a unit of all non-professionals. However,
without prejudice to its position that the ‘‘wall-to-wall’’ unit
is the most appropriate, Local 3 stated at the outset of the
hearing, that in certain circumstances, it would participate in
an election in a unit limited to registered nurses. This matter
is dealt with further in the Direction of Election.
CNA takes the position that, if any labor organization
seeks to represent employees in any one of the eight units
set forth as being appropriate in Section 103.3 of Board’s
Rules as CNA has with respect to the registered nurses, such
a unit is presumptively appropriate under the Health Care
Rule and must accordingly be found so even if another labor
organization seeks a combination of some or all of these
eight units, as Local 3 has done. CNA also stated at the hear-
ing that if its sought-for unit of registered nurses was not
found to be an appropriate unit, it did not wish to represent
or participate in an election involving any other units, even
if they consist in part of the registered nurses.
The Employer argues neither for or against the appro-
priateness of the units sought by Local 3 and CNA, recog-
nizing that various combinations of the units enumerated in
the Board’s Rule may also be appropriate, but only, as the
Board has indicated, ‘‘if sought by labor organizations.’’ See
284 NLRB at 1573, 1597. In addition, the Employer ac-
knowledges that no ‘‘extraordinary circumstances’’ exist that
would require a determination of appropriate units by adju-
dication.
507DOMINICAN SANTA CRUZ HOSPITAL
Nevertheless, as noted above, the Employer has requested
the undersigned to transfer these consolidated representation
cases to the Board for initial decision on the basis that there
is no guidance provided by the Board in either its health care
Rule or case law to resolve the ‘‘substantial policy ques-
tions’’ of ‘‘first impression’’ allegedly raised by the filing of
the petition in these cases. As posed by the Employer, the
first ‘‘policy question’’ is: ‘‘What is an appropriate unit
when one union seeks to represent nurses and another union
has petitioned for a ‘wall to wall’ unit that would include
those same nuses.’’ The other question raised by the Em-
ployer concerns election mechanics, asking what is the ap-
propriate procedure for holding a Sonotone election when
there are three possible voting groups: registered nurses,
other professional employees, and nonprofessional employ-
ees.
I find that transfer of these proceedings to the Board is not
warranted in the circumstances. I also reject the arguments
of Local 3 that the ‘‘wall to wall’’ unit it has petitioned for
is the most and/or only appropriate unit or that a unit of all
professionals and a unit of all non-professionals is the ‘‘next
most appropriate.’’ In making these arguments, Local 3 pri-
marily relies on various cases decided before the Board’s
Health Care Rule became effective, in which the Board re-
jected a separate unit for registered nurses in favor of an
overall unit of professionals as being the smallest appropriate
unit for collective bargaining purposes.
A review of the Board’s proceedings in formulating and
adopting the final health care Rule fails to reveal anything
that supports the position of Local 3 or otherwise precludes
a determination that a separate unit of registered nurses is an
appropriate unit. Nor is there a complete lack of guidance as
claimed by the Employer.
As the Board determined after exhaustive deliberation and
as the Rule plainly states, a unit of registered nurses is one
of eight units that ‘‘shall be appropriate units, and the only
appr priate units’’ for petitions filed pursuant to Section
9(c)(1)(A)(i) or 9(c)(1)(B) of the National Labor Relations
Act (footnote omitted).’’ 284 NLRB at 1543–1551, 1597. In
addition, the Board deliberately modified its original proposal
that ‘‘any combination [of units] will also be appropriate’’ to
provide instead that ‘‘various combinations of units may also
be appropriate [emphasis added].’’ In making this change,
the Board specifically noted that there was insufficient evi-
dence to find that ‘‘per se, all combinations should be found
appropriate or otherwise required under the Rule although it
observed that some combinations . . . would obviously be
appropriate, such as all professionals, or all non-profes-
sionals. 284 NLRB at 1573. But there is no suggestion that
preference must be given to broader combined units over the
separate enumerated units or even that a choice must be mad
between competing, appropriate units. The Board found that
‘‘the evidence does not warrant limiting the number of units
to two broad units of all professionals/all non-professionals.’’
