Morristown-Hamblen Hospital Association

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morristown-Hamblen Hospital Association and Com- munications Workers of America, AFL-CIO, Peti- tioner. Cases 10-RC-10642, 10-RC-10643, 10- RC-10644, and 10-RC-10645 September 22, 1976 DECISION AND DIRECTION OF ELECTIONS BY MEMBERS FANNING, PENELLO, AND WALTHER Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hear- ing was held before Hearing Officer Thomas A. Palmer of the National Labor Relations Board on April 2, 7, and 13, 1976. Following the hearing and pursuant to Section 102.67 of the National Labor Re- lations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 10, this proceeding was transferred to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. 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. Upon the entire record in this proceeding, the Board finds: 1. The parties stipulated, and we find, that the Morristown-Hamblen Hospital Association, herein- after the Hospital or the Employer, is a Tennessee corporation with an office and place of business lo- cated in Morristown, Tennessee, where it is engaged in the operation of a hospital, and that during the past year the Employer had gross revenues in excess of $250,000, and additionally during this period has purchased and received goods in excess of $20,000 directly from "customers" outside the State of Ten- nessee. However, a question exists as to whether the Hos- pital is an "employer" within the meaning of Section 2(2) of the Act. The Hospital contends that it is a political subdivision of the State of Tennessee and Hamblen County, Tennessee, and is therefore ex- empt from the coverage of the Act.' The Board has held that an entity is entitled to the statutory exemption as a political subdivision under Section 2(2) if it is either (1) created directly by the i Sec. 2(2) of the Act excludes from the definition of "employer" any wholly owned Government corporation . or any State or political subdi- vision thereof .. . State, so as to constitute a department or an adminis- trative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.2 In January 1952, 13 private citizens-described in the record as "public spirited citizens" of Hamblen County joined together and applied for a charter of incorporation in order to establish a nonprofit hospi- tal. The application was granted by the State of Ten- nessee and a general welfare corporation known as the Morristown-Hamblen County Hospital Associa- tion was formed.3 The corporation was established for the object of engaging "in the establishment, maintenance and operation of a non-profit hospital." Based on the above, the Petitioner contends, and we agree, that Hamblen County did not directly create the Hospital, which therefore cannot be found to be a political subdivision under the first test enun- ciated in Hawkins. However, the Employer argues that the corpora- tion, shortly after its formation and prior even to the construction of the Hospital, changed its thrust so as to become a political subdivision. The Employer, af- ter being incorporated, conveyed its land to Ham- blen County. Thereafter, Hamblen County expended funds (through the issuance of general obligation bonds guaranteed by the county) for the acquisition of land, the building and equipping of the hospital, and for a time the operation of the hospital. Further, the Hospital pays no property taxes, no income tax, no state franchise and excise tax, and, with minor exceptions, no sales tax. However, the Board has held that an entity does not necessarily become an administrative arm of the State by occupying state-owned property .4 Further, as we have stated in cases such as Grey Nuns of the Sacred Heart,' the receipt of funds and assistance from exempt government entities does not necessari- ly cause an employer to become a political subdivi- sion of the government. The facts herein are similar to those in the aforementioned cases, and we thus conclude that the financial assistance rendered by Hamblen County to the Hospital is not such as would make the Hospital an exempt governmental entity. The Employer's reliance on Camden-Clark Memo- rial Hospital6 is misplaced. In that case, unlike here, the hospital in question was originally created by the city (i.e., the city of Parkersburg, West Virginia). 2 See N L R B v. The Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600 (1971). 3 The charter was renewed in 1973 without significant changes. 