Mercy Hospitals of Sacramento, Inc.

National Labor Relations Board - Board Decisions

May 5, 1975

217 N.L.R.B. 765 (N.L.R.B. 1975)

MERCY HOSPITALS OF SACRAMENTO, INC.
Mercy Hospitals of Sacramento , Inc. and Local 250,
Hospital & Institutional Workers Union , Service
Employees International Union, AFL-CIO,
Petitioner.' Cases 20-RC-12299, 20-RC-12300,
20-RC-12301, and 20-RC-12302
May 5, 1975
DECISION ON REVIEW AND DIRECTION OF
ELECTIONS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a con-
solidated hearing was held before Hearing Officer Earl
D. Brand of the National Labor Relations Board. On
December 10, 1974, the Regional Director for Region
20 issued a Decision and Direction of Elections in
which he found appropriate three separate bargaining
units consisting of professional employees, service and
maintenance employees, and office clerical employees,
respectively. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, requests for
review of the Regional Director's Decision and Direc-
tion of Elections were filed by the Petitioner jointly
with Intervenor Stationary Engineers, Local 39, Inter-
national Union of Operating Engineers, AFL-CIO
(hereinafter referred to as Local 39), by Intervenor
California Association for Medical Technology, Engi-
neers and Scientists of California, MEBA,
A]FL-CIO (hereinafter referred to as CAMLT), and by
Intervenor California Nurses' Association (hereinafter
referred to as CNA), contending, inter alia, that the
Regional Director's findings as to the appropriate units
raiised substantial questions of law and policy and were
based on erroneous factual findings and that there are
compelling reasons for establishment of Board rules
and policies in this area. In their request for review,
Petitioner and Local 39 requested oral argument as to
the issues raised on review. Thereafter, the Employer
filed a brief in opposition to the requests for review.
On January 16, 1975, the Board, having determined
that this and a number of other cases in the health care
industry presented issues of importance in the adminis-
tration of the National Labor Relations Act, as
amended, scheduled oral argument in several of the
cases, including this one, as well as oral argument on
the general question of the composition of appropriate
bargaining units in the health care industry.' Oral ar-
I The names of the Employer and the Petitioner appear as amended at the
hearing
2 California Association for Medical Technology, Engineers and Scien-
tists of California, MEBA, AFL-CIO; Stationary Engineers, Local 39, Inter-
national Union of Operating Engineers, AFL-CIO; and California Nurses'
Association were granted intervention with respect to various of the peti-
tion s, on the basis of sufficient showings of interest.
765
guments were heard on January 27, 1975. Briefs amici
curiae were filed by interested parties and have been
duly considered by the Board.
By telegraphic order dated February 4, 1975, the
Board granted the Petitioner's and the Intervenors' re-
quests for review and stayed the elections pending deci-
sion on review.
The Board has considered the entire record in this
case, with respect to the issues under review, including
the oral arguments and the amicibriefs, and makes the
following findings:
The Employer operates a long-term geriatric care
facility, Mercy Convalescent Hospital, located in Sac-
ramento, California, adjacent to its two acute care
facilities, Mercy General Hospital and Mercy Chil-
dren's Hospital. The parties agreed that Mercy Con-
valescent Hospital and Mercy Children's Hospital
should be considered as part of the operations of Mercy
General and the three facilities are hereinafter referred
to as Mercy General. The Employer also operates a
third acute care facility, Mercy San Juan Hospital
(hereinafter referred to as Mercy San Juan), at Carmi-
chael, California, approximately 13 miles from Sac-
ramento.
The petitions in the instant case sought a number of
separate units of employees at Mercy General, and
Mercy San Juan. Contrary to the positions of the Peti-
tioner and the Intervenors, however, the Regional Di-
rector found, and we agree, that Mercy General and
Mercy San Juan constitute a single employer within the
meaning of the Act and that the appropriate bargaining
units should consist of employees at both facilities.
The record establishes considerable functional and
operational integration between Mercy General and
Mercy San Juan. Thus, Mercy General and Mercy San
Juan constitute a single corporation and a single gov-
erning board controls the overall operations of both
facilities. Although each facility is separately adminis-
tered and maintains a separate personnel department,
employees at both facilities are subject to uniform per-
sonnel and labor relations policies, fill out identical job
applications and personnel forms, and share common
job classifications, wage scales, and benefit programs.
In addition, job vacancies are posted in both facilities
and preference is given to current employees who may
transfer or be promoted to positions in either facility
without loss of seniority.
The record also establishes that Mercy General and
Mercy San Juan share such common internal services
as laundry, receiving, purchasing, data processing, bill-
ing, and accounting. These services are administered
through a single Shared Services Department and em-
ployees in each of these service departments are com-
monly supervised and frequently and regularly inter-
3 Member Kennedy dissented from the grant of oral argument
217 NLRB No. 131
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change between facilities as needed. In addition, one
bakery and one printshop located at Mercy General
serve both facilities.
Although there are some differences in the medical
services offered by Mercy General and Mercy San Juan
which require somewhat different skills and supervi-
sion, the record does establish that Mercy General and
Mercy San Juan regularly interchange supplies, equip-
ment, and support personnel in connection with the
operation of surgical and inhalation therapy services.
Both facilities also utilize the same outside contractors
for-physician services in the x-ray and nuclear medicine
departments and in the emergency rooms.
In view of the above factors which establish func-
tional integration between the operations of Mercy
General and Mercy San Juan, common overall ad-
ministration, common personnel and labor relations
policies, common wages, benefits, and job classifica-
tions shared by all employees, common supervision in
some areas, and substantial employee transfer and inte-
gration between facilities, we find that the appropriate
bargaining units should encompass employees at all of
the Employer's facilities.'
The Appropriate Units
1. Professional employees
a. Registered nurses
The Petitioner petitioned to represent all registered
nurses employed at Mercy General. Intervenor CNA
sought to represent a single unit of all registered nurses
employed at both Mercy General and Mercy San Juan.
The Regional Director, in agreement with the Em-
ployer's position, found that the appropriate profes-
sional bargaining unit must consist of all professional
employees, including registered nurses,' employed at
both of the Employer's facilities. In the circumstances
of This case, we reach a different conclusion.
