Staten Island University Hospital

National Labor Relations Board - Board Decisions

Jul 29, 1992

308 N.L.R.B. 58 (N.L.R.B. 1992)

59
308 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The collective bargaining agreement also covers a relatively
small number of RN’s employed at ancillary sites, such as at the
South Beach Psychiatric Center, at the South site’s Alcohol Detoxi-
fication Unit (which had formerly been located at the North site),
at a few school-based clinics and at a dental clinic.
Staten Island University Hospital and Federation of
Nurses/UFT, Petitioner. Case 22–RC–10585
(formerly 29–RC–7872)
July 29, 1992
ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Employer’s and Intervenor New York State Nurses
Association’s requests for review of the Regional Di-
rector’s Decision and Direction of Election are denied
as they raise no substantial issues warranting review.
A copy of the Regional Director’s decision is attached.
The Employer’s request for a stay of the election is
also denied.
MEMBER OVIATT, concurring.
Congress, when it enacted the health care amend-
ments to the Act in 1974, expressed concern over unit
proliferation. See S. Rep. No. 93–766 at 5 (1974); H.
R. Rep. No. 93–1051 at 6–7 (1974). The Supreme
Court in American Hospital Assn. v. NLRB, 111 S.Ct.
1539 (1991), interpreted these specific concerns about
unit proliferation in acute care hospitals as a warning
to those who interpret the amendments that, if unnec-
essary or substantial proliferation of units is permitted
or encouraged, such might result in Congressional ac-
tion. Id. at 1544–1545. We should therefore guard
against such proliferation. In accordance with that prin-
ciple, I believe that, even where there are two geo-
graphically separate hospitals with separate immediate
supervision in the same department at both hospitals,
the circumstances may nonetheless warrant accreting
the nurses unit at one of the two hospitals into the
larger unit. In this case, however, after the 1987 merg-
er, and the 1989 U.S. Government recognition of the
two divisions as constituting one hospital, the Em-
ployer continued to negotiate separately with the
nurses at each hospital. In these circumstances, I agree
with my colleagues that the South site has not been
accreted to the unit of RNs at the North site, and that
the Regional Director correctly directed an election in
the RN unit at the South site.
APPENDIX
Petitioner seeks to represent the approximate1y 230 full-
time and regular part-time Registered Nurses (herein RN’s)
including per diem RN’s, employed by the Employer at its
375 Seguine Avenue, Staten Island, New York facility (here-
in South site), but excluding all discharge planners, utiliza-
tion review coordinators, managerial employees, guards and
supervisor, as defined in the Act. The Employer maintains
that, because of a merger of its operations the unit sought
by the Petitioner is an accretion to the unit of appropriate
679 RN’s employed at its 475 Seaview Avenue, Staten Is-
land, New York facility (herein North site), who are rep-
resented by NYSNA, and, therefore, it is an inappropriate
unit for purposes of collective bargaining. Alternatively the
Employer maintains that, even if the Regional Director deter-
mines that the South site unit is not an accretion to the North
site unit, because of the functional integration of nursing
services and the community of interest shared by all RN’s,
the only appropriate unit is a single overall unit composed
of RN’s employed at both sites. The Employer maintains,
however, that conducting an election at the present time to
determine the collective-bargaining representative, if any, of
the employees in the combined unit would be time-barred be-
cause of the current collective bargaining agreement in effect
between it and NYSNA, and that the petition herein should,
therefore, be dismissed.
The Employer, a not for profit corporation, is a health care
institution which operates a multi-site acute care hospital in
Staten Island. Its North site, formerly known as Staten Island
Hospital, is a 465 bed facility while its South site, formerly
known as Richmond Memorial Hospital, is a 201 bed facil-
ity. The two facilities are aproximately 8 miles apart but, be-
cause of traffic conditions, it takes about a half hour to travel
between them.
