Mercy Hospitals of Sacramento, Inc.

MERCY HOSPITALS OF SACRAMENTO, INC. Mercy Hospitals of Sacramento, Inc. and Local 250, Hospital & Institutional Workers Union, Service Employees International Union, AFL-CIO, Petitioner.' Cases 20-RC-12299, 20-RC-12300, 20-RC-12301, and 20-RC-12302 May 5, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a con- solidated hearing was held before Hearing Officer Earl D. Brand of the National Labor Relations Board. On December 10, 1974, the Regional Director for Region 20 issued a Decision and Direction of Elections in which he found appropriate three separate bargaining units consisting of professional employees, service and maintenance employees, and office clerical employees, respectively. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, requests for review of the Regional Director's Decision and Direc- tion of Elections were filed by the Petitioner jointly with Intervenor Stationary Engineers, Local 39, Inter- national Union of Operating Engineers, AFL-CIO (hereinafter referred to as Local 39), by Intervenor California Association for Medical Technology, Engi- neers and Scientists of California, MEBA, A]FL-CIO (hereinafter referred to as CAMLT), and by Intervenor California Nurses' Association (hereinafter referred to as CNA), contending, inter alia, that the Regional Director's findings as to the appropriate units raiised substantial questions of law and policy and were based on erroneous factual findings and that there are compelling reasons for establishment of Board rules and policies in this area. In their request for review, Petitioner and Local 39 requested oral argument as to the issues raised on review. Thereafter, the Employer filed a brief in opposition to the requests for review. On January 16, 1975, the Board, having determined that this and a number of other cases in the health care industry presented issues of importance in the adminis- tration of the National Labor Relations Act, as amended, scheduled oral argument in several of the cases, including this one, as well as oral argument on the general question of the composition of appropriate bargaining units in the health care industry.' Oral ar- I The names of the Employer and the Petitioner appear as amended at the hearing 2 California Association for Medical Technology, Engineers and Scien- tists of California, MEBA, AFL-CIO; Stationary Engineers, Local 39, Inter- national Union of Operating Engineers, AFL-CIO; and California Nurses' Association were granted intervention with respect to various of the peti- tion s, on the basis of sufficient showings of interest. 765 guments were heard on January 27, 1975. Briefs amici curiae were filed by interested parties and have been duly considered by the Board. By telegraphic order dated February 4, 1975, the Board granted the Petitioner's and the Intervenors' re- quests for review and stayed the elections pending deci- sion on review. The Board has considered the entire record in this case, with respect to the issues under review, including the oral arguments and the amicibriefs, and makes the following findings: The Employer operates a long-term geriatric care facility, Mercy Convalescent Hospital, located in Sac- ramento, California, adjacent to its two acute care facilities, Mercy General Hospital and Mercy Chil- dren's Hospital. The parties agreed that Mercy Con- valescent Hospital and Mercy Children's Hospital should be considered as part of the operations of Mercy General and the three facilities are hereinafter referred to as Mercy General. The Employer also operates a third acute care facility, Mercy San Juan Hospital (hereinafter referred to as Mercy San Juan), at Carmi- chael, California, approximately 13 miles from Sac- ramento. The petitions in the instant case sought a number of separate units of employees at Mercy General, and Mercy San Juan. Contrary to the positions of the Peti- tioner and the Intervenors, however, the Regional Di- rector found, and we agree, that Mercy General and Mercy San Juan constitute a single employer within the meaning of the Act and that the appropriate bargaining units should consist of employees at both facilities. The record establishes considerable functional and operational integration between Mercy General and Mercy San Juan. Thus, Mercy General and Mercy San Juan constitute a single corporation and a single gov- erning board controls the overall operations of both facilities. Although each facility is separately adminis- tered and maintains a separate personnel department, employees at both facilities are subject to uniform per- sonnel and labor relations policies, fill out identical job applications and personnel forms, and share common job classifications, wage scales, and benefit programs. In addition, job vacancies are posted in both facilities and preference is given to current employees who may transfer or be promoted to positions in either facility without loss of seniority. The record also establishes that Mercy General and Mercy San Juan share such common internal services as laundry, receiving, purchasing, data processing, bill- ing, and accounting. These services are administered through a single Shared Services Department and em- ployees in each of these service departments are com- monly supervised and frequently and regularly inter- 3 Member Kennedy dissented from the grant of oral argument 217 NLRB No. 131 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change between facilities as needed. In addition, one bakery and one printshop located at Mercy General serve both facilities. Although there are some differences in the medical services offered by Mercy General and Mercy San Juan which require somewhat different skills and supervi- sion, the record does establish that Mercy General and Mercy San Juan regularly interchange supplies, equip- ment, and support personnel in connection with the operation of surgical and inhalation therapy services. Both facilities also utilize the same outside contractors for-physician services in the x-ray and nuclear medicine departments and in the emergency rooms. In view of the above factors which establish func- tional integration between the operations of Mercy General and Mercy San Juan, common overall ad- ministration, common personnel and labor relations policies, common wages, benefits, and job classifica- tions shared by all employees, common supervision in some areas, and substantial employee transfer and inte- gration between facilities, we find that the appropriate bargaining units should encompass employees at all of the Employer's facilities.' The Appropriate Units 1. Professional employees a. Registered nurses The Petitioner petitioned to represent all registered nurses employed at Mercy General. Intervenor CNA sought to represent a single unit of all registered nurses employed at both Mercy General and Mercy San Juan. The Regional Director, in agreement with the Em- ployer's position, found that the appropriate profes- sional bargaining unit must consist of all professional employees, including registered nurses,' employed at both of the Employer's facilities. In the circumstances of This case, we reach a different conclusion. To be sure, the principal thrust of the legislative history of the health care amendments to the Act ad- monishes the Board to avoid undue proliferation of bargaining units in the health care industry. Thus, the Senate Committee Report states: - Due consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry. In this connection, the 4 Although, as noted previously, the petitioned-for units consisted of employees at one or the other of the Employer's facilities, we note that, at the oral argument, counsel for the Petitioner and the Intervenors expressed the view that there was sufficient evidence herein to support the Regional Director's findings concerning the scope of the bargaining units and that, for the purposes of the instant case, they would not seek review of the Regional Director's finding in this respect. 