To be sure, the principal thrust of the legislative
history of the health care amendments to the Act ad-
monishes the Board to avoid undue proliferation of
bargaining units in the health care industry. Thus, the
Senate Committee Report states:
- Due consideration should be given by the Board
to preventing proliferation of bargaining units in
the health care industry. In this connection, the
4 Although, as noted previously, the petitioned-for units consisted of
employees at one or the other of the Employer's facilities, we note that, at
the oral argument, counsel for the Petitioner and the Intervenors expressed
the view that there was sufficient evidence herein to support the Regional
Director's findings concerning the scope of the bargaining units and that, for
the purposes of the instant case, they would not seek review of the Regional
Director's finding in this respect.
5 The parties stipulated that registered nurses are professional employees
within the meaning of Sec 2(12) of the Act
Committee notes with approval the recent Board
decisions in Four Seasons Nursing Center, 208
NLRB No. 50 . . . (1974), and Woodland Park
.Hospital, 205 NLRB No. 144. . . (1973), as well
as the trend toward broader units enunciated in
Extendicare of West Virginia, 203 NLRB 1232
... (1973).'
1 By our reference to Extendicare, we do not necessarily approve all of
the holdings of that decision 6
Senator Taft characterized this statement as designed
"to stress the necessity to the Board to reduce and limit
the number of bargaining units in a health care
institution."' Senator Taft further directed the Board
to expend "every effort .. . to prevent a proliferation
of bargaining units in the health care field. . . ."'
Thus, our consideration of all issues concerning the
composition of appropriate bargaining units in the
health care industry must necessarily take place against
this background of avoidance of undue proliferation,
particularly at the commencement of our establishment
of units in hospitals, when our experience with this
industry and its employment relations is in its infancy.
However, despite this clear statement by the Con-
gress, we are constrained to view the legislative history
as not precluding the Board from finding appropriate
separate bargaining units for registered nurses when
they are sought to be represented on that basis. We
note, first, that portions of the legislative history indi-
cate that Congress, in the final analysis, left the matter
of the determination of appropriate units to the Board.
Congress rejected Senator Taft's specific suggestion
that all professional employees should by law be in-
cluded in a single bargaining unit.' We also view
Senator Williams' statement on behalf of the Senate
Conferees as indicative of Congress' willingness to al-
low the Board some latitude in determining the compo-
sition of appropriate units in the health care industry
based on the weighing of such traditional standards as
"interests between employees in different job classifica-
tions." Senator Williams stated:
.. . the National Labor Relations Board has
shown good judgment in establishing appropriate
units for the purposes of collective bargaining,
particularly in wrestling with units in newly cov-
ered industries. While the Board has, as a rule,
tended to avoid an unnecessary proliferation of
collective bargaining units, sometimes circum-
6 S. Rept. 93-766, 93d Cong., 2d sess 5 (1974), see also H Rept
93-1051, 93d Cong, 2d sess. 7 (1974). -
7 120 Cong Rec S 6940 (1974)
8 120 Cong. Rec S 7311 (1974)
9 Senator Taft's bill (S. 2292, 93d Cong., 1st sess. (1973)) provided for no
more than four appropriate bargaining units in the health care industry. (1)
all professional employees; (2) all technical employees, (3) all clerical em-
ployees, and (4) all service and maintenance employees.
MERCY HOSPITALS OFSACRAMENTO, INC.
stances require that there be a number of bargain-
ing units among nonsupervisory employees, particu-
larly where there is such a history in the area or a
notable disparity of-interests between employees in
different job classifications.
While the committee clearly intends that the
Board give due consideration to its admonition to
avoid an undue proliferation of units in the health
care industry, it did not within this framework in-
tend to preclude the Board acting in the public
interest from exercising its specialized experience
and expert knowledge in determining appropriate
bargaining units. (NLRB v. Delaware-New Jersey
Ferry Co., 128 F.2d 130 (3d Cir. 1942)).
[Emphasis supplied.]"
Upon careful consideration of all of the arguments
made before us in this and other cases on which we
heard oral argument, as well as the positions of the
amiciwho participated in this and the related proceed-
ings, we have concluded that registered nurses possess,
among themselves, interests evidencing a greater de-
gree of separateness than those possessed by most other
professional employees in the health care industry.
These distinct interests derive not only from the pecul-
iar role and responsibilities of registered nurses in the
health care industry, but also from an impressive his-
tory of exclusive representation and collective bargain-
ing.
The primary and indeed overriding responsibility of
registered nurses is to maintain the best possible patient
care. Pursuant to this responsibility, registered nurses,
unlike most other professional emp]oyees, are required
to be on duty 24 hours a day, 7 days a week, 365 days
a year. Their duties and responsibilities with respect to
patient care cannot by law and licensure be delegated
to any other employees, including other professionals,
and must therefore be performed exclusively by regis-
tered nurses. Apparently in recognition of this unique
degree of professional responsibility, the Joint Commit-
tee; on Accreditation of Hospitals , as well as the laws
of several States, requires all member hospitals to main-
tain a separately administered department of nursing,
under the direction of a director of nursing, for the
purpose of establishing and administering all depart-
mental regulations and qualifications. Thus, complete
authority over registered nurses in hospitals is central-
ized in the director of nursing and all hiring, firing, and
regulating of working conditions, such as hours, shifts,
and job descriptions, take place within the confines of
the department of nursing.
We also note that all registered nurses, in addition to
graduating from accredited nursing schools, are re-
10 120 Cong Rec S 12104 (1974).
767
quired, as a precondition of employment, to take and
pass uniform national licensing examinations and to
acquire and maintain state licenses to practice.
Perhaps of the greatest significance in establishing
the separate interests of registered nurses is their singu-
lar history of separate representation and collective
bargaining often as the result of voluntary recognition.