RN’s employed at the North site have been represented,
for purpose of collective bargaining, by NYSNA since about
1972. The current collective bargaining agreement between
the Employer and NYSNA is effective from April 1, 1991
to March 31, 1993.4 RN’s employed at the South site have
been represented, for purposes of collective bargaining, by
RCNA since about 1974. The most recent collective bargain-
ing agreement between the Employer and RCNA was to have
expired on August 31, 1990, but was extended, by written
agreement of the parties, until October 31, 1991.
In about Spring 1987, Staten Island Hospital and Rich-
mond Memorial Hospital decided to consolidate and merge
their business operations, in an attempt to be able to provide
medical services to the community on a better and more
cost-effective basis. They then became a single, not-for-profit
corporation, known as Community Health System of Staten
Island, Inc. (herein CHS). Each hospital functioned as a sep-
arate division of CHS, with an initial directive from its
Board of Trustees to seek economies of scale, yet to main-
tain separateness between the divisions so as not to obliterate
their formerly independent status. While operating under this
directive, the divisions maintained separate human resource
departments, separate annual budget and audits, separate ad-
vertising and RN recruitment, separate reviews by the Joint
Commission on Accreditation of Healthcare Organizations
(herein JCAHO, a voluntary organization which establishes
standards for the provision of medical services and measures
a hospital’s compliance with those standards) and separate
provider numbers for the purpose of goverment reimburse-
ment for the provision of medical services. In about 1989,
however, CHS determined that, for a variety of reasons, it
would be advantageous to integrate the divisions to a greater
extent, and it embarked on efforts to do such. Also, in 1989,
both divisions of CHS became recognized by the Federal
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Government as one hospital. To solidify the idea of one hos-
pital in the eyes of the community and to further the recogni-
tion of its being the major teaching affiliate of the State Uni-
versity of New York Health Service Center at Brooklyn,
CHS changed its name to Staten Island University Hospital.
The former Staten Island Hospital became the North site and
the former Richmond Memorial Hospital became the South
site. The record reflects, however, that the South site is still
commonly referred to by staff and others in the community,
as Richmond Memorial Hospital.
The Employer’s Senior Executives including its President,
Vice Presidents and Associate Vice Presidents, are respon-
sible for overseeing the operation of all sites where employ-
ees work, including the North and South sites. There is now
a single budget and audit, a single reimbursement provider
number covering all sites and the hospital receives one ac-
creditation from JCAHO whose standards require, among
other things, that each department, including the nursing de-
partment, operate according to a uniform set of policies and
procedures. Further, finance and purchasing of supplies has
been centralized, as has billing systems. Other computer data
base systems, such as laboratory functions and patient infor-
mation, have been centralized. The Employer also puts out
a monthly employee newsletter for employees at both sites,
although in the newsletters an ‘‘employee of the month’’ is
selected for each site. Additionally, a mail delivery shuttle
operates regularly between the sites, a common telephone in-
ternal extension system is in place at both sites, and a single
access card permits an employee to enter, and park at, either
site.
With respect to the Employer’s Nursing Department, in
which the employees sought to be represented are employed
the record reflects that that department has overall respon-
sibility for the nursing services provided both the North and
South sites. However, the Department of Nursing Organiza-
tion Plan submitted to JCAHO for accreditation purposes
states that the department is organized to operate through a
‘‘decentralized management structure.’’
Dorothy Lucik, Sr. Vice President for Nursing, heads the
department and Joan Knighton, Vice President for Nursing
Operations, reports directly to her. Both have overall respon-
sibility for the department. Directly under Knighton in the
department’s table of organization are Assistant Directors of
Nursing (ADN’s), each responsible for a group of units. Par-
ticular units supervised by an ADN’s include intensive care
(ICU), cardiac care (CCU), hemodialysis (HEMO), emer-
gency room, ambulatory surgery, ambulatory care, substance
abuse, alcohol detoxification, labor and delivery, nursery, pe-
diatrics, pediatric ICU, prenatal testing, radiology, vascular
lab, cardiac catherization and intravenous (IV) team. While
each site has most of these units, some units are only located
at one of the sites. For example, substance abuse and alcohol
detoxification are located only at the South site, while labor
and delivery, nursery, pediatrics, pediatric ICU, cardiac
catherization and IV team are located only at the North site.
