Otis Hospital Inc.

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Otis Hospital Inc.' and Massachusetts Hospital Workers' Union, Local 880, Service Employees Inter- national Union, AFL-CIO, Petitioner.2 Cases 1- RC-13583, 1-RC-13584, and 1-RC-13585 July 16, 1975 DECISION ON REVIEW On December 9, 1974, the Regional Director for Region 1 issued a Decision and Direction of Election in each of the three above-enumerated proceedings' In accordance with the stipulation of the parties, the Regional Director directed elections: (1) In Case 1-RC-13583-in a unit of all li- censed practical nurses employed by the Em- ployer at its 85 Otis Street, Cambridge, Massa- chusetts, hospital, excluding all other employees, guards, and supervisors as defined in the Act; (2) In Case 1-RC-13584-in a unit of all em- ployees employed by the Employer at its 85 Otis Street, Cambridge, Massachusetts, location in- cluding nurses aides, orderlies, dietary workers, housekeepers, maintenance workers, supply workers, ward clerks, social service workers, physical therapy assistants, X-ray technicians, switchboard operators, and office clerical em- ployees, but excluding pharmacists, physical therapists, licensed practical nurses, registered nurses, professional employees, business manag- er, guards, and supervisors as defined in the Act; and (3) In Case 1-RC-13585-in a unit of all regis- tered nurses employed by the Employer at its 85 Otis Street, Cambridge, Massachusetts, location, excluding all other employees, guards, and su- pervisors as defined in the Act. Pursuant to National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Re- gional Director's decisions on the ground that the Board's delegation of power to Regional Directors to determine appropriate bargaining units and related representational issues 4 was unconstitutional. By The Employer's name appears as amended at hearing. 2 The Petitioner's name appears as amended at hearing. 3 The Regional Director consolidated the cases for purposes of hearing and thereupon severed the cases for decision . Because the issues on review presented by each case are identical , we have reconsolidated these cases for purposes of this Decision on Review. 4 See 26 F.R. 3911 (1961). telegraphic order dated January 16, 1975, the Board, sua sponte, granted review "with respect to the units involved herein." Review was not granted on the question of the constitutionality of the delegation of authority to the Regional Director.' The telegraphic order coincided with our determi- nation, also issued January 16, 1975, to schedule oral argument on the composition of appropriate bargain- ing units in the health care industry .6 Thereafter, on May 5, 1975, the Board issued its decisions in the cases orally argued, and in other lead cases.' Those cases left open the question of the effectiveness of stipulations designating units not in conformity with the determinations made in contested cases. Upon consideration we conclude that in the health care industry we will give effect to all stipulations designating unit compositions that do not contravene the provisions or purposes of the Act or well-settled Board policies.' This conclusion is based on several considerations. First and foremost, to give the parties to our repre- sentation proceedings the broadest permissible lati- tude to mutually define the context in which collec- tive bargaining should take place is consonant with the design of the Act and its stated policy to encour- age the practice and procedure of collective bargain- ing. Such a policy demands that questions prelimi- nary to the establishment of the bargaining relationship be expeditiously resolved. N.L.R. B. v. O. K. Van Storage, Inc., 297 F.2d 74, 76 (C.A. 5, 1961). The expeditious resolution of preliminary questions will be impeded if we ourselves, absent statutory command or compelling policy consider- ations, initiate additional delay simply because the parties' shared perspective does not comport with our own. The conclusion we reach is also consistent with the legislative history surrounding passage of the health care amendments. In July 1973 Senator Taft pro- posed legislation to remove the Section 2(2) exemp- tion for nonprofit hospitals. The Taft bill, S.2292, in- 3 See Wallace Shops, Inc., 133 NLRB 36 (1961); Weyerhaeuser Company. 142 N LRB 702 (1%3) See also Pennsylvania Labor Relations Board v. Frank Butz, Joseph Butz, and Stanley Butz, t/d/b/a Modern Home Appliance Com- pony, 411 Pa. 360. reversed 192 A.2d 707 (1963). 6 Member Kennedy dissented from the grant of oral argument. 7 See Mercy Hospitals of Sacramento, Inc., 217 NLRB No. 131 (1975); St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc., 217 NLRB No. 133 (1975); Newington Children's Hospital, 217 NLRB No. 134 (1975); Sisters of St. Joseph of Peace, 217 NLRB No. 135 (1975); Duke University, 217 NLRB No. 136 (1975); Mount Airy Foundation, d/b/a Mount Airy Psychiatric Center, 217 NLRB No. 137 (1975). See also Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hos- pital Center, 217 N LRB No. 132 (1975); Shriners Hospitals for Crippled Chil- dren, 217 NLRB No. 138 (1975). t See, e.g., Retail Clerks Union Local No. 324, Retail Clerks International Association, AFL-CIO (Vincent Drugs No. 3, Inc.), 144 NLRB 1247 (1963); Harvey Russell, 145 NLRB 1486, 1488 (1964). 