The parties and amicus participants have called the
Board's attention to numerous collective-bargaining
agreements which have been negotiated in behalf of
registered nurses by organizations which possess spe-
cialized knowledge and expertise in the areas of signifi-
cance to registered nurses . The Board itself has, in the
past, recognized the separate interests of registered
nurses and has routinely established separate nurse
units for collective-bargaining purposes.ll In Con-
solidated Vultee Aircraft Corporation, for example, 108
NLRB at 592, it was noted that:
The Board has consistently recognized that nurses
constitute a well-defined professional group whose
training, skill, and duties differ from those of other
employees, and that a unit confined to nurses is
appropriate for the purposes of collective bargain-
ing.
We are unable to ignore this tradition of separate and
exclusive representation and collective bargaining.
Separate bargaining for other health care professionals,
to the extent it has been shown to exist, appears to have
been on a scale of considerably smaller proportions.
Therefore, mindful of the congressional directions
concerning the number of appropriate bargaining units
in the health care industry, and based on the above
factors which compellingly establish the singularity of
the interests of registered nurses, we are moved to ac-
cord continued recognition to those separate interests.
Accordingly, for the aforementioned reasons, we find
that registered nurses, if they are so sought and they so
desire, are entitled to be represented for the purposes
of collective bargaining in a separate bargaining
unit. 12
11 See, e g., Hudson Motor Car Company, 45 NLRB 55 (1942); Con-
solidated Vultee Aircraft Corporation, 56 NLRB 1785 (1944), 59 NLRB
1276 (1944), 108 NLRB 591 (1954); American Steel & Wire Company, 58
NLRB 253 (1944), Consolidated Steel Corporation, 61 NLRB 97 (1945);
Standard 0¢l Company (Indiana), 80 NLRB 1022 (1948); Diversified Health
Services, Inc d/b/a Convalescent Center of Honolulu, 180 NLRB 461
(1969) Accord: Doctors'Hospital of Modesto, Inc., 193 NLRB 833 (1971),
enfd. 489 F 2d 772 (C.A. 9, 1973)
12 The Board has previously recognized that certain other specially skilled
professional employees may constitute a separate appropriate bargaining
unit from other professional employees based on a history of separate
professional organization and separate administration Thus, in University
of San Francisco, 207 NLRB 12 (1973), the Board directed a separate
election among law school faculty, despite the fact that all university faculty
were professional employees, because of the unique "accreditation and
professional standards established by the American Bar Association and the
Association of American Law Schools, as well as by various state judiciar-
ies" and because the law school operated under separate administration
Continued
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of the hearing, the Employer employed
seven nurse permittees. Nurse permittees are nurses
who have graduated from accredited nursing schools
and have either taken or are about to take the registra-
tion examination required by the State to become li-
censed as registered nurses. Until such time as they
receive notification that they have passed the examina-
tion, the nurse permittees work under state permits
performing essentially the same functions and duties as
the registered nurses, under supervision of a registered
nurse, except for the handling of narcotics. The average
length of time before a nurse permittee becomes a regis-
tered nurse is less than 3 months. In agreement with the
Regional Director, we find that nurse permittees, by
virtue of the nature of their training and working condi-
tions, are professional employees within the meaning of
the Act, and we shall include them in the nurses'
unit. 13 .
The Employer also employed at the time of the hear-
ing 16 charge nurses. However, the record does not
clearly establish the extent of any supervisory powers,
they may possess. The record reveals that charge nurses
may be responsible for directing a work force which
varies in size from two to eight nursing employees,
including registered nurses, licensed vocational nurses,
and nurses assistants. While the record establishes that
charge nurses make up work schedules and schedule
vacations and time off, the charge nurses, unlike head
nurses whom the Regional Director found to be
supervisors," do not have authority to resolve sche-
duling conflicts. Further, unlike the head nurses, it is
not clear whether the charge nurses' responsibility ex-
tends beyond the immediate shifts on which they work,
whether they can effectively recommend hiring of em-
ployees, or whether the employee evaluations prepared
by them are used in determining eligibility for salary
increases. Therefore, as we are unable, on the record
before us, to determine the supervisory status of charge
nurses, we shall, as did the Regional Director, permit
them to vote subject to challenge.
There are approximately 27 registered nurses em-
ployed by the Employer who do not work in the De-
partment of Nursing. Instead, they are permanently
assigned to other departments in the hospital including
laboratory, radiology, business office, educational
training, cardiopulmonary, internal medicine, and in-
from other university faculty groups. See also Fordham University, 193
NLRB 134 (1971); The Catholic University of America, 205 NLRB 130
(1973).
13 Local 250 contested the professional status of nurse permittees at the
hearing, but did not expressly raise the issue in its request for review
14 In the absence of any request for review of the Regional-Director's,
findings with respect to head nurses, we find, in agreement with the Re-
gional Director, that head nurses are supervisors within the meaning of the
Act We note also that the parties stipulated that the director of nursing, the
assistant director of nursing, nursing unit supervisor, and RN supervisors are
also supervisors within the meaning of the Act and are excluded from the
unit of professional employees.
travenous therapy. Unlike the registered nurses work-
ing in the Department of Nursing who report to the
director of nursing, these 27 registered nurses report to
and are-supervised by supervisors in the respective de-
partments in which they work. The record reveals that,
in some instances, they perform the same work under
the same conditions as other employees in their respec-
tive departments and in some instances their work is of
a more specialized nature. We find that the record
evidence is insufficient upon which to ' base a clear
determination that these 27 registered nurses share a
community of interest with registered nurses in the
Department of Nursing and we shall therefore allow
them to vote subject to challenge.
Accordingly, for the aforementioned reasons, we
find that a unit consisting of all registered nurses and
nurse permittees in the Department of Nursing is ap-
propriate for the purposes of collective bargaining and
we shall direct an election therein.
b. Other professional employeesl5
As stated previously, any consideration of issues con-
cerning the composition of appropriate bargaining
units in the health care industry must take into account
the expression in the legislative history that the Board
avoid undue proliferation of the number of bargaining
units. Thus, although Congress recognized that "the
Board should be permitted some flexibility in unit
determination cases," the Board was exhorted to exer-
cise "great caution . . . in reviewing unit cases in this
area."" In addition to the previously discussed legis-
lative history, which is also relevant to the instant dis-
cussion, we note the following statement by Senator
Taft:
The issue of proliferation of bargaining units in
health care institutions has also greatly concerned
me during consideration of legislation in this area.