4 See, e.g., Bishop Randall Hospital, 217 NLRB 1129 (1975), and Highview, Incorporated, 223 NLRB 646 (1976) '221 NLRB 1215 (1975) 6 221 NLRB 945 (1975) 226 NLRB No. 13 MORRISTOWN-HAMBLEN HOSPITAL ASSN. Much later, about 1970, enabling legislation and city code provisions were passed in order to insulate the hospital from political influence. Nonetheless, the hospital continued to be owned, operated, and con- trolled by the city of Parkersburg. Various factors, not present in the case before us and in addition to financial support, demonstrated the control and ownership of the hospital by the municipality. For example, the hospital had no separate status as a le- gal entity and all litigation involving the hospital had to include the City .7 Also, membership on the board of directors of the hospital was subject to city council confirmation. In sum, the hospital in Camden-Clark was directly created by the city, and the later legisla- tion designed to end undue political influence did not remove the hospital from the control of the city. Here, additional factors cited by the Employer to support its position are not persuasive. The Em- ployer's board of trustees, while including mem- bers who serve by reason of their public positions, has a majority of members who serve as private citi- zens or by virtue of holding office in private organi- zations.8 A majority of the board of trustees may ap- point additional members, and no members are subject to confirmation or control by the municipali- ty. Also, the public officials serving on the Board hold office by virtue of the Hospital's articles of in- corporation and not by virtue of any statute or ordi- nance requiring their service on the board of trustees. The board of trustees' primary purpose is to meet once a year and appoint a nine-man board of direc- tors. The board of directors has control over the wag- es and working conditions of employees. Their poli- cies are effectuated by the Hospital's administrator, who oversees the day-to-day operations of the Hospi- tal. The Hospital's administrator annually submits a budget to the board of directors which either ap- proves or modifies the budget. The budget is not sub- ject to review by the board of trustees or any branch of the county government. It is clear that the local government plays a limited role in the affairs of the Hospital. The inclusion of some public officials on the board of trustees does not warrant a different conclusion. It is significant that the public officials who serve on the board of trustees serve by virtue of the Hospital's articles of incorporation and not by statute or ordinance. Also, 7In this case, the Employer has legal status separate from the county Also, in defending itself in a recent lawsuit, the Employer stated that it need not comply with the Tennessee Sunshme' Law because it was not a public hospital corporation. Rather, in that litigation , the Employer, in its verified amended answer, averred that it operated "as a private hospital for the benefit of the community" and had "the right to govern and control its facilities and the manner of its operation ...." 8 Of approximately 65 people currently serving on the board of trustees, about 21 members hold their position by virtue of being public officials. 77 as noted above, the board of trustees' almost sole responsibility is to appoint a board of directors, and thus the board of trustees is far removed from the actual direction and control of the Hospital. The Employer also notes that a provision in its bonds gives the county certain rights to protect itself in the event of default. However, the provision in question provides only that the Employer agrees, in the event of default, not to oppose the appointment of a receiver by a court of competent jurisdiction. This act does not establish that, even in default, the county would necessarily assume control of the Hos- pital.9 The Hospital herein does not turn away indigents, and it receives referrals from the county health de- partment. However, as stated by the Hospital's ad- ministrator, his posture toward the health depart- ment is one of "no relationship" but one of "cooperation." Thus, it is clear that the health de- partment exercises no control over the Employer and contributes no money to the Employer.10 The Hospital's policy towards indigents is consistent with its purpose of operating for the general welfare but does not,convert its operation into a "governmental function." In light of the evidence before us, we find that the Employer functions essentially as a private enter- prise. It was created by private citizens and currently operates with minimal involvement by the local gov- ernment. Hamblen County, whose primary contribu- tion to the Hospital has been through its issuance of general obligation bonds to finance the construction of the hospital facility," does not exercise any sub- stantial degree of control over the Employer. Ac- cordingly, we find that the Employer is not a political subdivision of Hamblen County and is an employer within the meaning of the Act. 2. The labor organization involved claims 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 Sections 9(c)(1) and 2(6) and (7) of the Act. 4. In regard to the appropriate units, the Petitioner seeks to represent employees in four separate units. 