284 NLRB at 1536.
Moreover, the Board expressly considered in the course of
its rulemaking whether a separate unit of registered nurses or
the alternative of an all-professional unit including registered
nurses would be appropriate and decided that the former was
‘‘appropriate for collective bargaining purposes.’’ 284 NLRB
at 1551. In reaching this conclusion, the Board noted that it
had considered its recent decision in St. Vincent Hospital and
Health Center, 285 NLRB 365 (1987), in which the Board
had held that a separate unit of registered nurses was inap-
propriate for reasons substantially the same as those given in
the cases cited by Local 3, and stated that in view of the evi-
dence presented during the rulemaking proceedings, ‘‘it
might well reach a different result in St. Vincent’’ for the
reasons discussed, in particular because it had ‘‘a far better
understanding of the RN’s training, functions, interests and
involvement in hospital operations, and of the actual and po-
tential ramifications.’’ 284 NLRB at 1551, n. 22.
Moreover, the Board made very clear that Congress’ ad-
monition against proliferation of health care bargaining units
was ‘‘kept firmly in mind’’ and ‘‘carefully considered’’ in
formulating its health care Rule and that the Board was ‘‘sat-
isfied’’ that the eight ‘‘health care units established by the
Board do not constitute proliferation either in terms of the
legislative history of the amendments or in the context of the
history or realities of the industry.’’ 284 NLRB at 1522,
1535, 1536, 1575, 1593–1595. At the same time, the Board
emphasized ‘‘its statutory mandate to make unit determina-
tions ‘in order to assure to employees the fullest freedom in
exercising the rights guaranteed by [the] Act’ [footnote omit-
ted].’’ 284 NLRB at 1522.
In addition, Local 3 has failed to demonstrate that there
are extraordinary circumstances warranting an exception
being made in the application of the Board’s health care Rule
to the situation presented here. Its arguments are not substan-
tially different from those the Board considered at length
during the rulemaking proceedings. It has not shown that the
Employer or these cases are so ‘‘uniquely situated’’ or devi-
ate in such ‘‘unusual and unforeseen’’ ways from the range
of circumstances already examined by the Board to require
individual treatment or separate adjudication. The fact that
the Employer does not have a nursing department to which
the registered nurses are the only professionals assigned is
not sufficient to invoke the exception. The record reflects
that one of the four divisions is often referred to as the nurs-
ing division. Sister Michaella Siplak, the current vice-presi-
dent of that division, is a registered nurse and held the posi-
tion of Director of Nurses until a reorganization resulted in
the elimination of that title. It appears that a majority of the
registered nurses work in the departments/units overseen by
her. Even though other professionals work in the nursing di-
vision and some registered nurses work in departments that
are in divisions under other vice-presidents, these variations
or differences apear to be relatively minor and ordinary rath-
er than the extraordinary circumstances that would make ap-
plication of the Board’s Health Care Rule unjust. See 284
NLRB at 1573, 1574.
Nor do I find the fact that CNA seeks to exclude from its
petitioned-for unit those registered nurses who do not have
direct patient care duties or functions, but rather perform
other administrative functions, to be either unusual, see, e.g.,
Ralph K. Davies Medical Center, 256 NLRB 1135 (1981),
or precluded by either the intent or application of the Board’s
Health Care Rule. These are merely unit placement issues.
Finally, I am not persuaded by either the Employer or
Local 3 that having two unions petition for ‘‘competing, ap-
propriate’’ units is so unique or extraordinary as to require
special or preferential treatment being given to these two
cases. As the Board has often stated, ‘‘The Act does not re-
quire that the unit for bargaining be the only appropriate unit
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or the most appropriate unit. Rather the Act requires only
that the unit be ‘appropriate’ (footnote omitted).’’ See e.g.,
Dominican Santa Cruz Hospital, 218 NLRB 1211, n. l; see
also Family Doctor Medical Group, 226 NLRB 118, 120, n.