Nearly all of the ADN’s only work at one of the sites and,
with only one exception, the units which they supervise are
all located at the same site.
The ADN’s appear to have little supervisory contact with
staff nurses. Immediate day-to-day supervision of staff nurses
is provided by nursing care coordinators (NCC’s), or by
Nurse Managers (NM’s) to whom NCC’s report. The record
reflects that NCC’s, among other tasks, prepare time sched-
ules and independently approve requests for time off, includ-
ing vacation requests, scheduling changes and requests to ar-
rive late or leave early. Where appropriate, they independ-
ently adjust grievances filed by staff employees. They also
interview job applicants and make hiring recommendations to
the NM’s. Further, they evaluate employees’ performance
and independently reprimand and counsel staff employees,
orally and in writing, as needed. They also make rec-
ommendation to, and consult with, NM’s regarding decisions
to suspend or terminate employees. Additionally, they assign
and direct staff in the unit, and assign overtime, as necessary.
NM’s, among other duties, view recommendations of NCC’s
regarding the hiring of nursing staff and the retention of staff
employees during their probationary period. They also review
time and vacation schedules and written evaluations of staff
prepared by the NCC’s. If appropriate, they will also resolve
grievances which rise to their level. The record reflects that
the duties and responsibilities of NCC’s and NM’s are lim-
ited to the site at which they work.
A Human Resources Department, responsible for employ-
ment related matters, such as recruitment, orientation, con-
tinuing education, wages and benefit administration, collec-
tive bargaining and grievance resolution, is located in a
building near the North site. Personnel records are also
housed there. That department is headed by a Sr. Vice Presi-
dent for Human Resources. Reporting to him is Janet
Kolibus, Director of Employee Relations. Under them are
Donna Cahill, Employee Relations Manager, who works in
an office at the North site, and Pat Caldari, Employee Rela-
tions Specialist, who reports Cahill and works in an office
at the South site. Cahill and Caldari are designated to answer
day-to-day inquiries from staff relating to personnel matters.
They also handle grievances, if necessary, which are not oth-
erwise resolved. As noted above, NCC’s or NM’s at their re-
spective sites have independent authority to handle and re-
solve grievances which occur in their department. Only if
grievances cannot be resolved by them will they be handled
by a Human Resource Department representative who works
at their site. It appears that most grievances arising within
the nursing department are resolved by a Nursing Depart-
ment representative or a Human Resources Department rep-
resentative who works at the site where the grievances arise.
If the dispute, however, involves a major issue, or cannot
otherwise be resolved, it may be brought to the attention of
a higher level Human Resources Department representative
who may work at a different site.
With respect to the recruitment RN’s for job openings, the
record reflects that applicants who are not already employed
by the Employer must undergo an initial screening done by
a Recruitment Manager from the Human Resources Depart-
ment. Furthermore, job openings at either site are posted at
both sites. As noted above, interviews for RN positions are
done by a NCC employed at the site where the opening ex-
ists, and the NCC makes hiring recommendations to an NM,
also employed at the site, who acts upon the recommenda-
tion. In some cases, the NM may also personally interview
the job applicant before making a hiring decision.
The record reflects a very limited amount of permanent
transfer of RN’s between sites, despite the fact that job open-
ings for RN’s at either site are posted at both sites. Thus,
in 1990, of the 231 job openings for RN’s filled on the
61STATEN ISLAND UNIVERSITY HOSPITAL
5 This does not include instances when an RN who works at one
site may also, on occasion, work at the other site as an ‘‘agency
nurse,’’ that is an employee of an agency whom the Employer has
contacted to supply labor, because a staff shortage has occurred.