5 The parties stipulated that registered nurses are professional employees within the meaning of Sec 2(12) of the Act Committee notes with approval the recent Board decisions in Four Seasons Nursing Center, 208 NLRB No. 50 . . . (1974), and Woodland Park .Hospital, 205 NLRB No. 144. . . (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB 1232 ... (1973).' 1 By our reference to Extendicare, we do not necessarily approve all of the holdings of that decision 6 Senator Taft characterized this statement as designed "to stress the necessity to the Board to reduce and limit the number of bargaining units in a health care institution."' Senator Taft further directed the Board to expend "every effort .. . to prevent a proliferation of bargaining units in the health care field. . . ."' Thus, our consideration of all issues concerning the composition of appropriate bargaining units in the health care industry must necessarily take place against this background of avoidance of undue proliferation, particularly at the commencement of our establishment of units in hospitals, when our experience with this industry and its employment relations is in its infancy. However, despite this clear statement by the Con- gress, we are constrained to view the legislative history as not precluding the Board from finding appropriate separate bargaining units for registered nurses when they are sought to be represented on that basis. We note, first, that portions of the legislative history indi- cate that Congress, in the final analysis, left the matter of the determination of appropriate units to the Board. Congress rejected Senator Taft's specific suggestion that all professional employees should by law be in- cluded in a single bargaining unit.' We also view Senator Williams' statement on behalf of the Senate Conferees as indicative of Congress' willingness to al- low the Board some latitude in determining the compo- sition of appropriate units in the health care industry based on the weighing of such traditional standards as "interests between employees in different job classifica- tions." Senator Williams stated: .. . the National Labor Relations Board has shown good judgment in establishing appropriate units for the purposes of collective bargaining, particularly in wrestling with units in newly cov- ered industries. While the Board has, as a rule, tended to avoid an unnecessary proliferation of collective bargaining units, sometimes circum- 6 S. Rept. 93-766, 93d Cong., 2d sess 5 (1974), see also H Rept 93-1051, 93d Cong, 2d sess. 7 (1974). - 7 120 Cong Rec S 6940 (1974) 8 120 Cong. Rec S 7311 (1974) 9 Senator Taft's bill (S. 2292, 93d Cong., 1st sess. (1973)) provided for no more than four appropriate bargaining units in the health care industry. (1) all professional employees; (2) all technical employees, (3) all clerical em- ployees, and (4) all service and maintenance employees. MERCY HOSPITALS OFSACRAMENTO, INC. stances require that there be a number of bargain- ing units among nonsupervisory employees, particu- larly where there is such a history in the area or a notable disparity of-interests between employees in different job classifications. While the committee clearly intends that the Board give due consideration to its admonition to avoid an undue proliferation of units in the health care industry, it did not within this framework in- tend to preclude the Board acting in the public interest from exercising its specialized experience and expert knowledge in determining appropriate bargaining units. (NLRB v. Delaware-New Jersey Ferry Co., 128 F.2d 130 (3d Cir. 1942)). [Emphasis supplied.]" Upon careful consideration of all of the arguments made before us in this and other cases on which we heard oral argument, as well as the positions of the amiciwho participated in this and the related proceed- ings, we have concluded that registered nurses possess, among themselves, interests evidencing a greater de- gree of separateness than those possessed by most other professional employees in the health care industry. These distinct interests derive not only from the pecul- iar role and responsibilities of registered nurses in the health care industry, but also from an impressive his- tory of exclusive representation and collective bargain- ing. The primary and indeed overriding responsibility of registered nurses is to maintain the best possible patient care. Pursuant to this responsibility, registered nurses, unlike most other professional emp]oyees, are required to be on duty 24 hours a day, 7 days a week, 365 days a year. Their duties and responsibilities with respect to patient care cannot by law and licensure be delegated to any other employees, including other professionals, and must therefore be performed exclusively by regis- tered nurses. Apparently in recognition of this unique degree of professional responsibility, the Joint Commit- tee; on Accreditation of Hospitals , as well as the laws of several States, requires all member hospitals to main- tain a separately administered department of nursing, under the direction of a director of nursing, for the purpose of establishing and administering all depart- mental regulations and qualifications. Thus, complete authority over registered nurses in hospitals is central- ized in the director of nursing and all hiring, firing, and regulating of working conditions, such as hours, shifts, and job descriptions, take place within the confines of the department of nursing. We also note that all registered nurses, in addition to graduating from accredited nursing schools, are re- 10 120 Cong Rec S 12104 (1974). 767 quired, as a precondition of employment, to take and pass uniform national licensing examinations and to acquire and maintain state licenses to practice. Perhaps of the greatest significance in establishing the separate interests of registered nurses is their singu- lar history of separate representation and collective bargaining often as the result of voluntary recognition. The parties and amicus participants have called the Board's attention to numerous collective-bargaining agreements which have been negotiated in behalf of registered nurses by organizations which possess spe- cialized knowledge and expertise in the areas of signifi- cance to registered nurses. The Board itself has, in the past, recognized the separate interests of registered nurses and has routinely established separate nurse units for collective-bargaining purposes.ll In Con- solidated Vultee Aircraft Corporation, for example, 108 NLRB at 592, it was noted that: The Board has consistently recognized that nurses constitute a well-defined professional group whose training, skill, and duties differ from those of other employees, and that a unit confined to nurses is appropriate for the purposes of collective bargain- ing. We are unable to ignore this tradition of separate and exclusive representation and collective bargaining. Separate bargaining for other health