Lydia E. Hall Hospital

LYDIA E. HALL HOSPITAL 573 Carl H. Neuman, M.D. d/b/a Lydia E. Hall Hospital and Registered Nurses Guild of Local 1115, Joint Board, Nursing Home and Hospital Employees Division, Petitioner. Case 29-RC-3512 December 23, 1976 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLo On September 1, 1976, the Regional Director for Region 29 issued his Decision and Direction of Election in the above-entitled proceeding in which he found that a petitioned for unit including registered nurses and graduate nurses would be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.' However, because the incumbent Union, Registered Nurses Association, National Organization of Industrial Trade Unions (hereinafter referred to as RNA),2 was unwilling to add the graduate nurses to the unit of registered nurses it currently represents, the Regional Director directed separate elections in two voting groups; the existing unit of registered nurses and the unrepresented unit of graduate nurses. In the event that a majority of those voting in the first group selected the Intervenor, the Regional Director would find that to be an appropriate unit; and if a majority of those voting in the group of graduate nurses selected the Petitioner, the Regional Director would find that group to be -a separate appropriate residual unit. If a majority of the employees in the existing unit did not vote for the Intervenor, the Regional Director would include the two voting groups in a single overall unit which he found to be appropriate, and pool their votes. The votes for the Intervenor would be counted as valid votes, but neither for nor against Petitioner. All other votes would be accorded their face value, whether for representation by Petitioner or for no union. In the event that a majority of the valid ballots were not cast either for the Petitioner or against representation, the election would be deemed inconclusive, and a second election would be conducted among employees in the broader unit in which they would vote as to whether or not they desire to be represented by Petitioner.3 On September 10, 1976, the Employer, in accor- dance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, filed a request for review of the decision of [ The relevant portion of the Regional Ihrector's decision is attached hereto as an appendix. 2 The Intervenor on the basis of a contractual interest. 3 Felix Half & Brother, Inc., 132 NLRB 1523 (1961). 227 NLRB No. 85 the Regional Director on the ground that it raises substantial issues of law and/or policy by departure from Board precedent. By telegraphic order dated September 30, 1976, the Board granted the Employer's request for review and stayed the election pending decision on review. 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 considered the entire record in this case with respect to the issues under review, and makes the following findings: The Employer operates a proprietary hospital in Freeport, New York. On August 6, 1974, in Case 29- RC-2640, the Intervenor, RNA, was certified4 as bargaining representative of a unit of registered nurses, including the employee classifications of all full-time, regular part-time, and regular per diem associate nursing care coordinators, assistant nursing care coordinators, and nursing practitioners at Doc- tor's Hospital, which was the name under which Employer then operated. The Employer and the Intervenor then entered into a collective-bargaining agreement, effective from November 1, 1974, through October 31, 1976, covering the above-described unit employees. Although neither the certification nor the contract refers to the graduate nurses in contention here, the record reveals that they were not included in the contract unit. There are approximately 120 registered nurses and 15-25 graduate nurses. The graduate nurses are graduates of accredited nursing schools who have not yet taken or passed their registered nursing examina- tions. They are hired by the'Employer to perform the duties of registered nurses, under the supervision of registered nurses. Those who become certified move into registered nurse status; those who fail to obtain certification within the year covered by their tempo- rary permits will, if the Employer decides to retain them, be demoted to licensed practical-nurse status.5 As stated above, the graduate nurses are hired to perform all the duties of registered nurses, albeit under supervision. The scheduling process for both registered nurses and graduate- nurses is the same and, although they appear on the shift schedules as graduate nurses, they are counted as registered nurses for the purpose of determining the required nursing complement for each floor. Furthermore, the wages of graduate nurses are similar to those of newly hired registered nurses without previous experience. 4 Not reported in printed volumes of Board decisions. 5 The licensed practical nurses are represented in a separate unit by a labor organization not involved in this proceeding. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director, while fording that the graduate nurses should be included in the, unit, directed that the election be conducted according to the above-described process to_avoid compelling the incumbent Intervenor to represent the unrepresented graduate nurses .6 The Employer objects to -the vote- pooling aspect of the process as unauthorized by, and inconsistent with, the Act and Board Rules and Regulations regarding runoff elections.7 While there is no specific authorization for such a procedure, neither the Act nor the Rules and Regulations precludes the Board.. from fashioning special proce- dures to deal with unusual problems and the Board has customarily done so. We ford no merit in this argument of the Employer. We find more persuasive the Employer's contention that, inasmuch as the Regional Director's decision contemplates the possible creation of a residual unit of graduate nurses, it is at odds with the express congressional policy against 'the proliferation of bargaining units in the health care industry. Further- more, the transitory nature of graduate nurse status argues against the recognition of a separate residual unit of graduate nurses; no