Hospitals and other types of health care institu-
tions are particularly vulnerable to a multiplicity
of bargaining units due to the diversified nature of
the medical services provided patients. If each
professional interest and job classification is permit-
ted to form a separate bargaining unit, numerous
administrative and labor relations problems
become involved in the delivery of health care.
[Emphasis supplied.]"
15 The parties stipulated that pharmacists and medical laboratory tech-
nologists are professional employees within the meaning of Sec . 2(12) of the
Act In addition, in the absence of any request for review of the Regional
Director's findings thereto, we find that physical therapists, dieticians, and
radioisotope technologists are professional employees within the meaning of
the Act.
16 120 Cong Rec . S 6940 (1974).
17 Ibid
MERCY HOSPITALS OF SACRAMENTO, INC. 769
We do not minimize the differences, both functional
and educational, which exist among the various groups
of professional employees employed by the Employer.
However, based on the record before us, to grant a
separate unit to all such professional groups and job
classifications would, as pointed out in the legislative
history, result in what might be deemed an undue pro-
liferation of bargaining units. Thus, although there is a
diversity of skills between each of these professional
groups, their skills, interests, and working conditions
are, in many respects, no more diverse than those of
employees in a production and maintenance unit in the
industrial sphere or in the overall service and mainte-
nance unit in the health care industry. Despite these
differences, we note that all of the employees here un-
der consideration possess a commonality of profession-
alism which sets them apart from other employees in
the Employer's operations.
In addition, these individual professional groups
have failed to demonstrate the kind or degree of sepa-
rate representation for collective-bargaining purposes
which was so important to our finding that registered
nurses may constitute a separate professional bargain-
ing unit . Thus, despite the number of professional as-
sociations, of which we learned from various parties
and amicus participants in the oral arguments, none
has demonstrated the development of such a tradition
of separate collective bargaining as has been the case
with registered nurses.
We therefore conclude that a separate unit of medi-
cal laboratory technologists is not appropriate. Plainly,
the record does not establish a compelling tradition of
separate representation or separate collective-bargain-
ing history for medical laboratory technologists. The
record does establish, however, that medical laboratory
technologists share an identifiable community of inter-
est with other professional employees. Thus, like other
professionals, medical laboratory technologists are re-
quired to hold a baccalaureate degree in their respective
specialty supplemented by additional training and/or
licensure, perform at least some of their regular work
on the nursing floors and in the patient rooms, are
directly involved in the treatment of patients, and share
common wage scales, benefit programs, and working
conditions.
Accordingly, for the aforementioned reasons and
based on the record in the instant case, we conclude
that a unit consisting of all professional employees,
excluding registered nurses,18 would be appropriate
11 We do not consider and we do not pass 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
professionals. Compare Sonotone Corporation, 90 NLRB 1236 (1950) By
for the purposes of collective bargaining. However,
inasmuch as no labor organization has indicated that it
desired to represent employees in such an all-profes-
sional unit should a separate unit of nurses be found
appropriate, we shall not direct an election in the afore-
mentioned unit.
2. Service and maintenance employees
The Petitioner originally petitioned to represent a
unit consisting of all of the Employer's service em-
ployees and Local 39 originally sought to represent
only those employees in the Employer's maintenance
and engineering department. However, on January 2,
1975, the Petitioner and Local 39 filed with the Re-
gional Director a joint request to appear on the ballot
as a joint petitioner in an overall service and mainte-
nance unit consisting of all of the aforementioned em-
ployees and, if successful in an election, to be certified
as a joint petitioner. On January 3, 1975, the Regional
Director issued a notice to show cause why the joint
request should not be granted and, on January 13, the
Employer filed a statement in opposition. Thereafter,
the Regional Director, on February 4, 1975, trans-
ferred the joint request to the Board for decision.
We hereby grant the Petitioner's and Local 39's joint
request to appear on the ballot as a joint petitioner with
respect to a bargaining unit consisting of all service and
maintenance employees employed by the Employer. In
the absence of any request for review of the Regional
Director's decision with respect thereto,19 we find that
all service and maintenance employees employed by the
Employer comprise a unit appropriate for collective
bargaining within the meaning of the Act and we shall
direct an election therein.20
3. Clerical employees
The Petitioner petitioned for a unit of all office cleri-
cal employees employed at Mercy San Juan. The Re-
the above language, we do not mean to suggest, as intimated by our concur-
ring colleague , that if only an all professional unit is sought, nurses may
possibly be given a separate vote entitling them to remain unrepresented
Although the Petitioner expressed a willingness to represent employees in
such an overall unit and not to contest the Regional Director's findings
thereon, we do not construe that expression of willingness to have been the
Petitioner's primary position. We will, of course, entertain anew petition for
a unit encompassing all professional employees, excluding registered nurses,
should one be filed, based on a proper showing of interest
We do not here reach the question whether we would find appropriate a
unit limited to physicians , residents, or interns. Cf New York University
Medical Center, A Division of New York University, 217 NLRB 522
(1975)
19
The Petitioner and Local 39 agreed to withdraw their requests for
review of that portion of the Regional Director's decision finding appropn-
ate an overall service and maintenance unit in the event that their request
to be a joint petitioner were granted
20 See Mount Any Foundation d/b/a Mount Airy Psychiatric Center, 217
NLRB 802 (1975) But see St. Catherine's Hospital of Dominican Sisters
of Kenosha, Wisconsin, ,Inc., 217 NLRB 787 (1975)
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director directed an election in a unit consisting
of all office clerical employees employed at all of the
Employer's facilities. While, as indicated heretofore,
we agree with the Regional Director's determination
with respect to the scope of the unit, we do not, for the
reasons hereinafter expressed, agree with his findings
concerning the composition of that unit.
