Kaiser Foundation Hospitals, Inc.

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaiser Foundation Hospitals, Inc. and American Fed- eration of Nurses, Local 535, SEIU, AFL-CIO, CLC, Petitioner.' Case 31-RC-2984 July 17, 1975 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing in this case was held before Hearing Officer Sheri E. Ross of the National Labor Relations Board. Following the close of the hearing, the Re- gional Director for Region 31 transferred this case to the Board for decision . Thereafter, the Employer, the Petitioner, and Intervenor Kaiser Sunset Registered Nurses' Association, UNAC, filed briefs. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The parties stipulated that the Employer is a California corporation engaged in the operation of hospitals, one of which is located at Sunset and Edgemont in Los Angeles, California. During the year preceding the hearing, the Employer received revenues in excess of $500,000 and during the same period it purchased in excess of $50,000 in goods and supplies from concerns located outside the State of California. Accordingly, in view of the Employer's substantial effect on commerce , we find that it is en- gaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 2. The labor organizations involved claim to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent the registered nurses employed by the Employer at its Sunset and Edgemont hospital. The Employer, on the other hand, takes the position that the only appropriate unit should include the registered nurses at both the hospital and the clinic at the Sunset and Edgemont Medical Center. The clinic nurses are presently rep- 1 Kaiser Sunset Registered Nurses' Association, UNAC, and California Nurses Association affiliated with American Nurses Association , have both been granted intervention, based on a proper showing of interest. resented by Intervenor Kaiser Sunset Registered Nurses' Association, certified by the Board on April 3, 1974; that organization contends that the peti- tioned-for unit of hospital nurses constitutes an ap- propriate unit. The other Intervenor, California Nurses Association, expressed no preference as to the appropriate unit but desires, as do the other labor organizations involved herein, to participate in an election in whatever unit the Board finds appropri- ate. The only evidence presented concerning the issue of the appropriate unit consists of the records in two previously decided cases in which the Board found appropriate units of registered nurses at the Employer's Bellflower and Sunset clinics.2 The latter clinic is part of the same medical complex as the hospital involved herein. In those cases, the Board found that the registered nurses at the clinics possess a community of interest separate and distinct from that of the registered nurses at the hospitals. Thus, the evidence established that the clinic and hospital nurses are separately supervised. The day-to-day op- erations of the clinics and hospitals are directed by separate clinic and hospital administrators who sepa- rately implement the Employer's labor relations and personnel policies, hire and discharge nurses, sched- ule working hours, grant leaves of absence, and re- quisition additional nurses. Furthermore, the evi- dence established that the training, skills, duties, experience, and working hours of clinic and hospital nurses were different. In addition, there is little or no temporary interchange or contact between the hospi- tal and clinic nurses. As indicated above, the Employer contends that the only appropriate unit herein is an overall unit of hospital and clinic nurses at the Sunset and Edge- mont complex. The Employer urges that we recon- sider our previous decisions, referred to above, in light of the recent amendments to the Act extending the Board's jurisdiction over hospitals and the policy contained in the legislative history thereof against the proliferation of bargaining units in health care facili- ties. The Employer suggests that we treat the hospital nurses as an accretion to the existing certified unit of clinic nurses, citing such factors as physical proximi- ty, common use of lunchroom and parking facilities, comparable salaries and fringe benefits, identical li- censing requirements , some interchange, and com- mon overall labor relations and personnel policies. Alternatively, the Employer suggests that we revoke our certification of the unit of clinic nurses and di- 2 Southern California Permanente Medical Group, 209 NLRB 106 (1974), and Southern California Permanente Medical Group, 209 NLRB 110 (1974). These cases were decided prior to the enactment of the health care amend- ments to the Act. 219 NLRB No. 22 KAISER FOUNDATION HOSPITALS 169 rect an election in a single overall unit . For the rea- sons hereinafter expressed, we reject the Employer's contentions. To begin with, the factual basis for finding sepa- rate units of registered nurses at both the hospital and clinic remains the same. Thus, the facts listed above establish clearly the existence of separate lines of supervision and authority in the day-to-day opera- tions of the Employer's hospitals and clinics and fur- ther establish that the registered nurses in the hospi- tals possess different training, skills, duties, experience, and working conditions from the regis- tered nurses at the Employer's clinics. In these cir- cumstances, there is a clear basis for finding that sep- arate units of clinic and hospital nurses may be appropriate. In reaching this conclusion we are not unmindful of the principal thrust of the legislative history of the health care amendments to the Act to the effect that the Board should make every effort to avoid undue proliferation of bargaining units in the health care industry. Thus, while in this case an overall com- bined unit of clinic and hospital nurses at the Sunset and Edgemont medical complex would represent the optimum registered nurse unit within the meaning of the legislative history, we find that the unique history of bargaining in the unit of clinic nurses and the prior certification of Intervenor Kaiser Sunset Regis- tered Nurses' Association as the exclusive bargaining representative of the nurses in that unit place the in- stant case in a posture that requires us to reach a different result. Thus, we believe that it would defeat the broad policies of the Act either, as suggested by the Employer, to revoke our certification of the In- tervenor