North Dade Hospital, Inc.

National Labor Relations Board - Board Decisions

May 13, 1974

210 N.L.R.B. 588 (N.L.R.B. 1974)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Dade Hospital, Inc. and Arnold A. Oper, d/b/a
North Dade Medical Center , both d/b/a North
Dade Medical Complex and Local 1115, Joint
Board Nursing Home and Hospital Employees,
Florida Division, Petitioner. Case 12-RC-4472
May 13, 1974
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Jack D.
Livingston of the National Labor Relations Board.
Following the close of the hearing, the Regional
Director for Region 12 transferred this case to the
Board for decision. Thereafter, the Employer and the
Petitioner filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.'
Upon the entire record in this proceeding, the
Board finds:
1. North Dade Hospital, Inc. (hereinafter called
Hospital), a Florida corporation, is engaged in the
business of operating a 77-bed hospital for profit at
14701 NW. 27th Avenue, Opa Locka, Florida. The
Hospital's principal officers are Arnold A. Oper,
president, James P. Ebaugh, vice president, and
Eileen Oper, secretary-treasurer. James P. Ebaugh is
also the administrator of the Hospital. Arnold A.
Oper, an individual, also operates as a sole proprie-
torship a medical clinic known as North Dade
Medical Center (hereinafter called Clinic) at the
same address. James P. Ebaugh is also the adminis-
trator of the Clinic. As noted above, both entities are
located on the same premises, have the same
administrator and common supervisor, have a
similarly employed personnel, joint office and
clerical staff, a joint accounting department, a joint
payroll for all employees in the Hospital and the
Clinic with all employees being paid by checks
drawn on the North Dade Medical Complex, and
personnel policies are the same for both entities. In
addition, the evidence shows that the operation is
1 The Employer's motion for oral argument is hereby denied inasmuch
as the record and briefs adequately present the issues and positions of the
parties.
held out to the public as a single entity, the entrance
to the Hospital is through the Clinic and here are
common support operations such as the 1pharmacy
and cafeteria that serve both entities . From the
foregoing it is clear and we so find that North Dade
Hospital, Inc. and Arnold A. Oper, d/,b/a North
Dade Medical Center constitute a single employer
for jurisdictional purposes.
The record shows that annually, the Hospital's
gross revenue is in excess of $250,000 and that the
Hospital annually purchases from points outside the
State of Florida material and supplies valued in
excess of $25,000.2 While the record is silent as to
any dollar volume of business for the Clinic, the
record does show that from 7 to 10 doctors, working
as independent contractors, engage in the practice of
medicine at the Clinic and that the Clinic employs
approximately 45-50 support personnel. In these
circumstances we find that the Employer is engaged
in commerce within the meaning of the Act and that
it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The Petitioner is a labor organization as
defined in the Act and claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Petitioner seeks to represent a unit
composed of various employees of the Employer
employed at the Medical Center Complex, including
all aides or nursing assistants, dietary employees,
housekeeping employees, maintenance employees,
non-licensed physical therapists, ward clerks and
licensed practical nurses, but excluding uniformed
clericals, including receptionists, billing clerks, cash-
iers, PBX operators, medical records clerks, emergen-
cy room clerks and admission clerks, office clerical
employees, X-ray department assistants, inhalation
therapy assistants, laboratory assistants , pharmacy
department assistants , guards, and supervisors as
defined in the Act.
The Employer contends that the only appropriate
unit is all employees employed by the Hospital and
Clinic, but excluding auditing employees, accounting
employees, personnel employees, confidential secre-
taries, registered nurses, physicians, pharmacists,
guards, and supervisors as defined in the Act. In
support of this contention the Employer points out
that the entire work force's efforts are directed
toward the treatment of patients and the employees,
in many instances, work in close proximity to each
2 The record does not indicate whether any of this sum represents
inventory purchases for the pharmacy.
210 NLRB No. 82
NORTH DADE MEDICAL CENTER 589
other and enjoy the same fringe benefits which are
identical to all employees. Alternatively, the Employ-
er contends that if an overall unit is not the only
appropriate unit then employees in many of the
classifications sought to be excluded by the Petition-
er should be included in the unit.