care professionals, to the extent it has been shown to exist, appears to have been on a scale of considerably smaller proportions. Therefore, mindful of the congressional directions concerning the number of appropriate bargaining units in the health care industry, and based on the above factors which compellingly establish the singularity of the interests of registered nurses, we are moved to ac- cord continued recognition to those separate interests. Accordingly, for the aforementioned reasons, we find that registered nurses, if they are so sought and they so desire, are entitled to be represented for the purposes of collective bargaining in a separate bargaining unit. 12 11 See, e g., Hudson Motor Car Company, 45 NLRB 55 (1942); Con- solidated Vultee Aircraft Corporation, 56 NLRB 1785 (1944), 59 NLRB 1276 (1944), 108 NLRB 591 (1954); American Steel & Wire Company, 58 NLRB 253 (1944), Consolidated Steel Corporation, 61 NLRB 97 (1945); Standard 0¢l Company (Indiana), 80 NLRB 1022 (1948); Diversified Health Services, Inc d/b/a Convalescent Center of Honolulu, 180 NLRB 461 (1969) Accord: Doctors'Hospital of Modesto, Inc., 193 NLRB 833 (1971), enfd. 489 F 2d 772 (C.A. 9, 1973) 12 The Board has previously recognized that certain other specially skilled professional employees may constitute a separate appropriate bargaining unit from other professional employees based on a history of separate professional organization and separate administration Thus, in University of San Francisco, 207 NLRB 12 (1973), the Board directed a separate election among law school faculty, despite the fact that all university faculty were professional employees, because of the unique "accreditation and professional standards established by the American Bar Association and the Association of American Law Schools, as well as by various state judiciar- ies" and because the law school operated under separate administration Continued 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of the hearing, the Employer employed seven nurse permittees. Nurse permittees are nurses who have graduated from accredited nursing schools and have either taken or are about to take the registra- tion examination required by the State to become li- censed as registered nurses. Until such time as they receive notification that they have passed the examina- tion, the nurse permittees work under state permits performing essentially the same functions and duties as the registered nurses, under supervision of a registered nurse, except for the handling of narcotics. The average length of time before a nurse permittee becomes a regis- tered nurse is less than 3 months. In agreement with the Regional Director, we find that nurse permittees, by virtue of the nature of their training and working condi- tions, are professional employees within the meaning of the Act, and we shall include them in the nurses' unit. 13 . The Employer also employed at the time of the hear- ing 16 charge nurses. However, the record does not clearly establish the extent of any supervisory powers, they may possess. The record reveals that charge nurses may be responsible for directing a work force which varies in size from two to eight nursing employees, including registered nurses, licensed vocational nurses, and nurses assistants. While the record establishes that charge nurses make up work schedules and schedule vacations and time off, the charge nurses, unlike head nurses whom the Regional Director found to be supervisors," do not have authority to resolve sche- duling conflicts. Further, unlike the head nurses, it is not clear whether the charge nurses' responsibility ex- tends beyond the immediate shifts on which they work, whether they can effectively recommend hiring of em- ployees, or whether the employee evaluations prepared by them are used in determining eligibility for salary increases. Therefore, as we are unable, on the record before us, to determine the supervisory status of charge nurses, we shall, as did the Regional Director, permit them to vote subject to challenge. There are approximately 27 registered nurses em- ployed by the Employer who do not work in the De- partment of Nursing. Instead, they are permanently assigned to other departments in the hospital including laboratory, radiology, business office, educational training, cardiopulmonary, internal medicine, and in- from other university faculty groups. See also Fordham University, 193 NLRB 134 (1971); The Catholic University of America, 205 NLRB 130 (1973). 13 Local 250 contested the professional status of nurse permittees at the hearing, but did not expressly raise the issue in its request for review 14 In the absence of any request for review of the Regional-Director's, findings with respect to head nurses, we find, in agreement with the Re- gional Director, that head nurses are supervisors within the meaning of the Act We note also that the parties stipulated that the director of nursing, the assistant director of nursing, nursing unit supervisor, and RN supervisors are also supervisors within the meaning of the Act and are excluded from the unit of professional employees. travenous therapy. Unlike the registered nurses work- ing in the Department of Nursing who report to the director of nursing, these 27 registered nurses report to and are-supervised by supervisors in the respective de- partments in which they work. The record reveals that, in some instances, they perform the same work under the same conditions as other employees in their respec- tive departments and in some instances their work is of a more specialized nature. We find that the record evidence is insufficient upon which to ' base a clear determination that these 27 registered nurses share a community of interest with registered nurses in the Department of Nursing and we shall therefore allow them to vote subject to challenge. Accordingly, for the aforementioned reasons, we find that a unit consisting of all registered nurses and nurse permittees in the Department of Nursing is ap- propriate for the purposes of collective bargaining and we shall direct an election therein. b. Other professional employeesl5 As stated previously, any consideration of issues con- cerning the composition of appropriate bargaining units in the health care industry must take into account the expression in the legislative history that the Board avoid undue proliferation of the number of bargaining units. Thus, although Congress recognized that "the Board should be permitted some flexibility in unit determination cases," the Board was exhorted to exer- cise "great caution . . . in reviewing unit cases in this area."" In addition to the previously discussed legis- lative history, which is also relevant to the instant dis- cussion, we note the following statement by Senator Taft: The issue of proliferation of bargaining units in health care institutions has also greatly concerned me during consideration of legislation in this area. Hospitals and other types of health care institu- tions are particularly vulnerable to a multiplicity of bargaining units due to the diversified nature of the medical services provided patients. If each professional interest and job classification is permit- ted to form a separate bargaining unit, numerous administrative and labor relations problems become involved in the delivery of health care. [Emphasis supplied.]" 15 The parties stipulated that pharmacists and medical laboratory tech- nologists are professional employees within the meaning of Sec . 