employee may remain in that classification for more than a year, and during that year they are in all respects similar to registered nurses. In view of the relatively small number of graduate nurses, as well as the similarity and interrelation of their duties, pay, and working conditions with those of registered nurses, the inclusion of graduate nurses in the larger unit of registered nurses clearly would be appropriate.g_ Indeed; these factors, plus graduate nurses' transitory status, require the conclusion that they do not comprise an indentifiable group which may constitute a separate unit. Further, where a group of employees such as the graduate nurses has been excluded from the historical unit more through historical accident than because of any real difference in function or working conditions, the Board should recognize that to 'grant a self- determination election to such a group would be to permit it to perpetuate the fringe defect, by voting to maintain unrepresented status. Therefore, we are correcting the fringe defect in the historical unit by including those previously unrepresented employees in the unit. In summary, it is clear that, if the election were to be held according to the process set forth by the Regional Director, one possible result would entail either an undue proliferation of bargaining units or the perpetuation of a fringe defect in the historical unit. Neither alternative is acceptable, especially in light of the factors favoring inclusion of the graduate nurses in the historical' unit of registered nurses.-The Board cannot adopt an election procedure which would run contrary to congressional policy and the Board's principles merely because of a labor organi- zation's reluctance to represent a small group of employees whose inclusion in the historical unit is so obviously appropriate. Accordingly, we ford that the following employees of the Employer have a sufficient community of interest to constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time, regular part-time and regular per diem registered nurses, including associate nurs- ing care coordinators, assistant nursing care coordinators, nursing practitioners, and all gradu- ate nurses, excluding the Director of Nursing, Associate Director of Nursing, Assistant Director of Nursing-Night Supervisor, Assistant Director of Nursing-Evening Supervisor, Associate Direc- tor of Education, In-Service Instructor, Nursing Care Coordinator, all other employees, guards and supervisors as defined in the Act. - [Direction -of Election and Excelsior footnote omit- ted from publication.] APPENDIX 5. The Petitioner seeks to represent a unit of registered nurses including graduate nurses. The Employer and the Intervenor agree that a unit of registered nurses is appropriate, but they would exclude the graduate nurses. On August 6, 1974, in Case 29-RC-2640, the Intervenor was certified as bargaining representative of a unit of all full-time, regular part-time, and regular per diem associate nursing care coordinators, assistant nursing care coordinators, and nursing practitioners at Doctor's Hospital, which was the name under which the Employer then operated. The Employer and Intervenor then entered into a collec- tive-bargaining contract covering the above-de- scribed unit employees, which contract was effective from November 1, 1974, through October 31, 1976. The associate nursing care coordinators, assistant nursing care coordinators and nursing practitioners referred to therein are the registered nurses sought 6 The Regional Director stated in his opinion that the Board in such and Regulations which provide that a runoff election is to be held between circumstances will not require an incumbent union to represent previously the two choices receiving the most votes in the election. unrepresented employees. In support of this opinion he cites Felix Half, 8 In Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975), the Board supra included nurse-pernuttees, equivalent to the graduate nurses here, in the T The Employer cites Sec. 9(c)(3) of the Act and Sec 102 70 of the Rules same unit with the registered nurses. LYDIA E. HALL HOSPITAL here. Neither the certification nor the contract refers to the graduate nurses in contention here. However, the record reveals that they were not included in the contract unit. There are approximately 120 registered nurses and 15-25 graduate nurses. The graduate nurses are graduates of accredited nursing schools who have not yet taken or passed their licensing examinations for certification and licensing.-, They are hired by the Employer to perform the duties of registered nurses, under supervision, and are given 1 year to attain certification. At, the end of that period, if they are not certified and licensed, they either are discharged or demoted to licensed practical nurse status. Their hours, working conditions, and wages are similar to those of newly hired registered nurses without previ- ous experience. In Mercy Hospitals of Sacramento, Inc.,4 the Board included nurse-permittees„ equivalent-of the graduate nurses here in the same unit with the registered 575 nurses. Accordingly, I find that they should be included in the unit. Nevertheless, the Intervenor, which is the incumbent union herein, does not desire to add them to the unit it currently represents. Although it does desire to participate in an election in the existing unit. In these circumstances, the Board does not require the incumbent union to represent the unrepresented employees.5 Therefore, I shall make no final unit determination at this time. Rather, I shall conduct an election among the, registered nurses in the existing unit to ascertain whether they wish to continue to be represented by the Intervenor. I shall, therefore direct separate elections, in the-two voting groups, excluding from each voting group the Director of Nursing, Associate Director of Nursing, Assistant Director of Nursing-Night Supervisor, Assistant Director of Nursing-Evening Supervisor, Associate Director of Education, In-Service Instruc- tor, Nursing" Care Coordinator, all other employees, guards and supervisors as defined in the Act., 4 217 NLRB 765 1 5 Felix Ha f & Brother, Inc., 132 NLRB 1523.