North Memorial Medical Center

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Memorial Medical Center and Metropolitan Emergency Medical Technicians Association , Peti- tioner. Case 18-RC-10612 May 28, 1976 DECISION ON REVIEW AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 24, 1975, the Regional Director for Region 18 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found appropriate a separate unit of emergency med- ical technicians, including ambulance drivers and ambulance stewards, employed by the Employer at its nonprofit health care institution in Minneapolis, Minnesota Thereafter, in accordance with Section 102 67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision, together with a supporting brief, on the grounds, inter aha, that in making his unit finding he departed from precedent The American Hospital Association, as an amacus curiae, filed a statement in support of the request for review On October 29, 1975, the National Labor Rela- tions Board by telegraphic order granted the request for review and stayed the election pending decision on review Thereafter, the Employer filed a brief on review and a request for oral argument The amicus also filed a brief on review 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 considered the entire record in this case, including the Employer's brief on review and the amicus brief,' and makes the following findings The Employer and the amicus contend that the Petitioner's requested unit confined to emergency medical technicians (EMT's) is inappropriate under the Board's unit policy established for health care institutions and that the Regional Director, in reach- ing his contrary finding, erred in giving controlling weight to a history of bargaining for such employees in a separate unit They argue that this bargaining history is entitled to less than controlling weight be- cause the provisions of Minnesota law,2 within the framework of which the bargaining relationship arose, are in basic conflict with the policies of the i The Employer's request for oral argument is hereby denied as the record and briefs adequately present the issues and the positions of the parties 2 Minn Stat § 179 35, et seq National Labor Relations Act We find merit in these contentions The Employer operates a nonprofit health care fa- cility referred to as an "acute, short-term, general care hospital " Its ambulance service, a subsection of its transportation department, is under the supervi- sion of a transportation officer and his assistant 3 The service employs about 24 EMT's (12 ambulance driv- ers and 12 stewards) who operate five ambulances out of three locations a main station at the hospital itself and two section stations in Brooklyn Park and Wayzata, Minnesota The Wayzata location has one ambulance and operates 24 hours a day, 7 days a week The Brooklyn Park location has two ambu- lances, but one is used merely as a backup unit That station operates around the clock 4 days a week, and 18 hours per day 3 days a week There is one ambu- lance driver and one steward stationed at each sec- tion station during all hours of operation EMT's generally work five 8-hour shifts per week but can work up to 16 hours (two 8-hour shifts in succession) They do not rotate from one shift to another, but some are scheduled to work at the various locations Requests for ambulances generated by the police and private citizens are received by the dispatching control center located near the hospital's switch- board and relayed to the proper station Two-way radio contact is maintained between the dispatcher and the various ambulances The ambulance drivers and stewards perform es- sentially the same functions They receive 16 hours of standard first aid training, 53 hours of advanced first aid training, as well as a coronary care course which consists of 21 hours of classwork and 20 to 30 hours of clinical work Additionally, to qualify as EMT's they must receive another 81 hours of instruction from the in-service training subdepartment of the nursing administration Furthermore, each employee is currently undergoing a paramedic course at Hen- nepin County General Hospital consisting of 160 hours of classwork and from 60 to 80 hours of clini- cal work EMT's are not licensed, registered, or certi- fied as such EMT's are qualified to give initial and advanced first aid to patients who are to be transported to the hospital They control any bleeding, open an airway, perform splinting and backboard functions, and gen- erally attempt to stabilize the patient for the trip to the hospital If the initial diagnosis indicates a cardi- ac problem, they usually attach an electrocardio- graph machine which they have in their vehicle This machine transmits the rhythm of the patient's heart to the emergency room of the hospital where it is 3 The Employer maintains vehicles used by hospital personnel for home visits meetings, and general pickup and delivery as well as the ambulances 224 NLRB No 28 NORTH MEMORIAL MEDICAL CENTER 219 monitored by a doctor who will in turn direct the driver or steward via two-way radio communications in regard to drugs to be administered or other actions to be taken Furthermore, drivers and stewards can start an intravenous device on their own motion and have acquired training to initially treat severe burns, traumatic bleeding, and low blood pressure They are also trained in childbirth procedures EMT's maintain constant radio contact with the dispatcher and have a direct telephone line to emer- gency room physicians They come in contact with nurses and physicians in the emergency room when they bring patients into the hospital and when called in to start "IV's" on emergency room patients They also have occasional contact with a variety of other hospital employees when called to restrain violent patients in the psychiatric unit or to help lift a patient from the floor Additionally, when EMT's are sched- uled to work at the main station in the hospital they eat in the same cafeteria facilities used by other hos- pital employees When the hospital's transportation department was founded in 1961, the Employer voluntarily rec- ognized Taxicab, Livery, Ambulance and Vending Drivers, Allied Sales Drivers, Helpers, and Inside Employees Union, Local 958, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, referred