9In Bishop Randall Hospital, supra, a lease between the hospital and the county permitted the county, in the event of a breach by the hospital, to cancel the hospital's lease. However, the Board found that such circum- stances exhibited only insubstantial evidence of control by the county. io Referrals from the health department are expected, if able, to pay for hospital services, and the health department does not reimburse the Hospi- tal for those who fail to pay. "Though the county has at times contributed to the operating expenses of the Hospital, it does not regularly do so and is apparently not doing so at this time. 78 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD Case 10-RC-10642 In this case, Petitioner seeks a unit of all full-time registered nurses. The Employer contends that this unit should also include four emergency room physi- cians and one registered pharmacist. The Employer argues that, in view of the limited number of profes- sionals other than nurses, these doctors and the phar- macist should be included in an overall professional unit. However, it has been the Board's policy, subject to the facts in each case, to find appropriate a sepa- rate bargaining unit of registered nurses when a peti- tioner seeks that unit. 12 Here, the RN's are all employed in a single depart- ment and subject to the single overall supervision of the director of nursing services. The emergency room physicians report directly to the Hospital's adminis= trator or the board of directors, and the pharmacist reports to the director of supply. The nurses- have formal meetings among themselves, and there is no evidence that the doctors or the pharmacist attends these meetings. The nurses' educational prerequisites, duties and responsibilities, and pay scales differ sub- stantially from those of the emergency room physi- cians and the pharmacist. Under these circum- stances, we find the requested unit of all registered nurses to be appropriate, and we shall exclude the emergency room physicians and the pharmacist from the unit found appropriate. Also, the Petitioner contends, and the Employer disputes, that nurse Lois Cameron is a supervisor within the meaning of Section 2(11) of the Act. Cam- eron works as an I.V. therapist and also, on every other weekend, as a house nurse. During the time that Cameron serves as house nurse, it is clear that she exercises supervisory authority. As house nurse, Cameron is in charge of and has ultimate responsibil- ity for the 50 to 60 employees who work in nursing services. Thus, the primary question regarding Cam- eron is whether or not she serves as house nurse suffi- ciently often to warrant finding her to be a supervi- sor. The record shows that she worked in the capacity of house nurse at least 16 hours during each 2-week period and that this service is on a regularly scheduled basis. Under these circumstances, we find that Cameron exercises supervisory authority on a sufficient basis to justify finding her to be a supervi- sor. Accordingly, we conclude that Cameron is a su- pervisor and we therefore exclude her from the unit. Cases 10-RC-10644 and 10-RC-10645 The Petitioner seeks to represent -the service and 12 Mercy Hospitals of Sacramento, Inc, 217 NLRB 765 (1975) maintenance employees in a unit separate and dis- tinct from the unit of technical employees. The Em- ployer contends that the two aforementioned units should be combined into one overall- unit. The Em- ployer notes that the service and maintenance em- ployees have significant contact with the technical employees and that they are all hourly paid and are required to punch a timeclock: However, we find that, in the case before us, the relationship between the technical employees and the service and maintenance employees is very similar to the situations in cases where we have found separate units to be appropriate.13 Here, the technical employ- ees are more highly trained, are frequently higher paid, often work in separate laboratories or areas, and perform work requiring a higher degree of re- sponsibility than the service and maintenance em- ployees. Accordingly, we shall grant Petitioner's re- quest that the technical employees be found to constitute a separate appropriate unit and the service and maintenance employees be found to constitute a separate unit. Regarding the unit of technical employees, the Pe- titioner contends, and the Employer disputes, that Mira Callis should be excluded from the unit because of supervisory status. Callis serves as "Assistant Chief" to Chief Medical Technologist James Oakes (a stipulated supervisor). Testimony by Oakes indicated that whenever he is not present Callis will "most likely" take over for him. Also, Callis regularly makes out the schedule for laboratory employees. As part of her scheduling du- ties, Callis has authority to, approve ` overtime, to grant time off for illness, and to coordinate transfers with the section chiefs. When grievances arise but cannot be settled between the grievant and the sec- tion chief, the matter is referred to Callis, who at- tempts to resolve the problem'. Should the matter still not be resolved, it is referred to either Oakes or Dr. Finney (director of the laboratory). In light of Callis' authority-both when acting in place of Oakes and when exercising her regular duties as assistant chief-we find that'Callis is a supervisor within the meaning of the Act, and we shall exclude her from the unit. Case 10-RC-10643 The Petitioner seeks a unit of all business office