Southwest Community Hospital

SOUTHWEST COMMUNITY HOSPITAL 351 Southwest Community Hospital and Service Employ- ees International Union Local No. 579, AFL-CIO. Case 10-RC-10203 July 22, 1975 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO The petition in the above-entitled proceeding was filed on November 11, 1974. Pursuant to a Stipula- tion for Certification Upon Consent Election ap- proved November 26, 1974, an election by secret bal- lot was conducted on December 20, 1974, among the employees in the stipulated appropriate unit.' Upon conclusion of the balloting, the parties were fur- nished a tally of ballots which shows that of approxi- mately 275 eligible voters, 73 cast valid votes for the Petitioner, 12 cast valid votes for the Intervenor,' and 88 cast valid votes against the participating labor or- ganizations. There were 42 challenged ballots, and no void ballots. Thus, the challenged ballots were sufficient in number to affect the results of the elec- tion. On December 30, 1974, the Petitioner filed timely objections to the election. Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director for Region 10 caused an investigation to be made concerning the objections and challenged bal- lots. On February 3, 1975, the Regional Director is- sued and served on the parties his Report on Objec- tions and Challenged Ballots. In his report, the Regional Director approved the Intervenor's with- drawal of its challenges and from further participa- tion in the proceeding. He also adopted the parties' stipulation as to the eligibility of two challenged vot- ers and as to the ineligibility of five challenged vot- ers. Three additional challenged voters were found ineligible to vote. The 32 remaining challenged bal- lots remained determinative, and the Regional Direc- tor recommended to the Board that a hearing be held to resolve the issues raised thereby due to the immi- nent possibility of the recurrence of challenges to these employees in another election and inasmuch as the classifications involve the duties of hospital cleri- cal workers. Attached to his report was a copy of a stipulation to set aside election entered into by the 1 "All licensed practical nurses , nurses' aides, orderlies, ward clerk, house- keeping, dietary and maintenance employees employed by the Employer at its hospital facility located at 501 Fairburn Road, S.W., Atlanta, Georgia, but excluding all professional employees , office clerical employees , guards and supervisors as defined in the Act." 2 Laborers' International Union of North America, Local No. 438, AFL- CIO parties and approved by the Regional Director on January 31, 1975, wherein it was agreed that the elec- tion held on December 20, 1974, be set aside and that a second election be held in the aforesaid stipulated unit .3 In his report the Regional Director also recom- mended that upon resolution of the 32 remaining challenges, and after a revised tally of ballots had issued, in the event that Petitioner did not receive a majority of the valid ballots cast, the election should be set aside in accordance with the stipulation of the parties and a second election should be conducted. On February 27, 1975, the Board, by its Deputy Executive Secretary, in the absence of exceptions to the Regional Director's report, issued an order di- recting hearing in which it adopted the Regional Director's recommendations as contained in his re- port, thereby sustaining the challenges to the ballots of the eight ineligible voters, and overruling the chal- lenges to the ballots of two other employees. The Board deferred the opening of the 2 challenged bal- lots pending resolutions of the 32 remaining chal- lenged ballots. The Board ordered that a hearing be held and authorized the Regional Director to issue notice thereof. On March 5, 1975, the Regional Director issued a notice of hearing. Pursuant to said notice, a hearing was held before Hearing Officer George L. Card, Jr., in Atlanta, Georgia, on March 25, 26, and 27, 1975. Both parties and the Regional Office were repre- sented at the hearing and were allowed full opportu- nity to participate, to examine and cross-examine witnesses, and to introduce proof. On April 29, 1975, the Hearing Officer issued and served on the parties his Report and Recommendations on Challenged Ballots. In his report, the Hearing Officer found that of the remaining 32 employees in issue 10 were eligi- ble and 22 were ineligible voters. He further found that even were all 12 ballots of the employees found to be eligible cast in favor of the Petitioner, it would still not have a majority of the valid votes cast and therefore it would be unnecessary to recommend that any ballots be opened and counted. Thereafter, the Employer filed exceptions to the Hearing Officer's report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 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. At the hearing the Employer moved to dismiss the J In the stipulation to set aside election the parties agreed to waive the right to file exceptions to the Regional Director's report and any right to a hearing on challenged ballots involving employees about whose eligibility they had agreed. 219 NLRB No. 56 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition and/or suspend the proceeding on the grounds that this matter should be considered de novo at such time as the Board issued its guidelines for unit determination in health care facilities. It fur- ther moved to dismiss the petition on the ground that there was no apparent agreement or mutuality of un- derstanding between the parties as evidenced by a reading of the stipulated appropriate unit and the resultant "inordinate" number of challenged ballots in the election. The Hearing Officer denied the Employer's motion and on March 27, 1975, the Board, by its Assistant Executive Secretary, denied the Employer's request for leave to appeal ruling of Hearing Officer denying its motion to suspend pro- ceedings pending Board disposition of hospital unit cases. The Employer has renewed its motion before the Board. For the reasons set forth in Otis Hospital, Inc., 219 NLRB No. 55, even though the stipulation desig- nates a unit not in conformity with the determina- tions made in our lead hospital cases which were contested, we will give effect to the stipulation here- in 4 The Hearing Officer included in the unit a labora- tory receptionist, an inventory control clerk, a radiol- ogy receptionist, an emergency room clerk, a house- keeping team crew leader who works as a custodian and delivers messages, a linen "supervisor," a respi- ratory therapy technician, the respiratory department secretary, a respiratory therapist, and the assistant to the chief engineer. The Hearing Officer excluded from the unit a therapeutic dietician. In the absence of exceptions, we adopt pro forma the Hearing Officer's conclusions with regard