The record shows that the Hospital is operated as a
77-bed hospital staffed by physicians, registered
nurses, licensed practical nurses (herein called
LPN's), nursing assistants or aides , and the usual
supporting personnel, including X-ray, lab, pharma-
cy, and therapy assistants, as well as the usual
housekeeping and maintenance personnel . The Clin-
ic is operated on a walk-in patient basis and is staffed
by physicians and nurses assistants , as well as
receptionists, cashiers, billing clerks, and other
supporting personnel designed to facilitate patient
care and treatment, the attendant paperwork in-
volved therein, and the billing and collection of
charges made for professional services rendered.
In the Clinic, physicians work 4-5 hour shifts
during the period from 8 a.m. to 11 p.m. Examina-
tions are conducted in examination rooms provided
in the Clinic. The physicians are assisted by nursing
assistants who work along with the physicians.
Formal education requirements for nursing assistants
in the medical sense are generally limited and
assistants ' work functions generally involve taking
patient histories, physicals, temperatures, pulses, and
otherwise rendering general assistance to the examin-
ing physicians.
When a patient first arrives at the clinic he is met
by a receptionist at the counter. The receptionist,
attired in a blue and white uniform, interviews the
patient and, by hand, fills out the necessary paper-
work obtaining the required information, including
prior illnesses. If the patient has been to the Clinic
before the receptionist will pull the patient's file and
medical record, updating the file. These files are then
placed in a position on the counter for the nursing
assistant or the doctor to pick up as the patient's turn
arrives. The Petitioner would exclude the reception-
ists on the ground that they are office clerical
employees. We agree. Although the receptionists
sometimes substitute for nursing assistants and fill in
as cashiers in the cafeteria, this is not on a regular or
routine basis, but rather occurs only when there is a
shortage due to the absence of the regular nursing
employees. From the record, it is clear that the
receptionists are data collectors and, while they do
not work at a desk or do any typing, their work is
directly related to the "paperwork" aspect of the
patient's treatment, including the filing of the records
involved. Once the patient's file is prepared or
"updated," the receptionist's involvement with the
patient terminates . In addition, they are supervised
by the "business office manager." In these circum-
stances, and as the receptionists work in an office-
like area of the Clinic's waiting room and are not
involved with those employees engaged in the
treatment or care of the patients, we find that they
are office clerical employees and exclude them from
the unit.
After the patient is seen and treated by a doctor,
the nursing assistant escorts the patient to the cashier
where an attempt is made to secure payment for the
services rendered . The cashier's only contact with the
nursing assistant is in regard to billing for whatever
services are rendered . The cashier is a particular
employee designated to handle the money received
and works in a teller-type cage . The cashier may and
frequently does act as a receptionist and, like the
receptionists , also does filing work . Again , like the
receptionists , the cashier is supervised by the "busi-
ness officer manager," works in the office -like area in
the clinic waiting room , and like the receptionists has
no involvement with those employees engaged in the
care of treatment of the patient. In these circum-
stances , we find them to be office clerical employees
and exclude them from the unit.
In the event the patient is not able to pay cash for
treatment , those charges relating to the patient's
treatment are submitted into an accounting system.
After charges are posted, the accounts are turned
over to the billing clerks for billing according to
established rates . Billing clerks work in an area back
from the counter at desks where they perform the
necessary paperwork which basically involves check-
ing the medical records and verifying that the
charges on the account match the medical records
showing the services rendered . If there is any
discrepancy , the billing clerk will contact the nursing
assistant or the doctor to determine that the services
have been rendered. Billing clerks are also under the
direct supervision of the "business office manager,"
and will when needed substitute for receptionists or
the cashier . In addition to the billing clerks assigned
to the Clinic, there are five additional billing clerks
assigned to the Hospital who perform identical
functions and who also work in the same general
office area under the supervision of the "business
office manager." As these employees perform clerical
functions and have little if any involvement with
those employees engaged in the care or treatment of
the patients we find them to be office clerical
employees and will exclude them from the unit.
The Hospital Employees: As noted above, the
Petitioner would exclude from the unit admitting
clerks , emergency room clerks, central supply clerks,
storeroom clerks, and certain auxiliary personnel,
including the laboratory assistants , operating room
assistants, inhalation therapy assistants, radiology
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(X-ray) assistants, and pharmacy assistants. The
Employer would include all of these employees in the
unit, first on the ground that the Hospital, like the
Clinic, functions on an integrated basis and that the
only appropriate unit should be a unit encompassing
all employees including the clericals whom the
Employer would analogize with plant clerical em-
ployees. Alternatively, the Employer contends that
certain of these classifications work with and have a
close relationship and community of interest with the
employees that the Petitioner would include in the
unit.
