Ohio Valley Hospital Association

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio Valley Hospital Association1 and National Economic Council of Scientists, Petitioner. Case 8-RC- I 0205 June 29, 1977 DEClSION ON REVlEW On January 14, 1976, the Regional Director for Region 8 issued a Decision and Direction of Election in the above-entitled proceeding in which he exclud- ed school of nursing instructors and assistant instructors, a student health nurse, emergency room doctors, and house physicians2 from an otherwise all-professional unit as requested by Petiti~ner.~ Thereafter, in accordance with 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, contend- ing that the above classifications of employees should be included in a unit of all other hospital professionals. By telegraphic order dated February 10, 1976, the National Labor Relations Board granted the request for review and stayed the election pending decision on review. Thereafter, the Employer filed a brief on review.4 The American Hospital Association filed a brief as amicus curiae. The Board has considered the entire record in this case, including the briefs on review, with respect to the issues under review and makes the following findings: The Employer is a nonprofit health care facility which provides both inpatient and outpatient care. The Employer's full-time and regular part-time general duty registered nurses are represented by the Ohio Nurses Association. No other employees are currently represented by any labor organization. The name ofthe Employer appears as amended at the hearing. Also excluded were currently represented registered nurses. The Regional Director included the following classifications of employees in the professional unit: medical laboratory technologists, physical therapists, therapeutic dietitians, pharmacists, librarians, coordina- tor ofstudent affairs. manager of multimedia services. and anesthetists. On the basis of responses to the notice to show cause issued herein, the Board hereby denies the Employer's motion to reopen the record, and concludes that the Petitioner herein is a viable labor organization. See Sr. Maty's Hospital, Inc., 220 NLRB 496 (1975). where we found "it appropriate to group together in the RN unit all RN's wherever assigned in the hospital." See also The Tnurees of Noble Hospiral, 218 NLRB 1441 (1975). where a nurse anesthetist was included in the RN unit even though working under the director of anesthesiology rather than in the nursing service department; and Newcon-Wellesley Hospital, 219 NLRB 699 (1975), where instructors and nursing chairmen in the school of nursing were included in the RN unit. See Kaiser Foundation Hospirals, 219 NLRB 325 (1975). where nurse anesthetists were excluded from the professional unit based on a finding that they shared a community of interest with other registered nurses who were already represented. Certainly, where no labor organization currently seeks to represent the unrepresented nurses, and where there is nc evidence that ;:.L ,.brxs seek, for themselves, representation, i~ is dilficult to justify Member Walther's characterization of our holding as failing to "assure employees the fullest freedom in exercising the rights guaranteed by the The school of nursing is a department of the hospital engaged in the education of nurses. A specific area of the hospital, set aside for the school, contains classrooms and clinical laboratories. The instructors, who are required to hold licenses as registered nurses but who perform no general duty nursing functions, conduct the didactic portion of the student nurses' education within the school. The clinical or practical aspect of that education is conducted almost exclusively in the patient care areas of the hospital, where the instructors and students are in frequent contact with all those employees who are directly involved in patient care, including general duty registered nurses. In addition, the instructors are frequently in the patient care areas preparing for teaching. The student health nurse is located in the school and is subject to the same general working conditions as the instructors. We agree with the Regional Director's conclusion that the nursing school instructors, assistant instruc- tors, and student health nurse share a closer community of interest with the already represented registered nurses than with the remaining profession- al employees,5 and we shall therefore exclude them from the professional unit hereh6 The Regional Director also excluded house physi- cians and emergency room doctors from the profes- sional unit. House physicians7 are supervised by the director of medical education who is a physician employed by the hospital. They are assigned to perform case histories and physical exams, and to assist in surgery. They are on call for routine orders throughout the hospital. The house physicians assist staff physicians, who are in private practice and who have hospital privileges, but who are not hospital employees. The emergency room doctors have responsibilities extending only to the emergency Act." We think it not only a matter of logic, though it is