North site, only 4 were filled by RN’s who transferred from
the South site, and of the 131 job openings for RN’s filled
on the South site, only 5 were filled by RN’s who transferred
from the North site. Further, in the first nine months of 1991,
of the 123 job openings for RN’s filled on the North site,
only 3 were filled by RN’s who transferred from the South
site, and of the 49 job openings for RN’s filled on the South
site, only 10 were filled by RN’s who transferred from the
North site.
With respect to other interchange among RN’s at the two
sites, the record reflects that, of the approximately 909 non-
supervisory RN’s employed at the sites, only about four to
six work at both sites.5 While RN’s are, if necessary, asked
to cover for absences on their own unit and, less frequently,
on other units at their site, they do not appear to be asked
to cover for such absences at other sites. This is because
management interprets JCAHO standards as discouraging the
regular transfer of RN’s off their unit, and especially from
site to site, because such transfers would interfere with the
continuity of patient care. One RN however, who had trans-
ferred from North to the South site, volunteered for, and has
been given, overtime work at the North site.
When RN’s are hired by the Employer for either the North
or South site, they receive the same orientation together. Ori-
entation programs for new hires are conducted monthly.
RN’s from both sites also participate jointly in in-service
training programs. These continuing education classes must
be conducted annually to meet JCAHO requirements. How-
ever, other in-service training programs conducted throughout
the year are limited to employee working in a particular unit
at a site.
The record reflects that, on occasion, patients from one
site are transferred to another site, either to take special tests
not available at their site or to be placed within a unit at the
other site. Thus, out the 5,447 patients admitted to the South
site during the first eight months of 1991, 170 were trans-
ferred to the North site for some reason. Also, of the 13,236
patients admitted to the North site during the same period of
time, 60 were transferred to the South site for some reason.
When these transfers occur, an RN who had cared for the pa-
tient gives a report concerning the patient to an RN at the
other site. The report consists of information about the pa-
tient’s status, diagnosis and previous treatment. This report,
however, is no different than the report which would be
given to an RN at a different hospital if the patient were to
tranfer there. Patients and their physicians are given full
choice with respect to the location of their transfer. For some
units it appears that transfers when they occur, are more fre-
quent to another hospital than to a different site.
The record also reflects that while RN’s at the North and
South sites appear to exercise similar professional skill, their
functions may differ, depending upon the site where they
work. For example, as noted above, RN’s on the North site
work in a labor and delivery unit, a nursery unit, a pediatric
unit, a cardiac catherization unit and IV team unit, none of
which exist at the South site. Further, RN’s at the South site
work in a substance abuse unit which does not exist at the
North site. Additionally, nurses on the South site may be as-
signed to rotate between the ICU, CCU and HEMO unit on
a regular basis, while RN’s on the North site are assigned
to only one of those units. Moreover, RN’s who work in the
emergency room at the South site will see all types of pa-
tients, while North site emergency room RN’s are assigned
to patients with particular types of problems, such as cardiac,
trauma, etc. Also, some units at the North site may utilize
different equipment than that utilized in a similar unit on the
South site, and RN’s at one site may not know how to oper-
ate all of the equipment located in a similar unit at the other
site.
While the wages of RN’s at the South site had, in the past,
been less than that received by RN’s at the North site, in the
same classification and with the same number of years of ex-
perience, in 1989 the Employer negotiated amendments to its
collective bargaining agreement with RCNA, which amend-
ments brought the wages of South site RN’s up to the same
level as those received by North site RN’s represented by
NYSNA. RN’s are paid every two weeks, with those em-
ployed at the two sites being paid on alternate weeks. Full-
time RN’s at both sites work either a regular or alternate
work schedule totalling 75 hours per pay period. Part-time
RN’s and per diem RN’s are employed at both sites, but the
North site employs a higher percentage of full-time RN’s
than does the South site, whose predominant complement of
RN’s are employed on a part-time basis. Per diem RN’s at
the South site also enjoy more flexibility in the scheduling
of their hours than do their counterparts on the North site.