in the unit of clinic nurses, or to "accrete" the hospital nurses to the unit of clinic nurses with- out affording them an opportunity to vote on the selection of an exclusive bargaining representative. Accordingly, in order to preserve the integrity of our certification issued in 209 NLRB 110, to protect the interests of the hospital nurses in the selection of an exclusive bargaining representative, and to main- tain stability in labor relations in the clinic unit,3 we find that a unit of registered nurses at the Employer's hospital may constitute an appropriate bargaining unit and we shall direct an election therein. However, in accordance with the above findings, and in fur- therance of the congressional policies attendant to 3 While the parties stipulated at the hearing that no contract had been executed by the Employer and the Intervenor Kaiser Sunset Registered Nurses' Association covering the clinic nurses , we have been administra- t1vely informed that such a contract was fully negotiated but that the Em- ployer is refusing to execute the contract based on its contention that a separate unit of clinic nurses is inappropriate . A charge alleging that the Employer violated Sec. 8(a)(5) of the Act by its refusal to execute such contract was filed by the Intervenor and is currently being held in abeyance by the Regional Director pending the Board 's decision in the instant case the health care amendments to the Act discussed above, we find that, in the event Intervenor Kaiser Sunset Registered Nurses' Association should win the election among the hospital nurses, said unit of hospital nurses should be combined with the existing unit of registered nurses employed at the clinic. In so finding, we are guided by the congressional admoni- tion to avoid undue proliferation of bargaining units in the health care industry as well as by the fact that the hospital and clinic are located adjacent to one another in the same medical complex, sometimes se- parated only by a wall or a corridor. We also believe that combining the two units if the latter result oc- curs will not unduly disturb the bargaining relation- ship now existing between the parties in the smaller clinic unit. Accordingly, for the reasons stated above and upon the entire record, we shall direct an election in a bargaining unit consisting of all registered nurses employed by the Employer at its Sunset and Edge- mont hospital facility. In the event that a majority of the registered nurses in the above unit vote in favor of the Petitioner or the Intervenor California Nurses Association, we find that the following employees of the Employer will constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All Registered Nurses employed by the Employ- er at its Sunset and Edgemont facility, but ex- cluding; Directors and Assistant Directors of Nursing Services, In-Service Director, Supervi- sors, Nursing Care Coordinators, Nurse Teacher Practioners, Nurse Anesthetists, Guards and Su- pervisors within the meaning of the Act. However, in the event that a majority of the regis- tered nurses in the above voting unit vote in favor of the Intervenor Kaiser Sunset Registered Nurses' As- sociation, we find that the following employees will constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All registered nurses employed by the Employer at its Sunset and Edgemont hospital and clinic facilities, excluding directors and assistant direc- tors of nursing services, in-service director, nurs- ing care coordinators, nurse anesthetists, guards, and supervisors as defined in the Act, and we shall issue the appropriate certification which shall supersede the certification issued in the case reported at 209 NLRB 110. [Direction of Election omitted from publication.] 4 MEMBER KENNEDY, dissenting: I would find appropriate and direct an election in [Excelsior footnote omitted from publication ] 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a unit of all registered nurses at the Sunset and Edge- mont Medical Center. My colleagues acknowledge the "principal thrust of the legislative history of the health amendments to the Act to the effect that the Board should make every effort to avoid undue proliferation of bargain- ing units in the health care industry." Surely, two separate units of registered nurses at a single medical center is the type of undue proliferation that must be avoided if the congressional intent is to be imple- mented. The existing bargaining unit, limited to the clinic nurses, was found appropriate and thereafter certi- fied prior to the effective date of the 1974 amend- ments to the Act. The certification year has since expired and no collective-bargaining agreement cov- ering that unit has been signed by the parties. The basis for the original exclusion of the hospital nurses from the overall unit of registered nurses has ceased to exist.5 This significant change warrants a redeter- 3 See Duke University, 217 NLRB No. 136 (1975) mination of the unit.6 My colleagues apparently view the protection of the certification previously issued to be of the paramount importance .7 I assign a higher priority to the implementation of the 1974 health care amendments and congressional policy with re- spect thereto. I believe that we have the statutory responsibility to correct our earlier unit determination to conform to the amendments to the Act. Accordingly, I would direct a single election among all registered nurses of the medical center even though some of them may be currently represented by one of the Intervenors.8 This would afford all employees an equal voice in choosing a bargaining representative for the only unit that I would deem to be appropriate at this time. 6 See General Electric Company, 185 NLRB 13 (1970). 7 I do not read the majority decision as holding that in the absence of this certification they would find separate units appropriate for the clinic nurses and the hospital nurses . The fact that they direct the hospital nurses unit to be combined with the existing clinical nurses unit in the event that Kaiser Sunset Registered Association wins the election would appear to be a tacit rejection of two separate units of nurses in this facility if represented by the same union. 8 The Board has recognized that under special circumstances that the voting of both represented and unrepresented employees on the basis of a single unit is consistent with the policies of the Act. See D V Displays Corp., 134 NLRB 568 (1961)