2(12) of the Act In addition, in the absence of any request for review of the Regional Director's findings thereto, we find that physical therapists, dieticians, and radioisotope technologists are professional employees within the meaning of the Act. 16 120 Cong Rec. S 6940 (1974). 17 Ibid MERCY HOSPITALS OF SACRAMENTO, INC. 769 We do not minimize the differences, both functional and educational, which exist among the various groups of professional employees employed by the Employer. However, based on the record before us, to grant a separate unit to all such professional groups and job classifications would, as pointed out in the legislative history, result in what might be deemed an undue pro- liferation of bargaining units. Thus, although there is a diversity of skills between each of these professional groups, their skills, interests, and working conditions are, in many respects, no more diverse than those of employees in a production and maintenance unit in the industrial sphere or in the overall service and mainte- nance unit in the health care industry. Despite these differences, we note that all of the employees here un- der consideration possess a commonality of profession- alism which sets them apart from other employees in the Employer's operations. In addition, these individual professional groups have failed to demonstrate the kind or degree of sepa- rate representation for collective-bargaining purposes which was so important to our finding that registered nurses may constitute a separate professional bargain- ing unit. Thus, despite the number of professional as- sociations, of which we learned from various parties and amicus participants in the oral arguments, none has demonstrated the development of such a tradition of separate collective bargaining as has been the case with registered nurses. We therefore conclude that a separate unit of medi- cal laboratory technologists is not appropriate. Plainly, the record does not establish a compelling tradition of separate representation or separate collective-bargain- ing history for medical laboratory technologists. The record does establish, however, that medical laboratory technologists share an identifiable community of inter- est with other professional employees. Thus, like other professionals, medical laboratory technologists are re- quired to hold a baccalaureate degree in their respective specialty supplemented by additional training and/or licensure, perform at least some of their regular work on the nursing floors and in the patient rooms, are directly involved in the treatment of patients, and share common wage scales, benefit programs, and working conditions. Accordingly, for the aforementioned reasons and based on the record in the instant case, we conclude that a unit consisting of all professional employees, excluding registered nurses,18 would be appropriate 11 We do not consider and we do not pass on the question whether, in the absence of a separate petition seeking registered nurses only, we would direct an election in an overall professional unit, including registered nurses, if such a unit were sought, or whether, if we did, we would allow the nurses a voice as to whether they wished to be included in a unit with other professionals. Compare Sonotone Corporation, 90 NLRB 1236 (1950) By for the purposes of collective bargaining. However, inasmuch as no labor organization has indicated that it desired to represent employees in such an all-profes- sional unit should a separate unit of nurses be found appropriate, we shall not direct an election in the afore- mentioned unit. 2. Service and maintenance employees The Petitioner originally petitioned to represent a unit consisting of all of the Employer's service em- ployees and Local 39 originally sought to represent only those employees in the Employer's maintenance and engineering department. However, on January 2, 1975, the Petitioner and Local 39 filed with the Re- gional Director a joint request to appear on the ballot as a joint petitioner in an overall service and mainte- nance unit consisting of all of the aforementioned em- ployees and, if successful in an election, to be certified as a joint petitioner. On January 3, 1975, the Regional Director issued a notice to show cause why the joint request should not be granted and, on January 13, the Employer filed a statement in opposition. Thereafter, the Regional Director, on February 4, 1975, trans- ferred the joint request to the Board for decision. We hereby grant the Petitioner's and Local 39's joint request to appear on the ballot as a joint petitioner with respect to a bargaining unit consisting of all service and maintenance employees employed by the Employer. In the absence of any request for review of the Regional Director's decision with respect thereto,19 we find that all service and maintenance employees employed by the Employer comprise a unit appropriate for collective bargaining within the meaning of the Act and we shall direct an election therein.20 3. Clerical employees The Petitioner petitioned for a unit of all office cleri- cal employees employed at Mercy San Juan. The Re- the above language, we do not mean to suggest, as intimated by our concur- ring colleague, that if only an all professional unit is sought, nurses may possibly be given a separate vote entitling them to remain unrepresented Although the Petitioner expressed a willingness to represent employees in such an overall unit and not to contest the Regional Director's findings thereon, we do not construe that expression of willingness to have been the Petitioner's primary position. We will, of course, entertain anew petition for a unit encompassing all professional employees, excluding registered nurses, should one be filed, based on a proper showing of interest We do not here reach the question whether we would find appropriate a unit limited to physicians , residents, or interns. Cf New York University Medical Center, A Division of New York University, 217 NLRB 522 (1975) 19 The Petitioner and Local 39 agreed to withdraw their requests for review of that portion of the Regional Director's decision finding appropn- ate an overall service and maintenance unit in the event that their request to be a joint petitioner were granted 20 See Mount Any Foundation d/b/a Mount Airy Psychiatric Center, 217 NLRB 802 (1975) But see St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, ,Inc., 217 NLRB 787 (1975) 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gional Director directed an election in a unit consisting of all office clerical employees employed at all of the Employer's facilities. While, as indicated heretofore, we agree with the Regional Director's determination with respect to the scope of the unit, we do not, for the reasons hereinafter expressed, agree with his findings concerning the composition of that unit. Upon due consideration, we have decided that in the health care field, as in the industrial sphere, we shall continue to recognize a distinction between business office clerical employees, who perform mainly busi- ness-type functions, and other types of clerical em- ployees whose work is more closely related to the func- tion performed by personnel in the service and maintenance unit and who have, in the past, been tradi- tionally "excluded by the Board from bargaining units of business office clerical employees. Thus, the Board ,has consistently recognized that the interests of busi- ness