San Jose Hospital & Health Center, Inc.

SAN JOSE HOSPITAL 21 San Jose Hospital & Health Center, Inc., O'Connor Hospital, Inc., and Good Samaritan Hospital of Santa Clara Valley and California Society of Hospital Pharmacists, Council on Economic Wel- fare, Petitioner. Cases 20-RC-13165, 20-RC- 13166, and 20-RC-13168 February 7, 1977 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon separate petitions duly filed under Section 9(c) of the National Labor Relations Act, as amend- ed, a consolidated hearing was held before Hearing Officer Lloyd McEntire of the National Labor Relations Board. Following the close of the hearing the Regional Director for Region 20 transferred these cases to the Board for decision. Thereafter, the Employers filed a joint brief, the Petitioner filed a joint brief for itself and as amicus curiae for American Society of Hospital Pharmacists, and Affiliated Hospitals of San Francisco, California Hospital Association, and American Hospitals Association filed briefs amicus curiae. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error.' They are hereby af- firmed. Upon the entire record in these cases, the Board finds: 1. The Employers are engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employers. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employers within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. I Contrary to the Hearing Officer, we permit the intervention of Association of Hospitals of Santa Clara County of which the Employers herein are members 2 El Camino Hospital, which is a state-operated public service hospital and therefore exempt from the Board's jurisdiction, is also a member of the Association 9 The Petitioner filed separate petitions for units of staff pharmacists at San Jose, O'Connor, and Good Samaritan Alexian, although not served with a petition, appeared at the hearing and fully participated therein During the hearing, the Petitioner sought to amend its separate single-employer unit requests by substituting therefor a request for an associationwide unit of staff 228 NLRB No. 6 4. Association of Hospitals of Santa Clara Coun- ty, the Intervenor herein, is an employer association which bargains on an associationwide basis for its members, including San Jose Hospital & Health Center, Inc.; O'Connor Hospital, Inc.; Good Samari- tan Hospital of Santa Clara Valley; and Alexian Brothers Hospital.2 The Petitioner, an affiliate of American Society of Hospital Pharmacists, seeks an associationwide unit of staff pharmacists at the hospitals of all nonexempt Association members. Alternatively, the Petitioner is willing to represent an associationwide unit of all unrepresented professional employees at these hospi- tals, including staff pharmacists, dietitians, social workers, physical therapists, occupational therapists, and recreational therapists, but excluding nurses and technical, service, and maintenance employees. The Association members agree as to the associationwide scope of the Petitioner' s units, but contend that its primary unit of staff pharmacists is too narrow because it would improperly exclude unrepresented professional employees who have a close community of interests with the pharmacists.3 O'Connor Hospital, Inc., has 1,015 employees in 68 departments and 226 job classifications, including 4 staff pharmacists, 3 dietitians, 6 physical therapists, and 1 occupational therapist. Good Samaritan Hospi- tal of Santa Clara Valley has 994 employees in 45 departments and 178 job classifications, including 4 pharmacists, 3 dietitians, I social worker, 1 recrea- tional therapist, and 1 occupational therapist. San Jose Hospital & Health Care Center, Inc., has 1,265 employees in 30 departments and 290 job classifica- tions, including 7 staff pharmacists, 4 staff dietitians, 6 staff social workers, 1 recreational therapist, 5 staff occupational therapists, and 10 staff physical thera- pists. Alexian Brothers Hospital has 480 employees in 22 departments and 90 job classifications, including 4 staff pharmacists and 2 staff dietitians. The parties stipulated, and we find, on the basis of the instant record, that the staff pharmacists, dietitians, physical therapists, pharmacists, social workers, occupational therapists, and recreational therapists at the four hospitals herein are professional employees.4 The staff pharmacists at the four hospitals in the proposed unit are separately supervised and, in view of their specialized occupations, have virtually no pharmacists covering San Jose, O'Connor, Good Samaritan, and Alexian, and all of those Association members agreed In these circumstances, including the Association's intervention in this proceeding, Alexian's appearance and participation therein , and the parties' general agreement as to the associationwide scope of whatever units are herein found appropriate, we include Alexian as a participant in this proceeding and in the election in the associationwide unit hereinafter found appropriate, subject to a sufficient showing of interest 4 Kaiser Foundation Hospitals, 219 NLRB 325 (1975), Mercy Hospitals of Sacramento, Inc, 217 NLRB 765, fn 15 (1975) 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contact or interchange with other employees. On the other hand, both the pharmacists and the other