219 NLRB No. 55 OTIS HOSPITAL, INC. cluded language limiting the number of bargaining units in the health care industry. Significantly, the Taft bill also provided "[t]hat units other than those set forth . . . may be agreed to by the employer and the labor organization." 9 At the time the Taft bill was being considered, the American Hospital Associ- ation (AHA) proposed substantially similar legisla- tion, most notably with respect to the limitation on the number of bargaining units. The AHA proposal similarly included a provision "That the [B]oard may find appropriate a unit narrower in scope that is agreed upon by the employer and the bargaining rep- resentative." 10 The Taft bill, S.2292, was not report- ed out of committee apparently in part because its unit limitations, opposed by many labor organiza- tions, were not sufficiently flexible." However, the provisions of the Taft bill and the AHA proposal are significant only because they demonstrate that the question of granting employers and labor organiza- tions the broadest permissible latitude in agreeing upon unit compositions was, throughout the legisla- tive history, universally answered in the affirmative, even by those who proposed to limit the number and types of units which the Board could find appropri- ate. Finally, the conclusion we reach is acknowledg- ment that not all health care institutions may be ex- actly alike. That is, we feel, the first lesson learned from the recent debates. Between categories of em- ployees similarly titled there may be significant dif- ferences, not only in wages, hours, supervision, and the like, but more importantly in functions, responsi- bilities, procedures, and even expertise. Practice or standards may differ from one locale to another, not only with respect to collective-bargaining patterns but also with respect to health care delivery itself. When parties contest the emphasis to be given to such characteristics, we are, of necessity, the arbiter. When their perceptions coincide, however, candor compels the conclusion that in the absence of a statu- tory command 12 or policy considerations within our own expertise, we are not the better judge. We are, of course, mindful of our responsibility to protect the rights and interests of all employees and, to the extent stipulated units amount to mere agree- ments of convenience which can ultimately under- mine the interests of those excluded, they shall fail the test we set forth. We stress only the fact that a 9 See "Hearings on S.794 & S .2292 Before the Subcommittee on Labor," 93d Cong. 1st Sess. (1973) at pp. 12-13. 10 See id. at pp. 147-148. 11 See 120 Cong. Rec. S.6940 (daily ed., May 2, 1974-remarks of Senator Taft). 12 See Secs. 9(b)(1), 9(b)(3), and 2(3), the latter excluding supervisors from the term "employee." See, e .g., Wilson Transit Company, 75 NLRB 181, 183 (1947). 165 stipulated unit which does not comport with the stan- dards announced in contested cases will not be cast aside solely because it designates a unit we might find inappropriate had resolution of the issue not been agreed upon by the parties. Our initial concern, in the instant proceedings, in- volved, in Case 1-RC-13583, the stipulation setting forth a unit limited to licensed practical nurses (LPN's), and, in Case 1-RC-13584, the stipulated in- clusion of office clerical employees in the service and maintenance unit. With regard to the LPN's, we have recently an- nounced, in St. Catherine's Hospital of Dominican Sis- ters of Kenosha, Wisconsin, Inc.,13 that a unit of LPN's excluding other technical employees is, in our view, contrary to the thrust of the legislative history of the recent amendments.14 Such a unit is, therefore, gener- ally "inappropriate." However, a unit limited to LPN's alone does not run counter to either the ex- press provisions or the broader purposes of the Act.'5 Nor can it be said that the unit violates well-settled Board principles: in fact the appropriateness of a unit limited to LPN's has been the source of consid- erable and sometimes conflicting decisional activity, both prior and subsequent to the recent amend- ments.16 We conclude that, for the reasons expressed earlier in this decision, we shall accept and deem ap- propriate a separate unit of LPN's if agreed upon by the parties." 13 217 NLRB No. 133 (1975) 14 Member Penello, dissenting in part in St. Catherine's, vigorously object- ed to the majority's finding that a separate unit to technical employees, including LPN 's, was appropriate. His disagreement was based on his view that the legislative history preceding the passage of the 1974 health care amendments to the National Labor Relations Act requires this Board to find that all nonprofessionals in a health care facility, with the exception of business office clericals, must be included in one unit for collective -bargain- ing purposes. See his concurring opinion in Mount Airy Foundation, d/b/a Mount Airy Psychiatric Center, 217 NLRB No. 137 (1975). 15 Member Penello would not find the parties ' stipulation setting forth a unit limited to LPN's to be contrary to Board policy. However, in the ab- sence of such a clear stipulation by the parties , he would agree with his dissenting colleague and would not find a unit limited to LPN's to be appro- priate since it would result in the kind of proliferation that the Congress has admonished the Board to prevent . In view of the circumstances herein, where such a stipulation exists and no party is contesting it, Member Penel- lo would deem it to be appropriate 16 See, e.g., New Fern Restorium Co, 175 NLRB 871 ( 1969); Drexel Home, Inc, 182 NLRB 1045 (1970), Jackson Manor Nursing Home, Inc, and/or Isaac Misraki d/b/a Jackson Manor Nursing Home, Snapper Creek Nursing Home and Arch Creek Nursing Home, 194 NLRB 892 (1972) But see Ma- deira Nursing Center, Inc, 203 NLRB 323 (1973); Leisure Hills Health Cen- ters, Inc., 203 NLRB 326 (1973). Madeira overruled New Fern Restorium and Jackson Manor Nursing Home, supra, to the extent they were inconsistent with the Madeira holding. 