clerical employees. However, the Petitioner submits that the medical records employees should be'includ- ed in' the aforementioned service-and maintenance 13 See, e g., Newington Children's Hospital, 217 NLRB 793 (1975); Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospital Center, 217 NLRB 775 (1975) MORRISTOWN-HAMBLEN HOSPITAL ASSN. unit, whereas the Employer requests that they be in- cluded in the unit of business office clerical employ- ees. The Board has normally included medical records employees in service and maintenance units, but where the facts of the case indicate their community of interest lies with the business office employees the Board has included them in the business office unit.14 There are seven employees in the medical records department, two clericals and five transcribers. Their office is located in a separate room across the hall from the business office employees. They are super- vised by Ruth Slover, who reports directly to the Hospital's administrator. One of the clerks primarily abstracts information from patients' charts for a computer and supplies necessary information to doc- tors and other departments throughout the Hospital. The other clerk is primarily responsible for receiving patients' charts, assembling and checking them, and sorting and filing various medical records. The tran- scribers transcribe all reports dictated by the doctors. The patients' charts are usually brought to the medi- cal records office by nurses or ward clerks. When necessary, the employees in the medical records of- fice take various charts and records to wherever they are needed on the hospital floor. Thus, the employees in question deal with patients' medical records rather than with the type of records dealt with in the business office, work closely with doctors and nurses, and have frequent contacts with service and maintenance employees (such as ward clerks). Accordingly, we shall exclude the medical records employees fromthe business office unit and include them in the service and maintenance unit. We find that the following employees of the Em- ployer constitute units appropriate for the purpose of collective bargaining within the meaning of Section 9(b) ' of the Act: Case 10-RC-10642 All registered nurses employed by the Employer at its Morristown-Hamblen Hospital facility in Morristown, Tennessee; excluding house nurses, pharmacist, emergency room physicians, super- visors as defined in the Act, guards, and all other employees. Case 10-RC-1064315 All business office clerical employees employed by the Employer at its Morristown-Hamblen 14 See William W Backus Hospital, 220 NLRB 414 (1975), but cf St Luke's Episcopal Hospital, Texas Children's Hospital, Texas Heart Institute, 222 NLRB 674 (1976) 79 Hospital facility in Morristown, Tennessee; ex- cluding medical records employees , confidential employees, guards, and supervisors as defined in the Act, and all other employees. Case 10-RC-10644 All technical employees employed by the Em- ployer at its Morristown-Hamblen Hospital fa- cility in Morristown, Tennessee; excluding ser- vice and maintenance employees, the assistant chief medical technologist, professional employ- ees, registered nurses, guards, and supervisors as defined in the Act, and all other employees. Case 10-RC-10645 All service and maintenance employees em- ployed by the Employer at its Morristown-Ham- blen Hospital facility in Morristown, Tennessee, including medical records employees; excluding technical employees, professional employees, guards, and supervisors as defined in the Act, and all other employees. [Direction of Elections omitted from publica- tion.] 16 MEMBER PENELLO, dissenting in part: I join my colleagues in their disposition of the is- sues in this case except that, for the reasons set forth in the dissenting opinions in Barnert Memorial Hospi- tal Center 17 and in Newington Children s Hospital,'8 I disagree with their decision to establish separate units of technical employees and service and mainte- nance employees. Mindful of the congressional mandate, as evi- denced by the legislative history preceding the pas- sage of the 1974 health care amendments to the Na- tional Labor Relations Act,19 to avoid proliferation of bargaining units in the health care industry, I would require that the technical employees be in- cluded in the service and maintenance unit. 15 In Cases 10-RC-10642 and 10-RC-10643, the Petitioner requested units, respectively, of "all full-time registered nurses" and "all full-time busi- ness office clerical employees." It is unclear from the record whether there are any employees in either of these classifications who are other than full time. However, it is the Board's established policy to include within an appropriate unit all full-time and regular part-time employees. Accordingly, our decision herein does not intend to exclude, regular part-time employees from the appropriate units 16 [Excelsior footnote omitted from publication I 1' 217 NLRB 775 (1975) 1s 217 NLRB 793 (1975) 19S Rept 93-766, 93d Cong, 2d sess 5 (1974), H Rept. 93-1051, 93d Cong, 2d sess 7 (1974)