to these employees. In addition, the Hearing Officer excluded from the unit certain medical records employees, business of- fice employees, admissions employees, a nursing services division employee, and patient service em- ployees. The Employer has excepted to these exclu- sions on the ground that they are inconsistent with the Board's recently issued lead cases establishing guidelines to units of employees appropriate for col- lective bargaining in the private health care field. The Board has reviewed the entire record in light of the exceptions and brief and the aforementioned lead cases and hereby adopts the Hearing Officer's 4 Member Penello would not find the parties' stipulation setting forth a unit limited to LPN's, nurses aides, orderlies, ward clerk, housekeeping, dietary, and maintenance employees to be contrary to Board policy. How- ever, in the absence of such a clear stipulation by the parties , he would not find such a unit to be appropriate since it fails to include all the nonprofes- sionals with the exception of business office clericals in one unit and there- fore would result in the kind of proliferation that the Congress has admon- ished the Board to prevent. In view of the circumstances herein, where such a clear stipulation exists to which the Employer has agreed on two occa- sions, Member Penello would deem the unit to be appropriate. findings and recommendations as amplified herein. Medical records employees: We agree with the Hearing Officer's exclusion of the medical records employees based on the fact that Charles Palmer, the Employer's administrative assistant to the personnel administrator, testified that these employees spent 90 percent of their time in the medical records office; Peggy Florence, the supervisor of these six employ- ees, stated that one of the employees spent "just about all day" in the office and the other five em- ployees spent "the biggest majority of the day" in the office; their time spent on the patient floors filing or searching for records is miniscule and is but inciden- tal to their office duties; the medical records depart- ment is located on the first floor near the business and admissions offices; the employees do not need any special training in terminology in order to be hired; only one employee has any specialized train- ing in coding and this was acquired at a 2-day coding institute; one of the employees has daily contact with the admissions employees who are included in the unit; their duties are essentially clerical in nature; and they do not perform medical care duties. In these circumstances, we have determined that the medical records employees do not share a sufficient community of interest with the unit employees to in- clude them in the unit.' Business office clericals: We agree with the Hearing Officer that the output control clerk, revenue control clerk, collections coordinator, cashier, and accounts payable clerk, who are all employed in the business office which is a part of the Employer's financial services department, should be excluded as they per- form "mainly business-type functions," 6 and there- fore have an insufficient community of interest with the unit employees. Admissions office employees: We agree with the Hearing Officer that the patient coordinator and two patient representatives who are employed in the ad- missions office should be excluded from the unit as they perform clerical functions not related to the medical care and treatment of patients; their patient contact is mainly in the nature of information gather- ing relative to the fulfillment of their clerical duties; they share common supervision with the business of- fice employees; their office is adjacent to the busi- ness office; they have frequent contact with the em- ployees in the business office; and they spend most 5 Cf. Sisters of St. Joseph of Peace, 217 NLRB No. 135 (1975); see Mercy Hospitals, of Sacramento, Inc., 217 NLRB No. 131 (1975); Extendieare of West Virginia, Inc., d/b/a St. Luke's Hospital, 203 NLRB 1232 (1973); Na- tional Medical Hospitals, Inc., of San Diego, d/b/a Chico Community Memo- rial Hospital, 215 NLRB No. 155 (1974). 6 See Mercy Hospitals, supra; Mt. Airy Foundation, d/b/a Mt. Atry Psychi- atric Center, 217 NLRB No. 137 (1975); St. Catherine's Hospital of Domini- can Sisters of Kenosha, Wisconsin, Inc., 217 NLRB No. 133 ( 1975); Newing- ton Children's Hospital, 217 NLRB No. 134 (1975). SOUTHWEST COMMUNITY HOSPITAL 353 of their time in the admitting office? Nursing services employee: We agree with the Hear- ing Officer that the staffing clerk in the nursing serv- ices director's office should be excluded from the unit as her duties are primarily clerical in nature; she works primarily in the administrative office which is adjacent to the business office; her floor contact is with supervision alone; and her contact with unit employees is over the telephone in the nature of in- formation gathering as to their availability relative to the fulfillment of her clerical duties.8 Patient services employees: We agree with the Hear- ing Officer that the PBX operator/receptionists should be excluded from the unit as having an insuf- ficient community of interest with the unit employees as they are essentially engaged in "mainly business- 7 See Sisters of St. Joseph of Peace, supra; Mercy Hospitals, supra, St Catherine's Hospital, supra; National Medical Hospitals, Inc., supra, Jackson Manor Nursing Home, Inc., etc., 194 NLRB 892 ( 1972); The Swanholm, an Operation of the Martin Luther Foundation, 186 NLRB 45 (1970); North Dade Hospital, Inc., etc., 210 NLRB 588 (1974). 8 See Mercy Hospitals, supra; Sisters of St. Joseph of Peace, supra, and Newington Children 's Hospital, supra. type functions" in that they answer the telephones, give information to visitors, patients, and physicians, keep a file on patient room assignments, sort and deliver incoming mail, pick up outgoing mail and process it for mailing, and assist the excluded patient service representatives with the preadmission proce- dure; their functions overlap with the excluded pa- tient representatives; and they are located on the first floor near the admissions and business offices? Accordingly, as our resolution of the challenges makes it unnecessary to open and count any ballots since even if all 12 ballots of the employees found to be eligible were cast in favor of the Petitioner it would still not have a majority of the valid votes cast, and since the parties in their stipulation to set aside election agreed that the election held on December 20, 1974, would be set aside and that a second elec- tion would be held in the aforesaid stipulated unit, we shall direct that a second election be held. [Direction of Second Election and Excelsior foot- note omitted from publication.] 9 See Mercy Hospitals, supra, Sisters of St Joseph of Peace, supra, St Catherine's Hospital, supra