that, but also a matter of good labor relations to provide that the unrepresented n M s should look to the existing nurses unit for representation, if indeed they wish representation, rather than to force them into another unit which is appropriate without their inclusion, and which is the unit Petitioner seeks to represent. Inclusion of these three classifications of nurses in the unit found appropriate herein could lead to the undesirable result of requiring the Employer to bargain with two different unions concerning the terms and conditions of employment of registered nurses. Our exclusion of these nurses precludes that possibility, but does not, as our colleague suggests, deprive them ofthe opportunity to be represented in the future. In the words of Levine Hospiral of Hapard Inc., 219 NLRB 327 (1975), the exclusion of these nurses from the unit herein does not relegate them to a "state of perpetual unrepresentation." For it is quite clear that the k i n e Hospital scenario envisioned by our colleague is, simply, not before us at this time. If and when we are confronted by such a situation, Len'ne Hospird suggests that the Board would proffer an invitation to the cumnt representntive of the other nurses to add these three nursing classifications to its existing nurses unit. Additionally, that case suggests that the Board would entertain a petition seeking to represent a unit of all registered nurses, including the three in dispute herein. Levine Hospital does not suggest, however, that, upon re!ection of any such invitation. the Board woold fnrrv-r nr-4de representation of any excluded group of employees, either separately or as pan of some other unit. 7 These physicians are not interns, residents or fellom. 230 NLRB No. 84 OHIO VALLEY HOSPITAL ASSN. 605 room, and perform no duties outside the emergency room. They have the authority to order that tests and patient treatments be provided by the various departments of the hospital. They report to a chairman whom they have selected from among themselves. Both classifications of doctors work regular 8-hour shifts, and may serve on an on-call basis when not working their regularly scheduled shifts. The doctors are paid on an hourly basis, and receive substantially the same fringe benefits as do other professional employees. ~ 6 e house physician class&cation re- quires a graduate medical degree, and they are hired by the director of medical education and the pkrsonnel department. The emergency room doctors have been recruited as practicing doctors from within the community by the hospital's board of trustees. We, like the Regional Director, would exclude the involved doctors from the professional unit, as requested by Petitioner. By any reasoned analysis of community of interest criteria, physicians constitute a class unto themselves. Within the hospital hierar- chy, physicians are the pivotal employees and all other patient care employees are subject to their professional direction. The essential functions of the physician are not, and by law cannot, be performed by any other individuals. For that reason, limited supervisory authority over physicians is confined to other physicians and, simul)2neously, the responsi- bility to direct all other professionals, if that need should eventuate, is inherent in the physician's, and no other professional's, role. While this particular case does not delineate the measure of compensation of the physicians involved, it is, furthermore, com- mon knowledge that physicians are paid substantial- ly more than the overwhelming majority of other professional employees. Such considerations, in addition to those mentioned bv the Regional J u - - Director, namely, the unique and extensive educa- tion, training, and skills of the physician, more than amply support the conclusion that physicians, as a class, possess a separate and distinctive community of interest apart from other professional employees. In excluding doctors from the professional unit here involved, we are not unmindful that the Board has been admonished by Congress to avoid undue proliferation of bargaining units in the health care industry. However, we considered this general caveat in connection with our unit determinations ~ertain- 1 ~ ~-~ ~ ing to registered nurses and concluded that because of their special community of interest, that caveat did * Mercy Hospicab o/Sacramento, Inc., 217 NLRB 765 (1975). " Damrnican Sanra Cru: Hospital, 2 18 NLRB 12 1 1 (1975). "' [t.rcelsior footnote omitted from publication.] See New York University Medical Center, a Division of New York Ilniversiry. 217 NLRB 522 (1975), where the Board did not grant a separate not preclude the Board from placing them in a separate unit,8 or excluding them from an otherwise all professional unit, when reque~ted.