Paramount General Hospital, Inc.

PARAMOUNT GENERAL HOSPITAL, INC. Paramount General Hospital, Inc. and Hospital and Service Employees Union Local 399, Service Em- ployees International Union, AFL-CIO, Petitioner. Case 21-RC-13855 March 21, 1975 DECISION ON REVIEW BY MEMBERS FANNING, JENKINS, KENNEDY, AND PENELLO On November 1, 1974, the Regional Director for Region 21 issued a Decision and Direction of Election in the above-entitled proceeding wherein he directed an election in the Petitioner's requested unit, excluding therefrom, inter alia, registry employees employed by the Employer in its hospital operations. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Employer filed a timely request for re- view of the Regional Director's Decision on the grounds, inter alia, that in concluding that registry employees should be excluded from the unit, he made findings of fact which are clearly erroneous and depart from Board precedent. By telegraphic order dated December 4, 1974, the request for review was granted regarding the exclusion of certain registry employees, and it was denied in all other respects. The election was stayed pending deci- sion on review. The Board has considered the entire record in this case with respect to the issues under review and hereby affirms the Regional Director's Decision and Direction of Election.' The appropriate unit is as described below? All employees employed by the Employer at its hospital located at 16453 South Colorado Boule- vard, Paramount, California; excluding profes- sional employees, registered nurses, medical doc- tors, registry employees, employees of contract employers, guards, and supervisors as defined in the Act. Accordingly, we shall remand the case to the Re- gional Director for Region 21 for the purpose of con- I The Regional Director's pertinent findings are excerpted from his Deci- sion and Direction of Election and attached as an appendix hereto We granted review herein partly in view of the Board's scheduled oral argument in a number of cases raising unit issues in nonprofit hospitals. We are satisfied, upon review of the record, that the Regional Director appropri- ately concluded that the registry employees, like those of contract employ- ers, have a sufficiently distinct community of interest apart from the em- ployees in the requested unit to justify their exclusion from the unit 2 The unit description set forth by the Regional Director in his Decision is modified to make clear the specific exclusions from the unit, particularly the fact that the housekeeping employees, nonprofessional pharmacy em- ployees, unlicensed clinical laboratory employees, and laboratory clericals are employees of contract employers. 31 ducting an election pursuant to his Decision and Direc- tion of Election in the appropriate unit, as described above, except that the period for determining eligibility shall be the payroll period immediately preceding the date of this Decision on Review.3 3 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to,vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc., 156 NLRB 1236 (1966), N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is hereby directed that a revised election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 21 within 7 days of the date of this Decision on Review. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordi- nary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed APPENDIX The Employer is a California corporation engaged in the operation of an acute hospital located at 16453 South Colorado Boulevard, Paramount, California. Petitioner seeks to represent all employees of the Employer employed at the hospital, excluding all professional employees, registered nurses, medical doc- tors, guards, and supervisors, as defined in the Act. The Employer, in addition, would include in the unit, all registry employees, nonprofessional pharmacy em- ployees, housekeeping employees, and unlicensed clini- cal laboratory technicians, and laboratory employees, all of whom the Employer claims are jointly employed by it. Petitioner, on the other hand, would exclude such employees, inasmuch as it contends that they are not jointly employed by the Employer. There is no history of collective-bargaining for any of the employees in- volved in this proceeding. The registry employees in question are Licensed Vo- cational Nurses (LVN's) and nurses aides whom the Employer claims are employed on a recurrent basis, and who are paid directly by the Employer. (There are other registry employees who are paid by the registry, rather than the hospital, but whom the Employer does not seek to include in the unit.) Registry employees, who are often employed by more than one registry, are sent by any of the several independent registries with which the Employer does business, according to the needs of the latter, on a temporary basis. These em- ployees receive per diem compensation negotiated by the Employer and the registry , which, on an hourly basis, works out to a rate higher than regular employees at the hospital in the same classifications. The purpose of the higher rates is to compensate the registry em- ployees for their lack of benefits, which the regular employees receive from the hospital. Although the registry employees wear ID badges like the regular employees, share the same breaks, lunch- 217 NLRB No. 22 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, 'cafeteria, shift schedules, and employee rules, wear similar uniforms, and are subject to similar nurs- ing supervision and disciplinary action as the regular employees, the registry employees are hired by their respective registries, where they submit job applica- tions. Each registry employee who is paid directly by the Employer has a contract with one or more registries to which a fee is paid for job assignments. Registry employees are not subject to job evaluations, either before assignment or thereafter. If the hospital is satis- fied with her work, it may request her for future assign- ments. The assignments are for limited periods of time to fulfill a temporary need of the hospital. Registry employees do not submit job applications to the Employer at the start of an assignment, but merely show their licenses. They punch in and out of the hospi- tal timeclock, like the regular employees, but must, in addition, sign in and out on a separate sheet for registry employees. Further, registry employees are coded dif- ferently on the Employer's payroll records. There is no hospital policy for advancement or registry employees to supervisory positions. On occasion, registry em- ployees attend educational