Teamsters Local 996 (Kapiolani Medical)

National Labor Relations Board - Board DecisionsFeb 24, 1984

268 N.L.R.B. 1071 (N.L.R.B. 1984)

TEAMSTERS LOCAL 996 (KAPIOLANI MEDICAL) Hawaii Teamsters and Allied Workers Union, Local 996, IBT and Kapiolani/Children's Medical Center & Hawaii Nurses Association. Case 37- CD-41 24 February 1984 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The charge in this Section 10(k) proceeding was filed 19 August 1983 by the Employer, alleging that the Respondent, Hawaii Teamsters and Allied Workers Union, Local 996, IBT, herein called Local 996, violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to employees represented by Hawaii Nurses Association, herein called HNA. The hearing was held 19 September 1983 before Hearing Officer Edward J. Parnell. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Company, a Hawaii corporation, is engaged in the provision of acute care specialty services in obstetrics, gynecology, and pediatrics at its facility in Honolulu, Hawaii, where, in calendar year 1982, it received total revenues in excess of $1 million. During the same period, it purchased and received goods and materials valued in excess of $1 million, directly or indirectly, from points located outside the State of Hawaii. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 996 and the HNA are labor or- ganizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Work in Dispute The disputed work, which was stipulated to by the parties, involves the assignment of second call for support personnel in the afterhours adult oper- ating room at Kapiolani/Children's Medical Center. 268 NLRB No. 160 B. Background and Facts of Dispute The Employer operates a 260-bed medical facili- ty in Honolulu, Hawaii. It is the only hospital in the State specializing in obstetrics, gynecology, and pediatrics. The HNA represents all registered nurses employed at the hospital. Local 996 repre- sents employees in a service and maintenance unit which includes operating room technicians. "Second call," the work in dispute, is an aspect of the Employer's staffing arrangement for the af- terhours adult operating room at the hospital. Af- terhours surgery involves "emergency" or "emer- gent" surgery; i.e., surgery that is performed in re- sponse either to a life-threatening situation or to a situation which, while not potentially fatal, requires immediate attention. When off-duty employees are "on call," they are required to be available on a standby basis for duty in the operating room. The Employer has traditionally utilized two em- ployees for its oncall schedule. For at least the last 12 years, registered nurses qualified in operating room procedures have been formally designated, and exclusively used, for first call pursuant to a re- quirement of the Joint Commission on Accredita- tion of Hospitals. Registered nurses on first call re- ceive a standby wage differential, currently $2.50 per hour. Prior to March 1982, the procedure for second call was informal and not limited to regis- tered nurses: a list of qualified registered nurses would be consulted; if none of the nurses was available or willing to serve on second call, an available operating room technician would be called in. There was no standby pay differential for second call. In March 1982, the Employer decided to formal- ize the second call designation. This decision was necessitated by two occurrences. First, a complaint was made by a surgeon following an operation in the afterhours adult operating room: the surgeon had been unable to get either a registered nurse or an operating room technician to serve on second call. Second, the afterhours operating room loca- tion was moved to an area of the hospital where support personnel from other departments were not readily available in the event of an unforeseen emergency. The Employer determined that, for reasons of economy and efficiency, the employees to be formally designated for second call would be registered nurses, not operating room technicians. This matter was bargained with the HNA; it was agreed that the new formal second call status would be supported by a wage differential equal to that for first call. When the new second call procedure was imple- mented in March 1982, the union then representing 1071 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the operating room technicians, the United Public Workers, did not file a grievance. In July 1982, Local 996 displaced the UPW as the bargaining representative of the technicians. In subsequent contract negotiations the Employer, for reasons which are not satisfactorily explained in the record, agreed to give second call, with a wage differential of $2 per hour, exclusively to the operating room technicians. This latest second call procedure was included as a part of the collective-bargaining con- tract signed in December 1982; the Employer im- plemented the procedure in January 1983. The HNA filed a grievance concerning its loss of second call designation, and the grievance proceed- ed to arbitration. In May 1983, the arbitrator issued a decision awarding second call to the registered nurses exclusively, as required by the agreement between the HNA and the Employer in March 1982. Local 996 did not participate in the arbitra- tion hearing, and the arbitrator's decision did not formally consider the effect of Local 996's agree- ment with the Employer in December 1982. In compliance with the arbitration award, the Em- ployer switched back to utilizing registered nurses exclusively in August 1983. C. Contentions of the Parties The Employer and the HNA contend that the Employer is contractually bound by its March 1982 agreement to utilize registered nurses for second call. The Employer further contends that the use of registered nurses for second call is supported by the superior skills of registered nurses, by greater efficiency and economy of operation, and by its own preference. Local 996 contends that the Employer is con- tractually bound by its December 1982 agreement to use operating room technicians for second call. It further contends that, in threatening to picket the Employer's premises, it is lawfully enforcing its collective-bargaining contract with the Employer, and that, therefore, there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated. Local 996 finally contends that, even if it assumed that the Board has the jurisdictional authority to decide this dispute, the Board cannot resolve the matter properly without evidence of the practice of other hospitals in the area concerning off-hours op- erating room staffing procedures. D. Applicability of the Statute By letter dated 17 August 1983, Arthur Rut- ledge, president of Local 996, informed the Em- ployer's director of personnel of the Union's inten- tion to picket the Employer's premises due to the Employer's assignment of second call work to the registered nurses.' At the hearing, the Employer and Local 996 stipulated that there was no method agreed upon by all parties for voluntary adjustment of the dis- pute. While the HNA refused to join in this stipula- tion, it offered no evidence to demonstrate the ex- istence of an alternative, voluntary resolution pro- cedure which would be binding on all parties. Based on the foregoing, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. I. Collective-bargaining agreements As set out above, each of the Unions contends that the work in dispute is specifically covered by the terms of its agreement with the Employer. On review of the respective contracts and the sur- rounding circumstances, we find that both the reg- istered nurses and the operating room technicians have valid contractual claims to the disputed work. Accordingly, we conclude that this factor favors assignment of the work to neither party; in effect, the conflicting contractual claims neutralize each other. Iron Workers Local 8 (PPG Industries), 267 NLRB No. 122 (Aug. 26, 1983); NLRB v. Graphic Arts Union No. 1P, 600 F.2d 336 (2d Cir. 1979). 