to herein as Local 958, as collective-bargaining representative of the EMT's Sometime prior to the execution of the most recent 2-year contract, which expired October 31, 1975, Local 958 was succeeded by Teamsters Lo- cal 792 In the negotiation of their 2-year contracts in 1967, 1969, and 1973, the Employer and Local 958 were unable to reach agreement and were required to submit their disputes to compulsory arbitration, pur- suant to the provisions of the Minnesota Charitable Hospitals Act which prohibit strikes, work stoppages, and lockouts Further, at the time their 1971 contract was negotiated, there were mandatory wage and price controls in force On March 10, 1975, pursuant to a deauthorization election in Case 18-UD-76, Lo- cal 792's authority to negotiate a union-security agreement for the EMT's was rescinded Local 792 did not intervene in the instant proceeding and has filed a disclaimer of interest in representing the EMT's or participating in any election which might be directed None of the labor organizations current- ly representing other units of the Employer's employ- ees seeks to represent the EMT's 4 4 Various labor organizations represent employees in a number of sepa- rate collective bargaining units such as nonprofessional employees in a number of classifications, RN's LPN s, watch and maintenance employees, radiological technologists and instructors and registered pharmacists Most of the technicians and technologists employed by Employer including e g We conclude that perpetuation of the unit of EMT's which has been represented by Teamsters Lo- cal 792 and its predecessor would not be warranted The Regional Director's reliance on the bargaining history to support his contrary finding is misplaced For while bargaining history is relevant in determin- ing the appropriateness of a unit, it is not the sole factor Under the circumstances herein, we find it is not controlling We believe that the present case is distinguishable in several respects from St Joseph Hospitals wherein we indicated a reluctance to disturb bargaining units which have been established by mutual agreement of the parties and in which there have been long histo- ries of continuous and harmonious collective bar- gaining We note at the outset that the bargaining history in this case took place under the Minnesota statute which permitted the formation of fragmented units such as the one sought herein 6 This is in sharp con- trast with the principal thrust of the legislative histo- ry of the health care amendments of the Act, admon- ishing the Board to avoid undue proliferation of bargaining units in the health care industry I In providing a format for organizing nongovern- mental nonprofit hospital employees in Minnesota, the Minnesota statute simultaneously deprived the parties of resort to economic power in the form of strike and lockout Thus, successive and disruptive work stoppages were neither a possibility nor a threat Instead, industrial peace was maintained through the imposition of mandatory arbitration to resolve contractual disputes Under this statutory scheme, the bargaining history in the unit here sought was something less than harmonious In ac- cordance with the provisions of state law, arbitration was required to settle three out of seven contracts between the Employer and the Teamsters, including the most recent agreement, expiring October 31, 1975 8 Now that the parties are governed by Federal law, the statutory peace-keeping mechanism which substantially contributed to any former appearance of stability has been eliminated 9 Moreover, while the unit sought is identical to that represented by the Teamsters since 1961, the parties currently before the medical technologists, laboratory assistants, cyto-technologists tissue tech- nicians record technicians medical technicians, OR technicians dental technicians occupational therapy technicians, respiratory therapists and technicians, and EEG technicians, are currently unrepresented 5 St Joseph Hospital & Medical Center et al 219 NLRB 892 (1975) 6 Note the large number of separate units currently in existence at the Employer s facility 7 See, e g, Mercy Hospital of Sacramento, Inc, 217 NLRB 765 (1975) Compare In Re State of Minnesota, et al, 219 NLRB 1095 (1975) 8 As noted earlier, one of the four remaining contracts reached through bargaining was negotiated in the face of mandatory wage and price con trots 9 See In Re State of Minnesota et al, supra 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board are not the same parties who have met at the bargaining table in the past Thus, at least one ele- ment of continuity, namely, the identity of the labor organization, has changed Based on the foregoing, we see little to be gained in perpetuating what ap- pears to us to be a relatively small splinter group as a bargaining unit As for the composition of the unit sought, we view the interest of the EMT's as too closely linked with those of other hospital employees to justify finding that they constitute a separate appropriate unit for collective-bargaining purposes under the Act While the EMT's have separate immediate supervision and somewhat different working conditions, these factors are outweighed, in our opinion, by the fact that they perform medical functions closely integrated with those performed at the hospital and frequently in conjunction with other hospital employees 10 Fur- thermore, there are other hospital employees who drive the hospital's vehicles which are maintained by the transportation department Upon the foregoing facts, and with the above considerations in mind, we find the requested unit to be inappropriate Accordingly, we shall dismiss the instant petition 11 ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed MEMBER FANNING, dissenting I dissent from my colleagues' conclusion that the emergency medical technicians interest is too closely linked with that of other hospital employees to justify a finding that they constitute a separate appropriate unit for collective-bargaining purposes Like the Regional Director, I find that the request- ed unit of EMT's, including ambulance drivers and stewards, is an appropriate unit because these em- ployees possess a community of interest separate and distinct from the broader interest