programs provided by the Employer, on such matters as fire and safety, but the record does not substantiate the Employer's contention that they receive discounts on medical services at the hospital. It does not appear that they have a grievance procedure with the Employer, although their registries provide such. The other employees in the dispute at the hospital are the housekeeping employees employed by Univer- sal Hospital Care, nonprofessional pharmacy em- ployees employed by Sigma Medical Enterprises, and unlicensed laboratory technicians and laboratory cleri- cals employed by Medical Lab Management. Early in the hearing the Employer had also sought to include nonprofessional physical therapy employees employed by Century Plaza Therapy; however, the Employer subsequently withdrew that contention. None of the other employers appeared at the hearing. The aforementioned employers, hereafter called con- tract employers, have similar contractual relationships with the Employer to provide employees on a steady, full-time basis, in the aforementioned classifications, depending upon the needs of the Employer. The employees are interviewed and hired by their respective contract employers from whom they also receive their paychecks. The employees are not screened further by the Employer prior to hire. They enjoy benefits through their respective contract em- ployers as well as workmen's compensation. Each con- tract employer has a supervisor for its employees. Such supervisors are department heads at the hospital, but are paid by their respective contract employers. Such supervisors attend hospital committee meetings and de- termine who is to work overtime in their departments. The employees in question do not submit employment applications to the Employer, although the latter re- tains the right to terminate such employees or recom- mend such to their employers, during the 90-day pro- bationary period for new employees. The employees wear ID badges like the regular employees, but the Employer does not maintain a separate file on each of the employees in question. The Employer merely keeps a folder on each contract employer showing a roster of employees during a given period from that company and to whom ID badges have been issued by the Em- ployer. The contract employers' employees punch a time- clock like the regular employees; attend in-service pro- grams regarding such matters as fire, safety, and disas- ter preparedness with the regular employees; are subject to hospital discipline; use the same dining room as regular employees for breaks and meals; are entitled to discounts for services at the hospital; and are subject to the same employee rules as the regular employees. The work of the unlicensed laboratory technicians is screened by the Employer for accuracy. There are joint meetings between the Employer and contract employ- ers' supervisors to discuss working conditions, schedules, -and adequacy of staffing. Neither at these meetings nor at any other times do they discuss the wages, hours, or benefits of the employees in question. There is no evidence that the Employer employs any employees in the same classifications as the employees in question. As previously mentioned, the Employer contends that a joint-employer relationship exists between it and the registries, as well as it and the contract employers, and that, therefore, the employees of said registries and contract employers must be included in the hospital- wide unit. For purposes of my decision here, I do not find it necessary to determine whether the record substan- tially supports a finding that a joint-employer relation- ship exists between the Employer and the various regis- tries and contract employers. For even if such a relationship were found, it does not necessarily follow that a hospitalwide unit including the employees of the various registries and contract employers is the only appropriate unit. Rather, the question is whether the unit sought by Petitioner, which excludes the disputed employees, may also be appropriate within the meaning of the Act. The Western and Southern Life Insurance Company, 163 NLRB 138; Bargain Town U.S.A. of Puerto Rico, Inc., 162 NLRB 1145, 1147. While there are a number of factors which indicate that all of the employees at the hospital share a com- mon community of interest, there are other significant factors which establish that the employees of the regis- PARAMOUNT GENERAL HOSPITAL, INC. tries and contract employers also have a separate and distinct community of interest from that of the other employees. Thus, registry employees are temporary employees who work as needed, are paid on a per diem basis, and receive no fringe benefits. They often work for more than one employer and are free to accept or reject referrals if they so desire. They are hired by their respective registry or registries and are not evaluated by the Employer when reporting to work or thereafter. And, unlike regular employees, each registered em- ployee pays a registry fee for each job referral and is required to sign in and out at the hospital on a registry employee sheet. In the case of the employees of the contract employ- ers, the record discloses that those employees, unlike the Employer's regular employees, are paid and super- vised by their contract employers, receive benefits and workmen's compensation through them, and are inter- viewed and hired by them at which time new employees are informed of their wages, hours, and working condi- tions. The employees do not submit employment ap- plications to the Employer, they are not further 33 screened by the Employer, and the Employer does not maintain separate personnel records for them. And while the Employer and the contract employers jointly determine staffing patterns and general fees for the services, the contract employers do not consult with the Employer regarding specific, wages, hours, or benefits of the employees in question. Under all of the circumstances, including the ab- sence of a bargaining history for any of the employees and of a request by a union for the inclusion of the registry. employees or the contract employers' em- ployees, cf. Jewel Tea Co. Inc., etc., 162 NLRB 508, 510, I find that the employment interest of those em- ployeds are sufficiently different from those of the em- ployees sought by Petitioner to warrant their exclusion from the unit. Bargain Town U.S.A. of Puerto Rico, Inc., supra. Accord: Zayre Corp., 170 NLRB 1751, 1752. Accordingly, I shall direct an election in the unit sought by Petitioner, which I find to be an appropriate unit. There are approximately 300 employees in the unit.