Upon due consideration, we have decided that in the
health care field, as in the industrial sphere, we shall
continue to recognize a distinction between business
office clerical employees, who perform mainly busi-
ness-type functions, and other types of clerical em-
ployees whose work is more closely related to the func-
tion performed by personnel in the service and
maintenance unit and who have, in the past, been tradi-
tionally "excluded by the Board from bargaining units
of business office clerical employees. Thus, the Board
,has consistently recognized that the interests of busi-
ness office clerical employees differ markedly from the
interests of clerical employees who work in the produc-
tion areas and has declined to establish bargaining units
composed of the two clerical groups.21 .
Therefore, in the health care industry, we shall nor-
mally find as separately appropriate those units of of-
fice clerical employees which consist of business office
clerical employees.22 In addition, as the interests of
other types of clerical employees are more closely
related to the functions served by, employees in the
service and maintenance unit, we shall include such
clerical employees in the service and maintenance unit.
Our finding herein is consistent with the congres-
sional direction against the undue proliferation of bar-
gaining units in the health care industry. Thus, the
legislative history of the health care amendments indi-
cates that Congress recognized the possible appropri-
ateness of separate bargaining units among employees
who have a history of separate representation,23 as do
business office clerical employees.24 We also note that
the inclusion of other types of clerical employees in the
service and maintenance unit herein found appropriate
avoids unnecessary fragmentation of employees who
share common interests and is therefore in keeping
with the congressional mandate.
Accordingly, for the aforementioned reasons, we
find that a unit consisting of all business office clerical
employees, excluding all other employees, is appropri-
21 General Electric Company (River Works), 107 NLRB 70 (1953) These
distinct interests are rooted in community of interest considerations, includ-
ing the performance of different functions for different purposes in separate
work areas under separate supervision See, e g, Minneapolis-Moline Com-
pany, 85 NLRB 597, 598 (1949)
22 To the extent that it is inconsistent with the decision in the instant case,
we hereby overrule the decision in National Medical Hospitals, Inc., of San
Diego, d/b/a Chico Community Memorial Hospital, 215 NLRB No 155
(1974), which issued prior to the direction of oral arguments concerning
issues of unit composition in the health care industry
23 See discussion , supra -
24 See cases cited in fn 21, supra.
ate for the purposes -of collective bargaining and we
shall direct an election therein.25
4. Supplemental employees
The record establishes that the Employer employs
approximately 200 supplemental employees, most of
whom are regular part-time employees working less
than 40 hours per 2-week pay period or on a temporary
or an "on-call" basis. Supplemental employees gener-
ally serve as "float personnel" working where needed
to supplement the work force in many service and
maintenance departments. Need for these employees
necessarily fluctuates with the varying patient census in
the Employer's facilities. In many instances, new em-
ployees are hired as supplemental employees and subse-
quently become part-time and then full-time em-
ployees.
The parties disagreed as to whether or not the sup-
plemental employees should be included in the bargain-
ing unit. While the Employer would include all supple-
mental employees, the Petitioner and Local 39 would
include only those- supplemental employees who are
obligated, to perform weekend rotation work and who
are eligible to participate in the Employer's benefit pro-
grams or, alternatively, would allow the Board to estab-
lish an arbitrary standard of voter eligibility based on
the number of hours worked. However, in the absence
of any agreed-upon equitable eligibility formula and
inasmuch as the record is silent as to the length,
regularity, and currency of the employment of supple-
mental employees, we shall merely permit, as did the
Regional Director, all supplemental employees who
work on a regular part-time basis to vote in the election.
Conclusion
Accordingly, upon the entire record and for the
aforementioned reasons, we shall direct elections
among employees in the following units which we have
found to be appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
UNIT A
All registered nurses and nurse permittees em-
ployed at Mercy General Hospital, Mercy Con-
valescent Hospital, and Mercy Children's Hospi-
tal, Sacramento, California, and at Mercy San
Juan Hospital, Carmichael, California; excluding
all other employees, guards, -and supervisors as
defined by the Act.
25 The parties stipulated to the classifications of employees to be included
in the office clerical unit. See the unit description , Voting Group C
MERCY HOSPITALS OF SACRAMENTO, INC.
UNIT B
All full-time and regular part-time service and
maintenance employees , including licensed voca-
tional nurses , graduate vocational nurses, nurse
assistants , ward clerks , surgical technicians, ACC
clerks, x-ray technicians , cardiopulmonary techni-
cians, respiratory therapy technicians , EKG tech-
nicians, tissue technicians , EEG technicians, phar-
macy technicians , pharmacy clerks, computer
programmers , printing assistants , technicians to
receiving clerk , housekeeping technicians, food
service workers , laundry workers, department
aides, all employees of the maintenance and engi-
neering department , and all clerical employees
other than business office clerical employees, em-
ployed at Mercy General Hospital , Mercy Con-
valescent Hospital , and Mercy Children 's Hospi-
tal, Sacramento , California , and at Mercy San
Juan Hospital , Carmichael , California; excluding
all other employees, guards, and supervisors as
defined by the Act.
UNIT C
All business office clerical employees , including
clerks 1, 2, and 3 , keypunch operators, keypunch
operator trainees, computer operator l's, senior
transcribers , and PBX operators, employed at
Mercy General Hospital, Mercy Convalescent
Hospital , and Mercy Children 's Hospital, Sac-
ramento, California , and at Mercy San Juan Hos-
pital, Carmichael , California; excluding all other
employees, confidential employees, guards, and
supervisors as defined by the Act.26
[Direction of Election omitted from publication.]"