North site RN’s sign in when they arrive and leave work,
while South site RN’s punch a time clock.
The record reflects that seniority is accrued equally for
full-time and part-time RN’s on the South site, based upon
their date of hire, and they are maintained on the same se-
niority list. On the other hand, seniority for North site part-
time RN’s is prorated, and they are maintained on a separate
seniority list from full-time RN’s. Seniority is used to deter-
mine an RN’s layoff and recall rights, their entitlement to
(and scheduling of) vacation benefits, and their entitlement to
(or right to refuse) overtime assignments.
At the North site, RN’s receive health insurance under a
NYSNA Health Insurance Fund Plan, to which the Employer
contributes. The Employer pays the full cost of coverage for
full-time employees but only a prorated portion of cost for
part-time RN’s. The part-time RN’s must pay the remaining
portion of the cost, if they elect to receive such coverage. At
the South site, however, RN’s are allowed to select the var-
ious benefits that they will receive under a Flexible Benefit
Plan, which plan is also available to the Employer’s non-
unionized employees. Employees selecting the High Option
Plan, which is most equivalent to the NYSNA plan, must pay
a portion of the cost, to receive coverage. Part-time RN’s at
the South site are entitled to select and receive, in most in-
stances, the same extent of medical benefits as is provided
to full-time RN’s, and at the same cost. Further, all RN’s at
the South site, otherwise insured, may elect not to receive
health coverage and may, instead, have the cost of such cov-
erage paid to them as additional salary. North site RN’s,
however, do not have this option.
The Board has followed a restrictive policy in finding ac-
cretions to existing units because it seeks to insure that the
employees’ right to determine their own bargaining rep-
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Safeway Stores, 256 NLRB 918 (1981).
7 Executive Resources Associates, 301 NLRB 400 (1991); Super
Value Stores, 283 NLRB 134 (1987); Town Ford Sales, 270 NLRB
311 (1984), enfd. 759 F.2d 1477 (9th Cir. 1985); Safeway Stores,
Inc., 256 NLRB 918 (1981); Melbet Jewelry Co., 180 NLRB 107
(1969); Great Atlantic & Pacific Tea Co., 140 NLRB 1011, 1021
(1963).
8 Black & Decker Mfg. Co., 147 NLRB 825 (1964); Dixie Belle
Mills, 139 NLRB 629, 631–632 (1962).
9 Manor Healthcare Corp., 285 NLRB 224 (1987); Samaritan
Health Services, 238 NLRB 629, 632 (1978); National G. South, 230
NLRB 976, 978 fn. 5 (1977).
10 West Jersey Health Club, 293 NLRB 749 (1989).
11 Cases cited by the Employer and/ or NYSNA in support of their
position that only a multi-site unit is appropriate, such as West Jer-
sey Health Systems, supra; Kaiser Foundation Health Plan of Or-
egon, 225 NLRB 409 (1976); Baptiste Memorial Hospital, 224
NLRB 201 (1976); Saddleback Community Hospital, 223 NLRB 247
(1976); Mercy Hospital of Sacramento, Inc., 217 NLRB 765 (1975);
and, Community Hospital at Glen Cove, 29–CA–14910 (unpublished
dismissal letter, July 31, 1990), are distinguishable from the instant
case. In all of the cited cases, certain factors, not present here, mili-
tated in favor of multi-site unit, such as regular interchange of em-
ployees between units, a requirement of mandatory overtime at a dif-
ferent site, common immediate supervision, no separate bargaining
history, greater similarities in skills, duties and working conditions
and/or a more complete integration of facilities.