Admitting Clerks: The Hospital employs five
admitting clerks who work in the hospital area at
desks and who must have some typing ability. Their
principal function is to obtain required information
from the incoming patient and type up the necessary
papers. By use of a bed index they assign beds where
medical considerations are not involved. They also
wear blue and white uniforms and are supervised by
the business office manager. The only incidents of
interchange appears to be with the receptionist when
the workload in that area requires assistance. In these
circumstances, and as these employees perform
clerical functions not related to the care and
treatment of the patients, we find them to be office
clerical employees and exclude them from the unit.
Medical Records Clerks: Medical records clerks are
also uniformed (blue and white) employees who
work out of the office-like area in the Clinic.
However, unlike the other employees in that area,
these four employees are supervised by the registered
medical records technician and work at two desks in
the office area. Their basic function is the verifica-
tion of physicians' medical records and nursing
patients' progress reports and, where necessary, to
check with the doctor or nurse involved to see if the
appropriate medical procedures have been carried
out and properly documented. To qualify for this
type job an employee must take a 6-month course on
medical records as required by the State of Florida
but office skills such as typing are not required. In
carrying out their assignments the medical records
clerks frequently go to the nursing stations to check
records and/or talk to the nurses or doctors,
regarding the patients' treatment. The Employer's
administrator estimates that these employees spend
approximately 50 percent of their time at or around
the nursing station. As these employees spend a
substantial amount of their time in the patient care
area of the hospital performing functions (albeit
clerical in nature) directly related to the care and
treatment of the patients through contacts with those
employees involved in the medical aspects of the
Hospital, including employees at the nursing station,
we find that these employees should be included in
the unit.
Emergency Room Clerks: The Hospital employs
five emergency room clerks who work the various
shifts in the emergency room . Although the emergen-
cy room is open 24 hours a day, these clerks do not
work on the 11 p.m. to 7 a.m. shift. Their duties
generally entail securing information from the
patient and, where treatment is rendered, securing
payment of the same if it is not covered by some
form of insurance . These employees are also required
to wear the blue and white uniform. As to their
supervision , their clerical functions are subject to the
supervision of the "business office manager," but,
insofar as their daily work routine is concerned, they
are under the supervision of the registered nurse or
LPN as well as nurses aides assigned to the
emergency room . In addition , because of their
presence in the emergency room , they maintain a
close contact with the patient and in various
instances may assist the nurse and/or physician in
the treatment of the patient. They also keep the
patient 's records in the emergency room files. While
the primary function of these employees is the
collection of patient information, the record shows
that these clerks work almost exclusively with
medical personnel engaged in the treatment of
patients , that they assist the medical personnel in
treating patients , and that they work in an area
separated from the Clinic office-reception area. In
addition, the record does not show that these clerks
have any contact or work functions with or related to
the clerical employees working in the office area of
the Clinic. In these circumstances , we find that the
emergency room clerks have a sufficient community
of interest with the employees in the unit to warrant
their inclusion in the unit.
Radiology Assistants : In its X-ray Department, the
Hospital employs four or five radiologist assistants.
These employees work under the direction of a
radiologist doctor, who, like the physicians in the
Clinic, are independent contractors. One of the
assistants is a registered X-ray technician who,
pursuant to state regulations , has completed a 2-year
course in radiology , a course similar in nature to that
of the LPN's. The other three or four have taken 6-
month courses in the field of radiology . In the course
of their duties, the assistants position patients on the
X-ray table and take and develop the X-ray pictures,
and, if no one is available to bring the patient to the
X-ray room , the assistants will go into the hospital
proper and transport the patient into the X-ray room.
They do not perform any duties with regard to
reading the X-rays. These employees also work in a
separate area away from the office -reception area of
the Clinic.