~ In our opinion, doctors have at least as separate a commu- nity of interest as nurses and are therefore entitled to the same treatment. We shall therefore exclude them from the requested professional unit. Accordingly, we hereby remand the case to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election, except that the payroll period for detennin- ing eligibility shall be that ending immediately before the issuance date of this Decision on Review.lo MEMBER PENELLO, concurring in part and dissenting in part: I agree with my colleagues on the majority that the nursing school instructors, assistant instructors, and student health nurse should be excluded from the professional unit found appropriate herein. However, I disagree with their decision to exclude house physicians and emergency room doctors from that professional unit. My colleagues rely upon what they consider to be a distinct community of interest possessed by these doctors among themselves. I do not deny that physicians play a unique role in a hospital and that their education and training qualify them for peculiar res~onsibilities. However. I am of the o~inion that an; separate community of interest 'that these doctors might enjoy has been largely submerged in the broader community of interest which they share with other closely allied health care professional employees included in the unit at this hospital.11 Like the other professional employees, these physicians work regularly scheduled 8-hour shifts. They are paid on an hourly basis, as are medical technologists. They receive no more nor higher benefits than do other professionals included in the unit. These two classifications of doctors are in a category of wages designated by the Employer as exempt, which, while not explained in the record, also includes physical therapists, dietitians, and technologists, categories of professionals included in the unit. Both classifications of doctors are in constant contact with other professional employees in diag- nosing illnesses and directing patient treatment. However, they are not the only professional employ- ees at this hospital who make diagnoses and direct treatment. Registered nurse anesthetists who are included in the unit make diagnoses and initiate unit to certain psychiatrists. In so doing, the Board noted, inter alia, that such a separate unit could lead to the proliferation o f bargaining unifs at the medical center, and that these psych~atnsfs might share a community o f interest with other allied professionals. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patient treatment. Two members of the nursing school faculty with advanced degrees are involved in an independent psychiatric consultation service which does not operate under the direction of a physician. They make observations, diagnoses, and initiate treatment, although they may not prescribe medication. However, registered nurse anesthetists, like the house physicians and emergency room doctors, do prescribe medication. While the house physicians work with and direct that patient treatment be provided by various other professionals, they themselves are in a position subsidiary to that of the attending physician who, in effect, directs the major portion of a house physi- cian's duties. In this regard, they are assigned by the attending physician to perform case histories and physical exams, and to assist in surgery. I am of the opinion that these doctors do not possess such a singular and distinct community of interest as to warrant their exclusion from the professional unit. I do not deny that they have more education and training and more highly developed skills than do most other professional employees in the health care industry. Nor do I minimize the functional differences which exist among the various groups of professional employees at this hospital. Rather, I do not perceive such a great distinction among health care employees at the professional level which justifies carving out professional units along educational or functional lines. These health care professionals invariably have advanced and specialized education giving them certain highly developed skills in their own particular areas of expertise. Many, if not most, must be licensed and certified by state agencies and accredited by profes- sional organizations. They receive comparable wages and benefits (particularly in comparison to other employees), and generally work a 40-hour week. All these common characteristics of health care professional employees serve to demonstrate that they constitute a readily identifiable unit unto themselves. Although I agree that physicians share a greater community of interest with each other than they do with other professional employees, this is nonetheless true for other types of health care professionals, and is not a characteristic possessed solely by physicians. The Board has heretofore not granted separate bargaining units for medical labora- tory technologists12 or pharmacists,l3 for we recog- nized that these professionals were not shown to "possess interests evidencing community of interest ~ e r c ~ Hospitals of Sacramento, Inc., 2 17 NLRB 765 (1975). '3 Kairer Foundation Hospirah, 219 NLRB 325 (1975). l 4 Id. at 326. ' W ~ e r c j . H~spspirals of Sacramentu, Inc., supra at 769. l6 Id. at 767. l 7 Id. at 767. with each other separate from that shared with the other [professional] employees in the health care industry." l4 In addition to the lack of a separate community of interest, physicians as a