office clerical employees differ markedly from the interests of clerical employees who work in the produc- tion areas and has declined to establish bargaining units composed of the two clerical groups.21 . Therefore, in the health care industry, we shall nor- mally find as separately appropriate those units of of- fice clerical employees which consist of business office clerical employees.22 In addition, as the interests of other types of clerical employees are more closely related to the functions served by, employees in the service and maintenance unit, we shall include such clerical employees in the service and maintenance unit. Our finding herein is consistent with the congres- sional direction against the undue proliferation of bar- gaining units in the health care industry. Thus, the legislative history of the health care amendments indi- cates that Congress recognized the possible appropri- ateness of separate bargaining units among employees who have a history of separate representation,23 as do business office clerical employees.24 We also note that the inclusion of other types of clerical employees in the service and maintenance unit herein found appropriate avoids unnecessary fragmentation of employees who share common interests and is therefore in keeping with the congressional mandate. Accordingly, for the aforementioned reasons, we find that a unit consisting of all business office clerical employees, excluding all other employees, is appropri- 21 General Electric Company (River Works), 107 NLRB 70 (1953) These distinct interests are rooted in community of interest considerations, includ- ing the performance of different functions for different purposes in separate work areas under separate supervision See, e g, Minneapolis-Moline Com- pany, 85 NLRB 597, 598 (1949) 22 To the extent that it is inconsistent with the decision in the instant case, we hereby overrule the decision in National Medical Hospitals, Inc., of San Diego, d/b/a Chico Community Memorial Hospital, 215 NLRB No 155 (1974), which issued prior to the direction of oral arguments concerning issues of unit composition in the health care industry 23 See discussion, supra - 24 See cases cited in fn 21, supra. ate for the purposes -of collective bargaining and we shall direct an election therein.25 4. Supplemental employees The record establishes that the Employer employs approximately 200 supplemental employees, most of whom are regular part-time employees working less than 40 hours per 2-week pay period or on a temporary or an "on-call" basis. Supplemental employees gener- ally serve as "float personnel" working where needed to supplement the work force in many service and maintenance departments. Need for these employees necessarily fluctuates with the varying patient census in the Employer's facilities. In many instances, new em- ployees are hired as supplemental employees and subse- quently become part-time and then full-time em- ployees. The parties disagreed as to whether or not the sup- plemental employees should be included in the bargain- ing unit. While the Employer would include all supple- mental employees, the Petitioner and Local 39 would include only those- supplemental employees who are obligated, to perform weekend rotation work and who are eligible to participate in the Employer's benefit pro- grams or, alternatively, would allow the Board to estab- lish an arbitrary standard of voter eligibility based on the number of hours worked. However, in the absence of any agreed-upon equitable eligibility formula and inasmuch as the record is silent as to the length, regularity, and currency of the employment of supple- mental employees, we shall merely permit, as did the Regional Director, all supplemental employees who work on a regular part-time basis to vote in the election. Conclusion Accordingly, upon the entire record and for the aforementioned reasons, we shall direct elections among employees in the following units which we have found to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: UNIT A All registered nurses and nurse permittees em- ployed at Mercy General Hospital, Mercy Con- valescent Hospital, and Mercy Children's Hospi- tal, Sacramento, California, and at Mercy San Juan Hospital, Carmichael, California; excluding all other employees, guards, -and supervisors as defined by the Act. 25 The parties stipulated to the classifications of employees to be included in the office clerical unit. See the unit description , Voting Group C MERCY HOSPITALS OF SACRAMENTO, INC. UNIT B All full-time and regular part-time service and maintenance employees , including licensed voca- tional nurses, graduate vocational nurses, nurse assistants, ward clerks, surgical technicians, ACC clerks, x-ray technicians, cardiopulmonary techni- cians, respiratory therapy technicians, EKG tech- nicians, tissue technicians, EEG technicians, phar- macy technicians, pharmacy clerks, computer programmers, printing assistants , technicians to receiving clerk, housekeeping technicians, food service workers, laundry workers, department aides, all employees of the maintenance and engi- neering department, and all clerical employees other than business office clerical employees, em- ployed at Mercy General Hospital , Mercy Con- valescent Hospital , and Mercy Children's Hospi- tal, Sacramento, California, and at Mercy San Juan Hospital, Carmichael, California; excluding all other employees, guards, and supervisors as defined by the Act. UNIT C All business office clerical employees , including clerks 1, 2, and 3, keypunch operators, keypunch operator trainees, computer operator l's, senior transcribers, and PBX operators, employed at Mercy General Hospital, Mercy Convalescent Hospital, and Mercy Children's Hospital, Sac- ramento, California, and at Mercy San Juan Hos- pital, Carmichael, California; excluding all other employees, confidential employees, guards, and supervisors as defined by the Act.26 [Direction of Election omitted from publication.]" MEMBER FANNING, concurring: This hospital complex is operated at two locations, approximately 13 miles apart . Originally the Petitioner 26 Contrary to the position ascribed to us by Member Kennedy, we are not ignoring the normal showing of interest requirement Rather, since we are enlarging the size of the bargaining units with respect to registered nurses and business office clerical employees, we shall not permit the Re- gional Director to conduct elections in such units unless and until the labor organizations involved submit timely showings of interest which warrant the conduct of an election in such enlarged units. Although we have been administratively advised that the Regional Director, at an earlier date, re- quest ed the labor organizations involved to submit new showings of interest based on the unit determinations in his decision, we note that those unit determinations were tentative and, of course, review was thereafter sought on various grounds In the light of these facts, and the further fact that no party could at that time, with any degree of certainty, know what unit or units in this newly covered industry would be found appropriate, we are unwilling to dismiss these petitions on grounds that, shortly after the Re- gional Director's decision, some showing of interest requirements may not have been met We believe it appropriate to direct the Regional Director to 771 sought units at Mercy General, Sacramento, and sepa- rately at Mercy San Juan (also a general