NORTH DADE MEDICAL CENTER 591
Physical-Inhalation Therapy Assistants: Because of
the size of the hospital, the Employer has combined
its physical and inhalation therapys into one depart-
ment under the supervision of registered physical and
inhalation therapists both of whom are excluded
from the unit as independent contractors. The
Petitioner apparently would include the physical
therapist assistants in the unit but would exclude the
inhalation therapist assistants. Presumably, the phys-
ical therapist assistants give therapy treatments
relating to muscles, nerves, and exercises among
other things. The inhalation therapy assistants work
in those areas directly relating to the respiratory
system. These employees generally take a 6-month
course in their field, and, while the State of Florida
provides for registered therapists, there is no showing
in the record as to whether this 6-month course is all
that is required for registration or whether, like the
registered X-ray technician, as compared to the X-
ray assistants, a substantially longer period of
training is required. In any event, the record shows
that one of the therapist assistants employed in this
department is registered, although one of the
assistants is an LPN working as a therapist. Therapy
itself can either be given in the therapy area or in the
patient's room. Physical therapy involves, among
others, the use of heat, massage, and exercise
depending on need. Inhalation therapy involves the
administration of oxygen through some type of
respirator, and more generally appears to be admin-
istered in the patient's room. The assistants work
according to specific daily assignments laid out by
the registered therapists. In addition, the testimony
shows that the work of the physical and inhalation
therapists is interchangeable.
Laboratory Assistants: In the hospital lab there is
one registered lab technologist, an admitted supervi-
sor, who supervises the work of four lab assistants.
These employees' primary functions are, in compli-
ance with proper authorizations, to go to the patient's
room and draw specimens for blood tests, urinalysis,
and other similar tests. The tests themselves are
performed in the laboratory on machines designed to
perform tests and provide the results. The only
function the lab assistant has in this matter is to be
sure that the machine is properly set for the test to be
performed. These assistants may have attended a
medical vocational school, but they are not licensed.
In addition, they do not work with any discretion,
but, rather, are limited to performing the lab tests in
conformity with prescribed procedures as well as the
doctor's authorization or direction.
Operating Room Assistants: The Hospital employs
two operating room assistants whose functions are to
assist the registered nurse in charge of the operating
room, to keep the room clean, and to maintain the
necessary supplies needed therein. The educational
requirements for this work are minimal, and they are
not qualified to and do not assist in the actual
surgery even though they wear uniforms similar to
those in the surgical team and are present in the
room during surgery.
Surgical Supply Assistant: The Hospital maintains a
central supply room for purposes of receiving
supplies and dispensing them as needed throughout
the Hospital and (presumably) the Clinic.3 This
operation is staffed by two people, one of whom,
Sam Frances, has the authority to hire and fire and
had in fact hired the current assistant. The assistant
is responsible for receiving requisitions for expenda-
ble supplies from the nursing area and the operating
room, and upon receipt of the requisition, filling the
order as quickly as possible, and delivering the
material to the requesting area. In addition to this
function, the assistant also has the responsibility to
sterilize reusable operating room equipment. In the
course of performing these duties, the assistant
makes frequent trips into the nursing area.
Pharmacy Assistants: The medical complex oper-
ates a pharmacy which sells and dispenses medicine
and other products to the patients of both the
Hospital and the Clinic. Clinic patients normally
secure their medications directly from the pharmacy
which is located just off the Clinic area. Hospital
patients normally receive their pharmaceuticals
through the nursing stations whose attendants
transmit the prescription to the pharmacy. All
medications and prescriptions are dispensed by
pharmacists. The two assistants in this department
do not have any formal educational requirements
and do not play any role in the actual preparation of
the medications. Their basic functions are to receive
orders, type labels, and deliver medications to the
various Hospital and Clinic areas. In the course of
performing their delivery functions, the pharmacy
assistants spend approximately half of their work-
time in the Hospital area.
The Petitioner would exclude the X-ray assistants,
physical-inhalation therapists assistants, pharmacist
assistants, and laboratory assistants on the ground
that they are technical employees. The Petitioner
would also exclude the operating room assistants on
the ground that they are part of the surgical team
taking part in operations, and the surgical supply
assistants on the ground that they share no commu-
nity of interest with the employees in the petitioned-
3 The record is unclear as to whether the central supply room is the same unit status was not litigated . As there is nothing in the record to determine
storage facility as the storeroom . If in fact these facilities are separate areas , whether these employees (if they exist) should be included or excluded from
the record also shows that there are two employees in the storeroom whose the unit, we shall allow them to vote subject to challenge.