MEMBER FANNING, concurring:
This hospital complex is operated at two locations,
approximately 13 miles apart . Originally the Petitioner
26 Contrary to the position ascribed to us by Member Kennedy, we are
not ignoring the normal showing of interest requirement Rather, since we
are enlarging the size of the bargaining units with respect to registered
nurses and business office clerical employees, we shall not permit the Re-
gional Director to conduct elections in such units unless and until the labor
organizations involved submit timely showings of interest which warrant the
conduct of an election in such enlarged units. Although we have been
administratively advised that the Regional Director, at an earlier date, re-
quest ed the labor organizations involved to submit new showings of interest
based on the unit determinations in his decision, we note that those unit
determinations were tentative and, of course, review was thereafter sought
on various grounds In the light of these facts, and the further fact that no
party could at that time, with any degree of certainty, know what unit or
units in this newly covered industry would be found appropriate, we are
unwilling to dismiss these petitions on grounds that, shortly after the Re-
gional Director 's decision, some showing of interest requirements may not
have been met We believe it appropriate to direct the Regional Director to
771
sought units at Mercy General, Sacramento, and sepa-
rately at Mercy San Juan (also a general hospital) at
Carmichael. At the hearing there were several interven-
tions, one by CNA for all registered nurses of the Em-
ployer hospitals; presumably this included the Mercy
Convalescent and the Mercy Children's Hospital oper-
ated at Sacramento. Noting that the parties agreed that
the Convalescent and the Children's Hospitals should
be considered part of Mercy General, the Regional
Director found, on the record made, that the four facili-
ties constitute a single employerunder the Act, and that
appropriate units should encompass employees at all
four facilities. In the circumstances of this case, with
the Employer urging a four-facilities unit and the Peti-
tioner and Intervenors agreeing at oral argument to a
unit of this scope, I agree with this finding. I would
point out, however, that a single employer finding does
not necessarily carry with it a finding that units em-
ployerwide in scope are also appropriate. This will de-
pend, in cases where the parties do not agree, on what
the facts show as to the autonomy of a single location
hospital facility. I see nothing in the legislative history
concerning nonprofit hospitals to indicate that single
location units, such as are presumptively appropriate in
industry generally, were meant to be discouraged.28
I am in complete agreement with giving registered
nurses a separate unit when they are sought to be repre-
sented on that basis.29 They are a distinct group
among the professional employees in the health care
industry, and have a marked community of interest in
bargaining collectively on that basis. Nursing care of
patients is a round-the-clock, every day responsibility.
It is perhaps because of this that RN's have a long
history of separate representation for collective
bargaining-often as the result of voluntary
recognition-and many units of RN's have been estab-
lished through the processes of this Board. If, however,
they are not sought separately but only as part of an all
professional unit, or possibly a residual professional
unit, I would include them in such units without a
separate vote.3o
Consistent with the professional capacities and com-
mon interest of all RN's, I would include in the unit not
only the RN's in the Employer's department of nurs-
ascertain the parties' showing of interest at this time with respect to the units
here found appropriate
27 [Excelsior fn. omitted from publication.]
28 I note that now pending before this Board is Presbyterian Medical
Center, 218 NLRB No. 192 (1975), where the employer is urging that
another hospital operated by it 13 miles away should not be included in the
same unit.
29 I would include the nurse permittees , as my colleagues do
30 This is somewhat like the Board's inclusion of skilled crafts in produc-
tion and maintenance units if not separately sought. However, I see no need
to suggest, as my colleagues do, that , if only an all professional unit is
sought, nurses may possibly be given a separate vote entitling them to
remain unrepresented. There is no statutory support for a Sonotone-type
election as between professional employees
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, but also the 27 assigned to other departments in
these hospitals . As found by the Regional Director,
nine RN's are permanently assigned to the laboratory
department , which is work that takes them to patient
rooms to take blood samples and throat cultures, insert
tubes for gastroenterology , and to be available in the
event of a problem with the patient .31 One RN is as-
signed to the radiology department to assist and ob-
serve the patient in what may be a difficult- situation,
including the injection of dye into the vascular system.
Three RN's are assigned to the the cardiopulmonary
department , which also includes work on nursing
floors. Some RN 's-the number not appearing in the
Regional Director 's decision-are assigned to internal
medicine . This involves emergency calls to patient
rooms accompanied by respiratory technicians. Car-
diac arrests and tracheotomies are treated . The Em-
ployer employs eight radioisotope technicians in its nu-
clear medicine department . Six of these are RN's and
one a former LVN. All received additional training in
nuclear medical technology. They inject radioisotopes
,into the blood stream and operate scanning machines.
For this work only RN's or those with formal training
in nuclear medicine are considered as applicants.32
Both Petitioner and Intervenor CNA are seeking to
represent all RN's. In my view there is no reason not
to include in the unit those RN's assigned to hospital
departments other than the nursing department simply
because these departments are separately supervised. It
is not possible for the Board to grant a multiplicity of
departmental units within a hospital without the undue
proliferation which concerned the Congress . Therefore,
in view of the patient-related function of all RN's and
their background of professional training to that end,
it seems reasonable and appropriate to group together
in the RN unit all RN's wherever assigned in these
hospitals .33 Unlike my colleagues I see no necessity to
vote these RN's subject to challenge.
Head Nurses: Among the approximately 300 RN's
here involved there are 13 classified as head nurse, 3
being employed at Mercy San Juan . Depending upon
their area of assignment they report to the director or
the assistant director of nursing or to a nursing unit
supervisor , classifications stipulated to be supervisory.
The Regional Director found them to be supervisors
and there is no request for review of this finding as to
31 It appears from oral argument that these RN's work independently of
the medical laboratory technologists whose function it is to perform the
laboratory tests , having satisfied California licensing requirements for that
purpose . Supervision of these RN 's by the chief laboratory technologist is
said to be "of a functional rather than a technical nature "
32 The Regional Director found that these radioisotope technicians were
professionals , noting that the group was predominantly composed of in-
dividuals with a baccalaureate degree in nursing, plus additional highly
specialized training
33 This would include the two RN 's who work in the admitting depart-
ment and those assigned to the educational training department
these head nurses . I agree with it in the circumstances.
I would point out, however , that the term "head nurse"
does not necessarily involve supervisory authority as
defined in Section 2 (11). It may involve only 2(12)
professional direction .34 At oral argument CNA
stressed the importance of determining the supervisory
issue on the basis of whether the RN' s alleged to be
supervisors actually have interests other than patient
care. Decisions by RN's, including assignments to or-
derlies and aides, are made from a patient care stand-
point . On the other hand , a director of nursing obvi-
ously must consider the interests of the Employer as
well and is a supervisor as was stipulated here. But the
fact remains that many RN's may have been given titles
that suggest that they are 2( 11) supervisors , whereas
they do not exercise their authority "in the interest of
the employer" within the meaning of that section, but
rather as professionals directing other professionals or
subprofessionals as contemplated by Section 2(12)(b) of
the Act.