17 We perceive a clear distinction between this result and our refusal to honor the stipulated exclusion of LPN's from the units involved in Barnert Memorial Hospital, supra, In. 7. The Barnert petitioner sought separate units of service and maintenance employees and technical employees, excluding LPN's. The employer contended that only a combined unit of service, main- tenance, and technical employees, excluding LPN's, was appropriate. In other words, the parties in Barnert agreed to exclude LPN's but from differ- ent units Unlike the situation here, the parties in Barnert had no "shared Continued 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unlike our dissenting colleague, we do not view the result we reach here as inconsistent with our de- termination in St. Catherine's, supra, where the unit questions presented were contested by the parties. As we read our dissenting colleague's remarks, he con- tends that finding a unit inappropriate in a contested case necessarily compels the conclusion that similar unit compositions are inappropriate even if both par- ties agree on the composition. In response, we need point only to our classic treatment of plant clerical employees. Absent agreement of the parties, the Board has consistently refused to join office and plant cleri- cal employees in a single unit.'8 Thus, if such a join- der were requested and any party contested that re- quest, we would deem the requested unit inappropriate . If, however, both parties agreed on the joinder, we might well find , and in fact have found, such a unit appropriate . 19 These are rules of long standing, supported by numerous Board decisions. In essence, they indicate that an otherwise inappropri- ate unit can, in some circumstsnces, become appro- priate when accompanied by the mutual consent of all parties. What Member Kennedy and former Chairman Miller said in The Tribune Company, 190 NLRB 398 (1971 ), is, in our view, sound doctrine and worthy of note: He [former Member Brown] questions whether the function of the Board should be different in stipulated unit cases from that which prevails in other cases where the Board initially determines the appropriate unit. We think, in common with the reviewing courts, that the Board's function should be dif- ferent. Parties that come before the Board have a special interest in securing the speedy resolu- tion of questions concerning representation [fn. omitted]. To this end, we permit parties to stipu- late to the appropriateness of the unit, and to various inclusions and exclusions, so long as (a) their agreement is approved by the Regional Di- rector, and (b) their agreement does not violate any express statutory provisions or established Board policies. perspective" as to what unit in their work place would function well, and be an appropriate one. With no Board pronouncement in the lead hospital cases having issued at the time of the Barnert hearing, we were unwilling to treat the employer's "agreement" to exclude LPN's from an otherwise all- inclusive unit as applicable in the event the Board found , as it did, a unit limited to technical employees appropriate. 18 See e.g., The Kroger Co., 204 NLRB 1055 (1973); Mosier Safe Company, 188 NLRB 650 (1971); Weyerhaeuser Company, 173 NLRB 1170 (1968); Vulcanized Rubber and Plastics Company, Inc., 129 NLRB 1256 (1961), The Rudolph Wurlitzer Company, 117 NLRB 6 (1957). See also Fisher Controls Company, 192 NLRB 514, 515 (1971); Weber Aircraft, Division of Walter Kidde & Company, Inc, 191 NLRB 10 (1971) 19 See Eder Co., 108 NLRB 1417.(1954); Westinghouse Air Brake Compa- ny, Union Switch & Signal Division, 119 NLRB 1391 (1958) We believe we have done no more than permit the parties "to stipulate to the appropriateness" of their units when "their agreement does not violate any ex- press statutory provisions or established Board poli- cies." With regard to the stipulated inclusion of office clericals in the service and maintenance unit, it has been Board policy not to give effect to the agreed- upon inclusion of office clericals in production and maintenance units unless the stipulation is coupled with a bargaining history including both groups.20 We have, at the same time, limited application of that policy to manufacturing, as opposed to retail or wholesale, operations.21 We have, in our recent deci- sions in the health care industry, analogized the ser- vice and maintenance unit to the production and maintenance unit of the industrial sector 22 That analogy must, however, be read in the context of our legislative directive to be mindful of the conse- quences of bargaining unit fragmentation. Because the agreed-upon inclusion of office clericals in a ser- vice and maintenance unit is in keeping with that directive, we see no reason to set aside the agreement to include office clericals. For the above reasons we affirm the Regional Di- rector in full and hereby remand these proceedings to him for the purpose of conducting elections pursuant to his Decisions and Directions of Election, with the proviso that the payroll period for determining eligi- bility in all cases shall be that immediately preceding the date of this Decision on Review.23 MEMBER KENNEDY, dissenting: I agreed with the conclusion of all of my col- leagues in the St. Catherine's Hospital case "that a unit consisting solely of licensed practical nurses is inappropriate." 