hospital) at Carmichael. At the hearing there were several interven- tions, one by CNA for all registered nurses of the Em- ployer hospitals; presumably this included the Mercy Convalescent and the Mercy Children's Hospital oper- ated at Sacramento. Noting that the parties agreed that the Convalescent and the Children's Hospitals should be considered part of Mercy General, the Regional Director found, on the record made, that the four facili- ties constitute a single employerunder the Act, and that appropriate units should encompass employees at all four facilities. In the circumstances of this case, with the Employer urging a four-facilities unit and the Peti- tioner and Intervenors agreeing at oral argument to a unit of this scope, I agree with this finding. I would point out, however, that a single employer finding does not necessarily carry with it a finding that units em- ployerwide in scope are also appropriate. This will de- pend, in cases where the parties do not agree, on what the facts show as to the autonomy of a single location hospital facility. I see nothing in the legislative history concerning nonprofit hospitals to indicate that single location units, such as are presumptively appropriate in industry generally, were meant to be discouraged.28 I am in complete agreement with giving registered nurses a separate unit when they are sought to be repre- sented on that basis.29 They are a distinct group among the professional employees in the health care industry, and have a marked community of interest in bargaining collectively on that basis. Nursing care of patients is a round-the-clock, every day responsibility. It is perhaps because of this that RN's have a long history of separate representation for collective bargaining-often as the result of voluntary recognition-and many units of RN's have been estab- lished through the processes of this Board. If, however, they are not sought separately but only as part of an all professional unit, or possibly a residual professional unit, I would include them in such units without a separate vote.3o Consistent with the professional capacities and com- mon interest of all RN's, I would include in the unit not only the RN's in the Employer's department of nurs- ascertain the parties' showing of interest at this time with respect to the units here found appropriate 27 [Excelsior fn. omitted from publication.] 28 I note that now pending before this Board is Presbyterian Medical Center, 218 NLRB No. 192 (1975), where the employer is urging that another hospital operated by it 13 miles away should not be included in the same unit. 29 I would include the nurse permittees , as my colleagues do 30 This is somewhat like the Board's inclusion of skilled crafts in produc- tion and maintenance units if not separately sought. However, I see no need to suggest, as my colleagues do, that , if only an all professional unit is sought, nurses may possibly be given a separate vote entitling them to remain unrepresented. There is no statutory support for a Sonotone-type election as between professional employees 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, but also the 27 assigned to other departments in these hospitals. As found by the Regional Director, nine RN's are permanently assigned to the laboratory department, which is work that takes them to patient rooms to take blood samples and throat cultures, insert tubes for gastroenterology, and to be available in the event of a problem with the patient.31 One RN is as- signed to the radiology department to assist and ob- serve the patient in what may be a difficult- situation, including the injection of dye into the vascular system. Three RN's are assigned to the the cardiopulmonary department, which also includes work on nursing floors. Some RN's-the number not appearing in the Regional Director's decision-are assigned to internal medicine. This involves emergency calls to patient rooms accompanied by respiratory technicians. Car- diac arrests and tracheotomies are treated . The Em- ployer employs eight radioisotope technicians in its nu- clear medicine department. Six of these are RN's and one a former LVN. All received additional training in nuclear medical technology. They inject radioisotopes ,into the blood stream and operate scanning machines. For this work only RN's or those with formal training in nuclear medicine are considered as applicants.32 Both Petitioner and Intervenor CNA are seeking to represent all RN's. In my view there is no reason not to include in the unit those RN's assigned to hospital departments other than the nursing department simply because these departments are separately supervised. It is not possible for the Board to grant a multiplicity of departmental units within a hospital without the undue proliferation which concerned the Congress . Therefore, in view of the patient-related function of all RN's and their background of professional training to that end, it seems reasonable and appropriate to group together in the RN unit all RN's wherever assigned in these hospitals.33 Unlike my colleagues I see no necessity to vote these RN's subject to challenge. Head Nurses: Among the approximately 300 RN's here involved there are 13 classified as head nurse, 3 being employed at Mercy San Juan . Depending upon their area of assignment they report to the director or the assistant director of nursing or to a nursing unit supervisor, classifications stipulated to be supervisory. The Regional Director found them to be supervisors and there is no request for review of this finding as to 31 It appears from oral argument that these RN's work independently of the medical laboratory technologists whose function it is to perform the laboratory tests , having satisfied California licensing requirements for that purpose. Supervision of these RN's by the chief laboratory technologist is said to be "of a functional rather than a technical nature " 32 The Regional Director found that these radioisotope technicians were professionals, noting that the group was predominantly composed of in- dividuals with a baccalaureate degree in nursing, plus additional highly specialized training 33 This would include the two RN's who work in the admitting depart- ment and those assigned to the educational training department these head nurses . I agree with it in the circumstances. I would point out, however, that the term "head nurse" does not necessarily involve supervisory authority as defined in Section 2(11). It may involve only 2(12) professional direction.34 At oral argument CNA stressed the importance of determining the supervisory issue on the basis of whether the RN's alleged to be supervisors actually have interests other than patient care. Decisions by RN's, including assignments to or- derlies and aides, are made from a patient care stand- point. On the other hand, a director of nursing obvi- ously must consider the interests of the Employer as well and is a supervisor as was stipulated here. But the fact remains that many RN's may have been given titles that suggest that they are 2(11) supervisors, whereas they do not exercise their authority "in the interest of the employer" within the meaning of that section, but rather as professionals directing other professionals or subprofessionals as contemplated by Section 2(12)(b) of the Act. My colleagues, having found an RN unit appropri- ate, interpret the Act and its legislative history as au- thorizing a finding that all professional employees