resentative is not foreclosed. It will find a valid accretion
‘‘only when the additional employees have little or no sepa-
rate group identity . . . and when the additional employees
share an overwhelming community of interest with the pre-
existing unit to which they are accreted [footnotes omitted,
emphasis added].’’6 In making this determination, the Board
considers many different factors, including the geographic
proximity of the two facilities, bargaining history, whether
the two facilities have an integrated operation, similarity in
skills and duties of the employees at the two facilities, simi-
larity of their working conditions, contact between employees
at the two facilities, the degree of their interchange and the
extent of common day-to-day supervision of the two groups
of employees.7
Applying these factors to the instant case, it does not ap-
pear that the South site RN’s have lost their group identity,
or that they share an overwhelming community of interest
with North site RN’s, as a result of the merger of the two
former hospitals. While the facilities are only 8 miles apart,
it still takes about a half hour to travel between them. Fur-
ther the employees at the two sites have historically been
represented separately and, even after the merger of the two
hospitals in 1987, the Employer has continued to bargain
separately with NYSNA and RCNA over the terms and con-
ditions employment of RN’s employed at the two sites.
While the two facilities have consolidated and integrated sev-
eral of their operations, the nursing department, in which the
employees sought to be represented are employed is, still or-
ganized to operate through a decentralized management
structure. Further, each facility still provides on its own, sub-
stantially all of the patient care services normally provided
by an acute care hospital. Additionally, while RN’s at the
two sites exercise the same type of skills, their duties may
differ even within the same type of unit, depending upon
which site they are employed. Also, while the wages for
RN’s at the two sites are similar, there are significant dif-
ferences in the extent to which each site employs part-time
RN’s, and the terms and conditions of employment applica-
ble to part-time RN’s, including the method by which they
accrue seniority, and their entitlement to, and the scope of,
fringe benefits they receive. Moreover, there are differences
at the two sites in the health care benefits made available to
full-time employees as well. Further, the only contact be-
tween RN’s at the two sites, in addition to their joint orienta-
tion upon being hired and their annual joint in-service train-
ing, appears to be limited to their giving of reports to each
other when patients are transferred between sites, which re-
ports are no different than those given when patients transfer
to other facilities. Permanent transfers of RN’s between sites
is also negligible, and there is virtually no temporary inter-
change of employees between sites. Additionally, RN’s at the
two sites do not have common immediate day-to-day super-
vision provided by NM’s or NCC’s, who appear to have
broad authority with respect to employment-related matters.
Based upon the above, and the record as a whole, I find that
the unit of RN’s employed by the Employer at its South site
has not been accreted to the unit of RN’s employed by the
Employer at its North site.
There remains for consideration whether the unit of RN’s
employed the Employer at its South site, is, by itself, an ap-
propriate unit for purposes of collective bargaining. The
Board has long held that a single-facility unit geographically
separated from other facilities operated by the same em-
ployer is presumptively appropriate for the purpose of collec-
tive bargaining, even though a broader unit might also be ap-
propriate.8 It has also applied such a rebuttable presumption
as to the appropriateness of a single facility unit in the health
care industry, even after taking into account Congress’ con-
cern, as reflected in the legislative history of the 1974
amendments to the Act, with preventing undue proliferation
of units in that industry.9 The Board continues to weigh tra-
ditional factors in deciding whether the presumption has been
overcome, similar to the factor considered in determining
whether an accretion has occurred, such as geographic prox-
imity, employee interchange and transfer, functional integra-
tion, administrative centralization, common supervision and
bargaining history.10
Based upon a consideration of the above factors, and the
record as whole, and for the reasons described in my discus-
sion of the accretion issue, I find that the Employer herein
has not met its burden of rebutting the presumption of the
appropriateness of a unit of RN’s at the South site, or pur-
poses of collective bargaining.11 Accordingly, I find that the
following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time Registered Nurses,
including per diem Registered Nurses, employed by the
Employer at its 375 Seguine Avenue, Staten Island,
New York facility, but excluding all discharge planners,
utilization review coordinators, managerial employees,
guards and supervisors, as defined in the Act, and all
other employees.