My colleagues , having found an RN unit appropri-
ate, interpret the Act and its legislative history as au-
thorizing a finding that all professional employees ex-
cluding RN's-except possibly excluding physicians,
residents, and interns-are necessarily an appropriate
unit. Intervenor CAMLT originally sought a unit of
medical laboratory technologists , an employee group to
which this Board granted "severance" from a mixed
professional and nonprofessional unit that had been
voluntarily established without a separate vote for the
professional employees under Section 9(b)(1).35 At
oral argument CAMLT expressed a much broadened
interest , in an all professional unit excluding nurses,
and "doctors" as well. My colleagues direct no election
in that unit but would entertain a petition-with proper
showing of interest-for all professionals excluding
RN's. In this case I agree with this result . Other cases
now pending before the Board present the issue con-
cerning bargaining for interns and residents and/or
medical staff physicians. However, I do not believe that
it is wise for this Board to appear to foreclose the
appropriateness of any other professional group. To my
mind it is consistent with the purpose of this new legis-
lation to view Congress ' nonproliferation admonition
as limited to the specific hospital entity involved and its
bargaining pattern or lack of it. I have no thought, of
course, of recognizing every professional interest with
a separate professional unit , but I do believe that the
Board should allow some room for the pattern organi-
zational development may take and not cast in a mold
certain units as the only permissible ones . Congress
itself declined to do that. We are simply urged to avoid
34 See discussion in my dissent in David Anna Corporation d/bla Snyder
Bros Sun-Ray Drug, 208 NLRB 628 (1974), concerning head pharmacists.
35 See The Permanente Medical Group, 187 NLRB 1033 (1971).
MERCY HOSPITALS OF SACRAMENTO, INC. 773
proliferation with respect to the problems of whatever
hospital is under consideration by reason of a represen-
tation petition or petitions.
The service and maintenance unit here found appro-
priate includes admittedly skilled painters and
carpenters,36 as well as stationary engineers , the latter
having had a separate bargaining history in a multiem-
ployer unit to which this Employer was a party until
1970. Separate bargaining for stationary engineers
working at hospitals in northern California appears to
be an area pattern. Here Local 39 sought to add the
skilled maintenance employees. Later Local 250, seek-
ing the service employees, and Local 39 sought joint
representation of a combined service and maintenance
unit..I agree with my colleagues in granting that re-
quest. I would note, however, that the legislative -his-
tory does not foreclose traditional craft and departmen-
tal units, such as stationary engineers, in the health care
field or preclude consideration of area practice.37 I
would construe this as not foreclosing a traditional
maintenance department unit on initial organi-
zation.3 B
I agree with the appropriateness of a unit of business
office clericals in this industry. In addition, although
there are obvious differences in health care as com-
pared with industry in its broad sense , I believe that
those clericals who work away from the business
office-on various floors of the hospital-are, like
plant clericals, appropriately included in a service and
maintenance unit with the nonprofessionals who also
work on the various hospital floors and with whom
they come in contact. In fact, in a hospital, a service
and maintenance unit is essentially the counterpart of
a production and maintenance unit.
MEMBER KENNEDY, dissenting in part-
I join my colleagues in their unit determinations ex-
cept their finding that a registered nurses unit is appro-
priate. I would affirm the Regional Director's finding
that a unit of all professional employees is appropriate.
My colleagues correctly direct an election in the service
and maintenance unit, but they err in directing elec-
tions in the registered nurses unit and in the business
office clerical unit because no union has submitted an
adequate showing of interest in either of those units.
It is significant that both the Employer and the Peti-
tioner in these cases are in "complete agreement with
the decision of the Regional Director."" I do not
36 The sense of Employer's presentation at oral argument was to admit
these skills
37 See the dissenting opinion in Shriners' Crippled Children's Hospital,
217 NLRB 806, issued this day.
38 This service and maintenance unit includes, some employees the Board
is fin ding to be technicals in Nathan and Miriam Barnert Memorial Hospital
Association d/b/a Barnert Memorial Hospital Center, 217 NLRB 775
(1975) As there is here no union seeking to represent technical employees
separately, I agree that their inclusion in this instance is appropriate
agree with the views expressed by my colleagues in
footnote 18. I construe the statements of Petitioner's
counsel set forth below in footnote 39 to be a clear
expression of willingness to proceed to an election in a
unit of all professional employees. I do not construe the
statements of counsel at the oral argument to mean that
Petitioner's "primary position" is to have an election in
a registered nurses unit.
In my view, an all professional employee unit is not
only an appropriate unit but it is the "most appropriate
unit." I recognize that Section 9 of the Act has been
construed to mean that the Board is not required to
direct an election in the "ultimate unit, or the most
appropriate unit; the Act requires only that the unit be
,appropriate. s"40
I do not suggest that in no circumstances would I
find a unit limited to registered nurses to be
appropriate.41 Such determination must be based on
the relevant facts in each case. I do not believe the two
factors stressed by my colleagues justify a registered
39 The Employer herein filed a 100-page brief in opposition to the Request
for Review. Counsel for the Employer urged at the oral argument that the
"Board sustain the Regional Director's decision in its entirety."
At the oral argument Member Fanning asked counsel for Petitioner, "if
I understood what you are saying, you are now in complete agreement with
the decision of our Regional Director?" Counsel Van Bourg replied, "That's
the position that we are taking, insofar as the Mercy case is concerned " At
another point the same counsel for Petitioner stated
It is true that in many decisions nurses have been treated separately,
but if you are now to treat the position of the amendments to the Act
in context with what the Board has done previously with respect to
professional units, then I think that the statement of position by Mr.
Asher is well taken, namely, that if we take out each group of profes-
sionals and treat them and deal with them separately, eventually we will
have substantial groups of unrepresented people, because as a practical
matter that portion of the Act which favors organization will be
thwarted.
I think that an all-professional unit in a given case, particularly such
as the case in Mercy, is appropriate - Community of interest need not
be one that deals with a product or with a patient It could be the
method of remuneration, how the people interact with each other, how
they meet, where they deal with the total aspect of the employer's
operation, and I think that an all-professional unit clearly as in the case
of the Mercys it can be defined as such.