2. Past practice The record shows that, prior to March 1982, the Employer's theoretical procedure for assignment of I We note Local 996's contention that its threat to picket for the pur- pose of enforcing its collective-bargaining agreement with the Employer is lawful activity, and therefore does not constitute reasonable cause to believe that Sec. 8(bX4XD) has been violated. However, we also recog- nize that the HNA's claim to the disputed work is at least as valid under the terms of its agreement with the Employer. Given these circum- stances, we find that the reasonable cause standard has been met. 1072 TEAMSTERS LOCAL 996 (KAPIOLANI MEDICAL) second call was to exhaust the list of available reg- istered nurses before designating an operating room technician. In practice, it is apparent that the tech- nicians often served on second call, as the listed registered nurses were frequently unavailable or unwilling to serve. After the Employer formalized the second call procedure, and added a pay differ- ential, it utilized registered nurses exclusively from March 1982 until early January 1983. At that time, its agreement with Local 996 having been finalized, the Employer began to use the technicians exclu- sively for second call. In August 1983 the Employ- er, in implementing the arbitrator's directive, switched back to the exclusive use of registered nurses. Based on these patterns, we find that, at first, the Employer's scheduling practice was not predeter- mined in favor of the registered nurses or operating room technicians; then, after March 1982, its prac- tice swayed back and forth, depending on the labor-management exigencies of the moment. We conclude that the Employer's past practice does not favor an award of the disputed work to either party. 3. Area practice Local 996 contends that the present dispute cannot be properly decided without consideration of the off-hours operating room staffing procedures in other hospitals in the area. However, it failed to offer evidence of such practice when given the op- portunity at the hearing. The Employer's position is that Kapiolani/- Children's Medical Center offers specialized surgi- cal facilities and services in obstetrics and gynecol- ogy, and that it has the only off-hours operating room in the State functioning on this basis. Under these circumstances, we agree with the Employer that no relevant evidence of area practice is avail- able and, thus, it is not a factor in this proceeding. 4. Relative skills Following comprehensive instruction, registered nurses are licensed by the State of Hawaii. After a special training course in surgical procedures, qualified registered nurses are assigned to the hos- · ital's operating rooms. Their duties in relation to -surgical care include the legal responsibility to ac- count for surgical instruments, preoperative and postoperative evaluation of patients' status, admin- istering drugs, IVs, and resuscitation, keeping pa- tients' records, and generally ensuring a high qual- ity of patient care. Operating room technicians are given between 8 and 18 months of training, depending on the loca- tion of the training facility. Their duties do not in- clude direct patient care. They are responsible for opening the operating room, arranging the proper instruments on the surgeon's tray, passing the in- struments to the surgeon during an operation, and cleaning up the operating room following surgery. In short, while a registered nurse is able to per- form all the functions of a technician, the techni- cian is not qualified to perform all the duties of a registered nurse in the operating room. We con- clude that, in the area of relative skills, the regis- tered nurses are clearly more qualified to meet the potential requirements of the work involved on second call. 5. Economy and efficiency of operations and the Employer's preference There was uncontroverted testimony that the ex- clusive use of registered nurses on second call would tend to guarantee the most effective surgical care for patients in all situations. This is especially significant where, due to unforeseen circumstances, only one of the scheduled oncall employees ap- pears for duty; the designation of two registered nurses tends to assure that at least one registered nurse will be present in the off-hours operating room. The Employer's preference for the exclusive use of registered nurses is based on the analysis imme- diately above. The Employer's medical director stated at the hearing that the use of registered nurses is desirable because it provides the greatest flexibility of skills with the least number of neces- sary personnel. We find that the factors of economy and efficien- cy of operation and the Employer's preference favor an award of the disputed work to the regis- tered nurses. Conclusions After considering all the relevant factors, we conclude that employees represented by the HNA are entitled to perform the work in dispute. We reach this conclusion relying on the relative skills of the two groups of employees, the Employer's preference, and economy and efficiency of oper- ation. In making this determination, we are award- ing the work to employees represented by the HNA, not to that Union or its members. The deter- mination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Kapiolani/Children's Medical Center represented by Hawaii Nurses Association 1073 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are entitled to perform the assignment of second call for support personnel in the afterhours adult operating room at Kapiolani/Children's Medical Center. 2. Hawaii Teamsters and Allied Workels Union, Local 996, IBT, is not entitled by means proscribed by Section 8(bX4)(D) of the Act to force Kapiolani/Children's Medical Center to' assign the disputed work to employees represented by it. 3. Within 10 days from this date, Hawaii Team- sters and Allied Workers Union, Local 996, IBT, shall notify the Regional Director for Region 20 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination. 1074