unrepresented professional employees possess a com- monality of professionalism, involving similar profes- sional educational requirements, internships, stan- dards, ethics, and responsibilities, and they all use independent judgment in performing their profes- sional duties.5 The pharmacists have similar, though higher, wage scales and share with the other profes- sional employees a 24-hour-a-day responsibility for patient care within their respective fields, regardless of the number of hours per day they may work as individuals. In Beth Israel Hospital and Geriatrics Center, 219 NLRB 520 (1975), and Kaiser Foundation Hospitals, supra, the Board, following principles enunciated in Mercy Hospitals of Sacramento, Inc., supra, found that units of hospital pharmacists, excluding other unre- presented professional employees, were inappropriate for purposes of collective bargaining on the grounds that the pharmacists did not possess a community of interest separate from that shared by other employees in the health care industry; that, unlike registered nurses, they lacked a tradition of separate representa- tion in collective bargaining; and that to accord the pharmacists separate representation in such circum- stances would result in an undue proliferation of bargaining units at odds with the legislative history of the Act. The Petitioner contends that, inasmuch as the Board in Mercy Hospitals, supra, attached the greatest significance to the singular history of representation and collective bargaining for nurses as a basis for establishing them in a separate bargaining unit, it should do likewise in the instant case, in view of an alleged impressive history of bargaining throughout the United States respecting separate units of hospital pharmacists. As proof, the Petitioner offered evidence of such units at 6 New York hospitals, pursuant to New York State Labor Board decisions; at 6 Pennsyl- vania hospitals, pursuant to Pennsylvania State Labor Board decisions; at 25 member hospitals of Kaiser Permanente in southern California; at Mr. Zion Hospital in San Francisco, California; and at Dameron Hospital in Stockton, California. We attach little weight to the New York history in view of a state S Kaiser Foundation Hospitals, 219 NLRB 325 (1975) 8 Although Member Fanning agrees that the evidence does not demon- strate that pharmacists have enjoyed the singular history and tradition of separate representation in collective bargaining that RN's have enjoyed, he does not agree with his colleagues that the bargaining history of the pharmacists in New York should be accorded "little weight " In his opinion, the aforementioned situations clearly present evidence of separate represen- tation which is not significantly lessened because the representation was in accord with a state statute statute, obviously at odds with the health amend- ments' policy against proliferation of units, which mandates a pharmacist unit finding when pharma- cists are found to be professionals. We likewise accord little weight to the experience at Kaiser Permanente or at Mt. Zion. These situations do not support a history of separate bargaining for pharma- cists since in each instance the bargaining units included nonprofessional employees. This leaves the six hospitals in Pennsylvania and Dameron Hospital in Stockton, California, which are alone free from statutory unit restraints and limited to professional pharmacists only. We believe this history is not sufficient to warrant a change in our policy with respect to such units.6 In accordance with the Board's prior decisions finding inappropriate separate units of pharmacists, in Beth Israel Hospital, supra, and Kaiser Foundation Hospitals, supra, and finding appropriate units of professionals which included pharmacists in Domini- can Santa Cruz Hospital, 218 NLRB 1211(1975), and Mercy Hospitals, supra, we find that the pharmacists, unlike nurses, possess neither a community of interest separate from that shared by other professional employees in the health care industry,7 nor a singular history of collective bargaining which would other- wise entitle them to separate representation.8 To accord them separate representation in such circum- stances would constitute an undue proliferation of bargaining units .9 Accordingly, we find that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All professional employees at San Jose Hospital & Health Center, Inc., O'Connor Hospital, Inc., Good Samaritan Hospital of Santa Clara Valley, and Alexian Brothers Hospital, in Santa Clara, California, including staff pharmacists, dietitians, social workers, physical therapists, occupational therapists, and recreational therapists, but exclud- ing nurses and technical, service and maintenance employees. [Direction of Election 10 and Excelsior footnote omitted from publication.] r Kaiser Foundation Hospitals, supra 8 Kaiser Foundation Hospitals, supra, Mercy Hospitals, supra 9 Beth Israel Hospital, supra 10 Inasmuch as the unit found appropriate is broader than that originally petitioned for, the Petitioner is accorded 10 days from the date of this Decision to furnish a sufficient showing of interest , in the event that its current showing is insufficient Failure to do so within this period will result in dismissal of the petition