40 Morand Brothers, Beverage Co., 91 NLRB 409 (1950), enfd 190 F.2d
576 (C.A. 7, 1951)
41 I think it desirable to point out that I have agreed with my colleagues
in finding a unit of business office clerical employees to be appropriate. I do
so because of the facts in this case and because of the agreement of the
parties I note also that the election in the service and maintenance unit will
be conducted with Local 250 and Local 39 appearing on the ballot as joint
petitioners Only Local 250 seeks to represent the business office clerical
unit My agreement with the result in this case should not be interpreted as
complete agreement with the rationale stated by my colleagues with respect
to the business office clericals I do not subscribe to the view that business
office clericals can be represented only on the basis of a separate unit See
my partial dissents in St Catherine's Hospital of Dominican Sisters ofKeno-
sha, Wisconsin, Inc., 217 NLRB 787, issued today, and Mount Airy
Foundation, d/b/a Mount Airy Psychiatric Center, 217 NLRB 802,
issued today.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nurses unit in the face of Petitioner's expressed willing-
ness to go to an election in an all professional unit. -
The first factor stressed by my colleagues is the
"complete authority over registered nurses in hospitals
is centralized in the director of nursing and all hiring,
firing, and regulating of working conditions, such as
hours, shifts, and job descriptions, take place within the
confines of the department of nursing." The second is
"their singular history of separate representation and
collective bargaining." The first point might be persua-
sive if I found it supported by the record in this case.
There are 27 registered nurses who are not a part of the
Nursing Service Department. They work in the radi-
ology, laboratory, business office, educational training,
cardiopulmonary, internal medicine, and intravenous
therapy departments and report to the supervisors of
those departments. It is clear that the registered nurses
in the laboratory work along side the medical labora-
tory technologists, perform many of the same tasks,
and are supervised by the chief laboratory technologist.
On the second point, I do not propose to set forth a
treatise reviewing the history of nursing. I note, how-
ever, that this "singular history of separate representa-
tion" is not entirely unrelated to sex consideration.
Accordingly, I am not inclined to attach the same de-
gree of importance to it as my colleagues-
I think it significant that, with respect to those regis-
tered nurses who are assigned to the Nursing Service
Department, there is a constant interrelation of duties
and community of interest with other professional em-
ployees. The record shows the registered nurses and
pharmacists work together in formulating patient pro-
files for medication and insuring that the various drugs
prescribed for each patient are compatible with one
another. Pharmacists frequently consult with the regis-
tered nurses to determine a patient's reaction to a par-
ticular drug. Medical laboratory technologists work
closely with the registered nurses in patient rooms and
on the nursing floors drawing blood, taking throat cul-
tures, and obtaining laboratory specimens. Physical
therapists work with the registered nurses to help the
patient regain mobility after a serious operation or a
long convalescence. Dieticians and the registered
nurses must work together to insure that the patient's
diet is acceptable. All professional employees receive
identical treatment under the Employer's wage and
benefit programs.
On considering the particular facts in this case, the
diversity of supervision and functions performed by the
various registered nurses, I conclude the registered
nurses do not have a sufficiently distinct community of
interest apart from the other professional employees as
to warrant their establishment as a separate unit.
Assuming, arguendo, that my colleagues are correct
in finding units of registered nurses to be appropriate,
their direction of -election in the' nurses and clerical
units is contrary to longstanding policy that the ex-
penditure of Agency time, effort, and funds should be
avoided where it appears that the request for election
is not supported by a "substantial number" of em-
ployees in the unit.42 The Board has long followed the
rule that 30 percent constitutes a "substantial num-
ber." Section 101.18(a) of the Board's Statements of
Procedure. The showing-of-interest requirement ena-
bles the Board to determine whether or not the holding
of an election is warranted.
Shortly after the Regional Director's Decision herein
the inadequate showing of interest came to the atten-
tion of the Regional Director.43 The Regional Direc-
tor notified the parties of the inadequacy of the showing
of interest and that additional evidence of interest
should be submitted.44 We have been administratively
advised by the Regional Director that no additional
showing of interest has been submitted. Based on the
information furnished administratively by the Regional
Director, it is clear that no union has as much as a-
10-percent showing of interest among the employees in
either the nurses' or clerical unit.45
Directing elections under the foregoing circum-
stances in these two units violates longstanding policy
of this Agency. There is nothing in the legislative his-
tory which remotely suggests that Congress intended
that we should waive our usual interest showing re-
quirements in the health care industry. Accordingly, I
dissent from my colleagues' direction of elections in the
registered nurses' unit as well as in the unit of business
office clericals.
42 See Sec. 9(c)(1)(A) of the Act
43 In Case 20-RC-12301 the unit sought was limited to the 100 registered
nurses at the Mercy General Hospital. There are approximately 300 regis-
tered nurses employed at both Mercy General and- the Mercy San Juan
facility. Similarly, the unit sought in Case 20-RC-12302 was limited to the
business office clericals at Mercy San Juan and constituted less than one-
half of such clericals in the unit for the combined facilities
44 The Employer submitted lists of eligible voters promptly after the
Regional Director directed elections in these cases and specifically ques-
tioned whether any labor organization had submitted a 30-percent showing
of interest in either the professional unit or the clerical unit. The Regional
Director advised the parties that no election would be conducted in these
units because of the lack of showing of interest.
45 Fn 26 of the majority opinion states that the Regional Director shall
not "conduct elections in such units unless and until the labor organizations
involved submit timely showings of interest which warrant the conduct of
an election in such enlarged units." Better practice requires dismissal of
these petitions where, as here, there is less than a 10-percent interest show-
ing in the units found appropriate These petitions have been on file for
many months without a proper showing of interest having been submitted
No time is specified by the majority for the production of the additional
showing of interest and the petitions may remain on file for several more
months before any action is taken This poses an unnecessary impediment
upon the Employer in conducting its operations It forecloses participation
by other labor organizations who may now have an interest in organizing
these employees from utilizing the Board processes either as a petitioner or
an intervenor even though there has never been on file a properly supported
petition