18 (1976). In promulgating its Health Care Rule, the Board
has not significantly changed or modified that proposition,
either generally or specifically, for the health care industry,
but rather has reaffirmed it. Moreover, in Family Doctor
Medical Group, supra, the Board noted that the creation of
two separate units, one for registered nurses and another for
all professional employees, excluding registered nurses, ‘‘are
appropriate when they are so sought.’’ 226 NLRB at 120. In
that case, however, these separate units were being sought by
the employer and not the union, which had petitioned for a
single unit encompassing all employees. In finding that a unit
of professionals, including nurses, constituted an appropriate
bargaining unit, and providing for those employees to vote
separately on their inclusion within the unit of nonprofes-
sional employees found appropriate, the Board noted that the
separate units referred to above had not been ‘‘sought’’ (i.e.
by the union) in that case. However, in the present case, one
of the unions, CNA, has ‘‘sought’’ at least one of these sepa-
rate units. Moreover, in promulgating its Rule, the Board
specifically finds and provides that separate units of all reg-
istered nurses and of all professionals except for registered
nurses are two of eight units that ‘‘shall be’’ appropriate if
sought by a labor organzation and that various combinations
of units ‘‘may also be’’ appropriate if sought by a labor or-
ganization, with some combinatins, such as allprofessionals,
all non-professionals, being ‘‘obviously appropriate.’’ Con-
sequently, I do not find anything in the Board’s rulemaking
proceedings or Health Care Rule that supports Local 3’s po-
sition that its petitioned-for unit is more appropriate or
should otherwise be given preference because its petition was
filed first. The appropriateness of alternative units is no
longer the issue under the Health Care Rule and will not be
examined unless a labor organization seeks to represent
‘‘other, more unusual combinations.’’ 284 NLRB at 1573.
That is not the case here.
Accordingly, I conclude that under Section 103.30 of the
Board’s Rules and Section 9 of the Act, and in the cir-
cumstances presented, I am not precluded from finding that
not only are separate units of registered nurses and all pro-
fessionals except registered nurses and physicians appropriate
here, but that units of all professionals except physicians and
all non-professionals as well as a ‘‘wall-to-wall’’ unit would
also be appropriate. However, inasmuch as the wishes of the
registered nurses and the other professional employees are
critica1 in this matter, a final unit determination cannot be
made at this time but is dependent on the results of the elec-
tions directed in the voting groups as set forth below.
In reaching this conclusion, I have also considered the sec-
ond question raised by the Employer regarding what is the
appropriate procedure for conducting an election where there
are three voting groups, two of which consist of professional
employees. Although this particular situation does not appear
to have arisen before, I disagree with the Employer’s asser-
tion that there is no guidance available from the Board for
resolving this problem.
The Employer notes that the Board has previously raised
but not passed on the question ‘‘whether, in the absence of
a separate petition seeking registered nurses only, we would
direct an election in an overall professional unit, including
registered nurses, if such a unit were sought, or whether, if
we did, we would allow the nurses a voice as to whether
they wished to be included in a unit with other profes-
sionals.’’ The Board further stated that it did not mean to
suggest by the foregoing quoted language that ‘‘if only an
all professional unit is sought, nurses may possibly be given
a separate vote entitling them to remain unrepresented.’’
Mercy Hospitals of Sacramento, 217 NLRB 765, 769 n. l8
(1975). Unlike that case, however, in the present case, not
only is there a petition by Local 3 for a ‘‘wall-to-wall’’ unit
that implicitly seeks to represent an all professional unit, in-
cluding nurses, should the professionals vote not to be in-
cluded with non-professionals for collective bargaining pur-
poses, but there is also a ‘‘separate petition seeking reg-
istered nurses only,’’ which was filed by CNA. In these cir-
cumstances, it appears appropriate and suitable to offer the
registered nurses the opportunity to choose between represen-
tation in separate unit or inclusion in a unit of all profes-
sionals (with, if inclusion is voted for, the additional oppor-
tunity to then choose along with the other professionals
whether to be included in an overall unit with non-profes-
sionals for collective bargaining purposes). Cf. Syracuse Uni-
versity, 204 NLRB 641 (1973). If the registered nurses do
not vote for representation in a separate unit of registered
nurses, they must then be given the opportunity along with
the other professionals to choose whether the professionals
wish to be included in an overall unit with non-professionals
for collective bargaining purposes, as required by the Board’s
decision in Sonotone Corp., 90 NLRB 1236 (1950).