ex- cluding RN's-except possibly excluding physicians, residents, and interns-are necessarily an appropriate unit. Intervenor CAMLT originally sought a unit of medical laboratory technologists, an employee group to which this Board granted "severance" from a mixed professional and nonprofessional unit that had been voluntarily established without a separate vote for the professional employees under Section 9(b)(1).35 At oral argument CAMLT expressed a much broadened interest, in an all professional unit excluding nurses, and "doctors" as well. My colleagues direct no election in that unit but would entertain a petition-with proper showing of interest-for all professionals excluding RN's. In this case I agree with this result. Other cases now pending before the Board present the issue con- cerning bargaining for interns and residents and/or medical staff physicians. However, I do not believe that it is wise for this Board to appear to foreclose the appropriateness of any other professional group. To my mind it is consistent with the purpose of this new legis- lation to view Congress ' nonproliferation admonition as limited to the specific hospital entity involved and its bargaining pattern or lack of it. I have no thought, of course, of recognizing every professional interest with a separate professional unit , but I do believe that the Board should allow some room for the pattern organi- zational development may take and not cast in a mold certain units as the only permissible ones . Congress itself declined to do that. We are simply urged to avoid 34 See discussion in my dissent in David Anna Corporation d/bla Snyder Bros Sun-Ray Drug, 208 NLRB 628 (1974), concerning head pharmacists. 35 See The Permanente Medical Group, 187 NLRB 1033 (1971). MERCY HOSPITALS OF SACRAMENTO, INC. 773 proliferation with respect to the problems of whatever hospital is under consideration by reason of a represen- tation petition or petitions. The service and maintenance unit here found appro- priate includes admittedly skilled painters and carpenters,36 as well as stationary engineers, the latter having had a separate bargaining history in a multiem- ployer unit to which this Employer was a party until 1970. Separate bargaining for stationary engineers working at hospitals in northern California appears to be an area pattern. Here Local 39 sought to add the skilled maintenance employees. Later Local 250, seek- ing the service employees, and Local 39 sought joint representation of a combined service and maintenance unit..I agree with my colleagues in granting that re- quest. I would note, however, that the legislative -his- tory does not foreclose traditional craft and departmen- tal units, such as stationary engineers, in the health care field or preclude consideration of area practice.37 I would construe this as not foreclosing a traditional maintenance department unit on initial organi- zation.3 B I agree with the appropriateness of a unit of business office clericals in this industry. In addition, although there are obvious differences in health care as com- pared with industry in its broad sense, I believe that those clericals who work away from the business office-on various floors of the hospital-are, like plant clericals, appropriately included in a service and maintenance unit with the nonprofessionals who also work on the various hospital floors and with whom they come in contact. In fact, in a hospital, a service and maintenance unit is essentially the counterpart of a production and maintenance unit. MEMBER KENNEDY, dissenting in part- I join my colleagues in their unit determinations ex- cept their finding that a registered nurses unit is appro- priate. I would affirm the Regional Director's finding that a unit of all professional employees is appropriate. My colleagues correctly direct an election in the service and maintenance unit, but they err in directing elec- tions in the registered nurses unit and in the business office clerical unit because no union has submitted an adequate showing of interest in either of those units. It is significant that both the Employer and the Peti- tioner in these cases are in "complete agreement with the decision of the Regional Director."" I do not 36 The sense of Employer's presentation at oral argument was to admit these skills 37 See the dissenting opinion in Shriners' Crippled Children's Hospital, 217 NLRB 806, issued this day. 38 This service and maintenance unit includes, some employees the Board is fin ding to be technicals in Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospital Center, 217 NLRB 775 (1975) As there is here no union seeking to represent technical employees separately, I agree that their inclusion in this instance is appropriate agree with the views expressed by my colleagues in footnote 18. I construe the statements of Petitioner's counsel set forth below in footnote 39 to be a clear expression of willingness to proceed to an election in a unit of all professional employees. I do not construe the statements of counsel at the oral argument to mean that Petitioner's "primary position" is to have an election in a registered nurses unit. In my view, an all professional employee unit is not only an appropriate unit but it is the "most appropriate unit." I recognize that Section 9 of the Act has been construed to mean that the Board is not required to direct an election in the "ultimate unit, or the most appropriate unit; the Act requires only that the unit be ,appropriate. s"40 I do not suggest that in no circumstances would I find a unit limited to registered nurses to be appropriate.41 Such determination must be based on the relevant facts in each case. I do not believe the two factors stressed by my colleagues justify a registered 39 The Employer herein filed a 100-page brief in opposition to the Request for Review. Counsel for the Employer urged at the oral argument that the "Board sustain the Regional Director's decision in its entirety." At the oral argument Member Fanning asked counsel for Petitioner, "if I understood what you are saying, you are now in complete agreement with the decision of our Regional Director?" Counsel Van Bourg replied, "That's the position that we are taking, insofar as the Mercy case is concerned " At another point the same counsel for Petitioner stated It is true that in many decisions nurses have been treated separately, but if you are now to treat the position of the amendments to the Act in context with what the Board has done previously with respect to professional units, then I think that the statement of position by Mr. Asher is well taken, namely, that if we take out each group of profes- sionals and treat them and deal with them separately, eventually we will have substantial groups of unrepresented people, because as a practical matter that portion of the Act which favors organization will be thwarted. I think that an all-professional unit in a given case, particularly such as the case in Mercy, is appropriate - Community of interest need not be one that deals with a product or with a patient It could be the method of remuneration, how the people interact with each other, how they meet, where they deal with the total aspect of the employer's operation, and I think that an all-professional unit clearly as in the case of the Mercys it can be defined as such. 40 Morand Brothers, Beverage Co., 91 NLRB 409 (1950), enfd 190 F.2d 576 (C.A. 7, 1951) 41 I think it desirable to point out that I have agreed with my colleagues in finding a unit of business office clerical employees to be appropriate. I do so because of the facts in this case and because of the agreement of the parties I note also that the election in the service and maintenance unit will be conducted with Local 250 and Local 39 appearing on the ballot as joint petitioners Only Local 250 seeks to represent the business office clerical unit My agreement with the result in this case should not be interpreted as complete agreement with the rationale stated by my colleagues with respect to the business office clericals I do not subscribe to the view that business office clericals can be represented only on the basis of a separate unit See my partial dissents in St Catherine's Hospital of Dominican Sisters ofKeno- sha, Wisconsin, Inc., 217 NLRB 787, issued today, and Mount Airy Foundation, d/b/a Mount Airy Psychiatric Center, 217 NLRB 802, issued today. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nurses unit in the face of Petitioner's expressed willing- ness to go to an election in an all professional unit. - The first factor stressed by my colleagues is the "complete authority over registered nurses in hospitals is centralized in the director of nursing and all hiring, firing, and regulating of working conditions, such as hours, shifts, and job descriptions, take place within the confines of the department of nursing." The second is "their singular history of separate representation and collective bargaining." The first point might be persua- sive if I found it supported by the record in this case. There are 27 registered nurses who are not a part of the Nursing Service Department. They work in the radi- ology, laboratory, business office, educational training, cardiopulmonary, internal medicine, and intravenous therapy departments and report to the supervisors of those departments. It is clear that the registered nurses in the laboratory work along side the medical labora- tory technologists, perform many of the same tasks, and are supervised by the chief laboratory technologist. On the second point, I do not propose to set forth a treatise reviewing the history of nursing. I note, how- ever, that this "singular history of separate representa- tion" is not entirely unrelated to sex consideration. Accordingly, I am not inclined to attach the same de- gree of importance to it as my colleagues- I think it significant that, with respect to those regis- tered nurses who are assigned to the Nursing Service Department, there is a constant interrelation of duties and community of interest with other professional em- ployees. The record shows the registered nurses and pharmacists work together in formulating patient pro- files for medication and insuring that the various drugs prescribed for each patient are compatible with one another. Pharmacists frequently consult with the regis- tered nurses to determine a patient's reaction to a par- ticular drug. Medical laboratory technologists work closely with the registered nurses in patient rooms and on the nursing floors drawing blood, taking throat cul- tures, and obtaining laboratory specimens. Physical therapists work with the registered nurses to help the patient regain mobility after a serious operation or a long convalescence. Dieticians and the registered nurses must work together to insure that the patient's diet is acceptable. All professional employees receive identical treatment under the Employer's wage and benefit programs. On considering the particular facts in this case, the diversity of supervision and functions performed by the various registered nurses, I conclude the registered nurses do not have a sufficiently distinct community of interest apart from the other professional employees as to warrant their establishment as a separate unit. Assuming, arguendo, that my colleagues are correct in finding units of registered nurses to be appropriate, their direction of -election in the' nurses and clerical units is contrary to longstanding policy that the ex- penditure of Agency time, effort, and funds should be avoided where it appears that the request for election is not supported by a "substantial number" of em- ployees in the unit.42 The Board has long followed the rule that 30 percent constitutes a "substantial num- ber." Section 101.18(a) of the Board's Statements of Procedure. The showing-of-interest requirement ena- bles the Board to determine whether or not the holding of an election is warranted. Shortly after the Regional Director's Decision herein the inadequate showing of interest came to the atten- tion of the Regional Director.43 The Regional Direc- tor notified the parties of the inadequacy of the showing of interest and that additional evidence of interest should be submitted.44 We have been administratively advised by the Regional Director that no additional showing of interest has been submitted. Based on the information furnished administratively by the Regional Director, it is clear that no union has as much as a- 10-percent showing of interest among the employees in either the nurses' or clerical unit.45 Directing elections under the foregoing circum- stances in these two units violates longstanding policy of this Agency. There is nothing in the legislative his- tory which remotely suggests that Congress intended that we should waive our usual interest showing re- quirements in the health care industry. Accordingly, I dissent from my colleagues' direction of elections in the registered nurses' unit as well as in the unit of business office clericals. 42 See Sec. 9(c)(1)(A) of the Act 43 In Case 20-RC-12301 the unit sought was limited to the 100 registered nurses at the Mercy General Hospital. There are approximately 300 regis- tered nurses employed at both Mercy General and- the Mercy San Juan facility. Similarly, the unit sought in Case 20-RC-12302 was limited to the business office clericals at Mercy San Juan and constituted less than one- half of such clericals in the unit for the combined facilities 44 The Employer submitted lists of eligible voters promptly after the Regional Director directed elections in these cases and specifically ques- tioned whether any labor organization had submitted a 30-percent showing of interest in either the professional unit or the clerical unit. The Regional Director advised the parties that no election would be conducted in these units because of the lack of showing of interest. 45 Fn 26 of the majority opinion states that the Regional Director shall not "conduct elections in such units unless and until the labor organizations involved submit timely showings of interest which warrant the conduct of an election in such enlarged units." Better practice requires dismissal of these petitions where, as here, there is less than a 10-percent interest show- ing in the units found appropriate These petitions have been on file for many months without a proper showing of interest having been submitted No time is specified by the majority for the production of the additional showing of interest and the petitions may remain on file for several more months before any action is taken This poses an unnecessary impediment upon the Employer in conducting its operations It forecloses participation by other labor organizations who may now have an interest in organizing these employees from utilizing the Board processes either as a petitioner or an intervenor even though there has never been on file a properly supported petition