24 I dissent from their decision in this case to direct an election in an inappropriate unit limited to licensed practical nurses. I am mystified as 20 See Oregon Macaroni Company, 124 NLRB 1001 (1959). See generally John H. Harland Company, 127 NLRB 588 (1960). 21 See Charles Bruning Company, Inc., 126 NLRB 140, 142 ( 1960). 22 See, e.g., Newington Children's Hospital, 217 NLRB No. 134 (1975) 23 [Excelsior footnote omitted from publication.] 24 St Catherine 's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc, 217 NLRB No. 133, issued May 5, 1975 The majority stated in that opin- ion: One of the issues presented by this case is whether licensed practical nurses at the Employer's hospital should be granted a separate bargain- ing unit as sought by the Petitioner. As to this issue, we find, for the reasons setforth hereinafter, that a unit consisting solely of licensed practi- cal nurses is inappropriate [Emphasis supplied.] Although Member Penello and I dissented in the St Catherine 's case, we made clear that LPN's should be included in a unit with service and mainte- nance employees. See also our dissent in Nathan and Miriam Barnert Memo- rial Hospital Association d/b/a Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975). Prior to the adoption of the health care amendments to the Act, I expressed the view that a separate unit of LPN's was inappro- priate. See my dissent in Extendicare of West Virginia, inc, d/b/a St Luke's Hospital, 203 NLRB 1232 (1973). OTIS HOSPITAL, INC. 167 to why my colleagues honor a stipulation of the par- ties with respect to a separate unit of LPN's in the instant case when they felt compelled to reject the stipulation of the parties with respect to the LPN's in the recent Barnert Memorial case 25 In the Barnert Memorial case the Board stated: While the Board will generally honor a stipula- tion of the parties if that stipulation is not con- trary, to Board policy, it is Board policy to join in a single unit all technical employees similarly employed and to find a unit of technical em- ployees inappropriate where it does not include all of the employees in that category. We there- fore include the LPN's in the technical unit we have found appropriate, notwithstanding the parties' stipulation, since we find that stipulation contrary to Board policy. Having said on May 5, 1975, that they will not honor stipulations which are contrary to Board policy and also having said on May 5, 1975, that a separate unit of LPN's is inappropriate, I do not understand why my colleagues now honor the stipulation for a sepa- rate unit of LPN's in this case.26 What did the majority mean on page 7 of their slip opinion in the St. Catherine's case when they said: "This legislative history weighs against our finding appropriate a separate unit of licensed practical nurs- es."? My colleagues are today announcing that (legis- lative history to the contrary notwithstanding) it is Board policy to run elections in inappropriate units 25 Nathan and Miriam Barnert Memorial Hospital Association, supra. 26 The stipulation in the instant case was agreed to on November 22, 1974, more than 5 months prior to the Board's pronouncement in the lead hospital cases. Accordingly, this Board should be just as "unwilling" to honor the Employer's agreement in this case as it was "unwilling" in the Barnert case. limited to LPN's. The ink is hardly dry on their May 5 decision and the majority is now repudiating their decision. Do my colleagues intend to order employ- ers to bargain in inappropriate units consisting solely of licensed practical nurses? It appears that the majority decision in the instant case is predicated on the notion that "no established Board policies" were involved in the unit placement of LPN's in the Barnert Memorial case. I am content to leave to the reader the proper interpretation of the language of the majority in Barnert Memorial with a reminder that: The Moving Finger writes; and, having writ, Moves on: nor all your Piety nor Wit Shall lure it back to cancel half a Line, Nor all your Tears wash out a Word of it27 It is totally unnecessary for my colleagues to de- part in this case from the principle they accepted and enunciated on May 5, 1975, "that a unit consisting solely of licensed practical nurses is inappropriate." No useful purpose is served by that departure. In the consolidated case, Otis Hospital, Inc., 1-RC-13584, the same petitioner herein has sought a service and maintenance unit and the Regional Director has di- rected an election in that unit. My colleagues are re- peating in this case the same error they made in Ex- tendicare and which Congress disapproved in adopting the health care amendments. I respectfully suggest that there is no more valid reason to honor the stipulation of the parties in the instant case than there was in the Barnert Memorial case. I would not honor the stipulation herein in light of the opinion of all Board Members in the St. Catherine's case that a unit limited to LPN's is inap- propriate. 27 Omar Khayyam's "Rubaryat," stanza 71.