592 DECISIONS OF NATIONAL LABOR RELATiONS BOARD
for unit. The Petitioner would also note that all of
these employees are under different supervision. The
Employer would include these employees on the
ground that they are not technical employees, work
in the same general area as most of the employees
sought by the Petitioner, share the same fringe
benefits as those employees, and enjoy a close
community of interest with those employees in the
petitioned-for unit.
Based on the record before us, we agree with the
Employer that the employees in these categories
properly belong in the unit. It is clear that these
employees in many instances literally work side by
side in the Hospital patient care area with those
employees the Petitioner would include in the unit,
sharing the same fringe benefits. As these employees
have a close community of interest with the employ-
ees in the unit, we shall include them in the unit.4
In addition to the above, the Employer would
exclude four LPN's identified as team supervisors,
because of their supervisory status. The Petitioner
contends that these individuals are not supervisors
and should be included in the unit. The record shows
that, shortly before the hearing in this case, the
Employer, being unable to fill all of the positions of
team supervisor with competent registered nurses,
selected four of the LPN's to fill these vacant
positions. The Hospital operates on a three-shift
basis 7 days a week. In charge of each shift is a
nursing supervisor, who on the second and third
shifts, due generally to the absence of administrative
personnel, is in charge of the entire hospital
operation. The parties have stipulated that these
nursing supervisors are supervisors. Below each of
the nursing supervisors on each shift are three team
supervisors who are assigned one each to one of the
three sections and who direct the work of at least one
LPN and four aides and are responsible for the care
of approximately 24 patients in their section. With
the exception of the four LPN's involved herein, all
of the other team supervisors are registered nurses
who, regardless of their supervisory status, would be
excluded from the unit as professional employees.
Hospital Administrator Ebaugh testified that the
team supervisors have the authority to assign the
LPN's and aides to specific rooms and designate 'lie
proper nursing care to be provided by those
employees to the patients in those rooms. In
addition, the record shows that the director of
nursing conducts biweekly supervisory meetings
whi^,h are attended by nursing supervisors and all
team supervisors including the four in issue here. At
these meetings, in addition to patient problems,
problems involving evaluation of employees assigned
to the nursing area are discussed and considered. The
team supervisors also evaluate nursing personnel for
purposes of wage increases, they authorize overtime
for and grant time off to members of their team, and,
according to the testimony of Ebaugh, one of the
four involved herein was instrumental in the termina-
tion of two nursing assistants. The record also shows
that line nurses who are not team supervisors have no
authority over the LPN's, and LPN's who are not
team supervisors have no authority over nurses aides
or other members of the team. In addition the LPN's
who are team supervisors receive approximately 45
to 50 cents an hour more than those LPN's engaged
in regular nursing duties, and the LPN team
supervisors spend almost 85 percent of their time in
administrative functions as against a very limited
amount of time engaging in actual nursing functions.
As these four individuals responsibly direct employ-
ees assigned to their section and are in a position to
effect or recommend personnel action with regard to
the employees, attend supervisory meetings, and as
team supervisors receive substantially higher pay
then the regular LPN's, we find that they are
supervisors and exclude them from the unit.
Accordingly, we find the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees of the North Dade Medical
Complex including all aides or nursing assistants,
dietary employees, housekeeping employees,
maintenance employees, non-licensed physical
therapists, ward clerks, licensed practical nurses,
medical record clerks, emergency room clerks, X-
ray assistants, inhalation therapy assistants, labo-
ratory assistants, pharmacy assistants, surgical
supply assistants, operating room assistants, but
excluding uniformed clericals including recep-
tionists, billing clerks, cashiers, PBX operators,
admissions clerks, and all other office clerical
employees and guards and supervisors as defined
in the Act.
[Direction of Elections and Excelsior footnote
omitted from publication.]
4 Glover Park Medical Services, Inc., 200 NLRB No 44 event the Petitioner does not have a sufficient showing of interest in the unit
5 As the unit found appropriate is broader than that originally petitioned found appropriate herein the Petitioner shall have 10 days in which to
for by the Petitioner, the Regional Director shall determine whether its submit an additional showing of interest.
showing of interest is sufficient before proceeding with the election. In the