North Dade Hospital, Inc.

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