which they share with other hospital employees The ambulance driv- ers and stewards are separately supervised, work dif- ferent hours than other hospital employees, and are paid on the basis of separate wage rate classifica- tions The unit employees operate five ambulances from three different locations including a main sta- 10 Compare E H Koester Bakery Co Inc 136 NLRB 1006 (1962) Among the factors to which the Board gives great weight in determining where the predominant interests of truckdrivers lie are the extent to which their driving duties are integrated with those of plant employees whether they perform plant functions in addition to their driving duties and the frequency of their contacts with plant employees 1 As no labor organization seeks to represent the EMT s on any other basis we need not-and do not-in this proceeding determine whether they must be represented as part of a service and maintenance unit or whether they may be included in a unit of technical employees tion at the hospital and two section stations in Brooklyn Park and Wayzata, Minnesota At Brook- lyn Park, the Employer parks its ambulance in the volunteer fire station and the EMT's use the fire station's meeting room as their quarters While in Wayzata, the ambulance is parked in a garage be- hind a florist shop and the EMT's quarters are in an office inside the garage This evidence indicates that the unit employees have distinctive working condi- tions Although the EMT's are dispatched for ambulance service from a common switchboard located at the hospital, they have little contact with other hospital employees The only significant contact evidenced occurs when the EMT's interact with doctors and nurses while bringing patients into the emergency room There is no evidence of job transfers between unit employees and other job classifications in the hospital As indicated by the numerous hours of specialized training outlined in the majority opinion, the unit employees are highly skilled and perform sophisticat- ed tasks during the course of the drive to the hospital, such as open airways, deliver babies, and give ad- vanced first aid In short, the EMT's are required to do that which is necessary to stabilize a patient for the ride to the hospital In addition to the extensive training re- quired of unit employees, they are also required to have chauffeur licenses The majority, in finding a unit of EMT's to be inappropriate, not only ignores the evidence of their singular homogeneous community of interest, but also places no importance upon the fact that the EMT's have been represented separate and apart from other hospital employees for 14 years Since 1961, the Employer has voluntarily recognized and bargained with the collective-bargaining representa- tive of the EMT's without ever having challenged or questioned the appropriateness of the EMT's unit The majority disregards the bargaining history and in the process fails to follow the established Board poli- cy not to invalidate, as inappropriate, historically es- tablished units unless required to do so by the dic- tates of the Act or other compelling circumstances 12 Without citing precedent, my colleagues circum- vent the Board's explicit policy statements in St Jo- seph Hospital & Medical Center, et al 13 that it is reluc- tant to disturb bargaining units in the health care industry which have been mutually agreed upon by the parties In attempting to distinguish St Joseph Hospital 1 2 Si Joseph Hospital & Medical Center et al 219 NLRB 892 (1975) The Great Atlantic & Pacific Tea Company Inc 153 NLRB 1549 (1965) Harvey Russel, 145 NLRB 1486 1488 (1964) 13 219 NLRB 892, supra NORTH MEMORIAL MEDICAL CENTER 221 from the subject case by emphasizing the fact that the petitioning Union is not the same union that has been representing the EMT's, my colleagues appar- ently judge the importance to be given bargaining history on the continuity of the bargaining represen- tative rather than the continuity of the unit for 14 consecutive years Also, my colleagues deemphasize the importance of the EMT's 14 years of separate representation merely because the collective bargain- ing was governed by the Minnesota statute which prohibits strikes and lockouts Regardless of the stat- ute under which bargaining took place, the fact re- mains that the Employer did recognize for 14 years that the EMT's possess a distinct community of in- terest and bargained with them separate and apart from other hospital employees without challenging the appropriateness of the unit For this reason, I believe the majority errs in relying on In Re Minne- sota, supra, because there the issue was not the signif- icance of bargaining history, but rather whether the Minnesota labor statute substantially departed from the statutory scheme of the Act such that the cession of jurisdiction over nonprofit hospitals to the State of Minnesota was inappropriate Further, the majority relies on the fact that the identity of the bargaining representative has changed as a basis for denying the EMT's the right to contin- ued separate representation As the EMT's were dis- satisfied with the way the Teamsters represented them, they, on March 10, 1975, voted to rescind the authority of Teamsters Local 792 to negotiate a union-security agreement In my view there is every reason not to penalize continued separate representa- tion of these employees simply because they exer- cised their statutory right of deauthorization To be noted is the fact that Local 792 has disclaimed inter- est in representing the EMT's In essence, the majority's position is that the non- profit hospital amendment's admonishment to avoid undue proliferation in the health care industry man- dates that the Board ignore traditional unit criteria and the relevance of a 14-year bargaining history in which the employees were represented separate and apart from other hospital employees As the majority has not cited one iota of evidence to indicate that Congress so intended the Board to revolutionize its unit considerations in the health care industry, I rely on well-established Board principles and find that the totality of the evidence clearly indicates that the employees sought enjoy a singular homogeneous community of interest apart from all others There- fore, I would direct an election