whole, as well as other professional groups . . . have failed to demonstrate the kind or degree of separate representation for collective- bargaining purposes which was so important to our finding that registered nurses may constitute a separate professional bargaining unit. . . . [Nlone has demonstrated the development of such a tradition of separate collective bargaining as has been the case with registered nurses.l5 This established tradition was deemed to be "[plerhaps of the greatest significance in establishing the separate interests of registered nurses,"l6 even more so than the community of interest they enjoyed among themselves. We further noted that "[sleparate bargaining for other health care professionals, to the extent it has been shown to exist, appears to have been on a scale of considerably smaller propor- tions." l7 Furthermore, we must be constantly mindful of the congressional mandate to avoid the undue prolifera- tion of bargaining units in the health care industry. I recognize that there is a diversity of skills between each group of professional employees. But to grant a separate unit to each group along functional lines is to ignore the express admonition of Congress to take heed in determining the number of bargaining units in the health care industry.18 Therefore, considering all the above-cited factors, I would include the house physicians and emergency room doctors in the professional unit. MEMBER WALTHER, dissenting: I concur with Member Penello's opinion that house physicians and emergency room doctors should be included in the professional unit herein. Contrary to my colleagues, however, I would also include in the unit the nursing school instructors, the assistant nursing school instructors, and the student health nurse. In the instant proceeding, the Employer's general duty registered nurses historically have been repre- sented in a separate unit from which the nursing school instructors, assistant instructors, and the student health nurse have been excluded. The 18 I cannot help but note that my colleagues who are will~ng to exclude these phys~cians from the professional unlt herein are the same who would carve out separztr ,.;- :-I ,-rvicr *nL ..ial,,~zita)~cc er~~ployns, and lor technical employees. See Nuthon ond Miriam Barnen MemoriaI HosprtaI Assocrarron d/b/a Barnert Memoria/ HospiIaI Cenfer, 217 NLRB 775 (1975). OHIO VALLEY HOSPITAL ASSN. 607 nonincumbent Petitioner seeks a unit comprised of certain professional employees, excluding these three classifications. My colleagues, affirming the Regional Director, exclude these classifications from the unit sought. In reaching this result, my colleagues do not dispute the fact that the employees in these classifica- tions are professional employees, nor do they find that such employees have no community of interest with those included within the unit sought. Rather, the sole basis for my colleagues' exclusion of these employees lies in their finding that such employees share a "closer" community of interest with the already represented general duty registered nurses than with the other professional employees. The majority decision, in my view, rests on a far too subtle assessment of the relative community of interests between the employees in the three classifi- cations and the general duty registered nurses on the one hand and the remaining professional employees on the other. Such an approach, in my view, is totally unwarranted. Rather, it is clear that the nursing school instructors, the assistant instructors, and the student health nurse in fact share a community of interest with the professional employees and that, therefore, a sufficient basis exists to include the three classifications within the unit sought.19 Thus, there is no dispute that the employees in these classifications are in fact professionals, that they come in frequent contact with the professioqls within the unit, and that they are recruited through the same personnel office as are the included professionals. Moreover, these excluded employees perform none of the functions performed by the general duty registered nurses and do not share common supervision with them. Accordingly, the inclusion of these three classifications by no means is in derogation of considerations of community of interest. Furthermore, substantial considerations of policy compel the inclusion of these three classifications within the overall professional unit. As noted above, the existing unit of registered nurses was established by voluntary recognition and the union currently representing these nurses does not now seek to add the three classifications to that unit. Similarly, the I'etitioner has specifically sought the exclusion of fuch employees, thereby expressing no interest whatsoever in representing them. By declining to ~nclude these classifications within the overall profes- sional unit, the majority now leaves the nursing school instructors, the assistant instructors, and the student health nurse as a residual group of employees and, by so doing, has created the very situation which confronted the Board in Levine Hospital of Hayward, Inc., 219 NLRB 327 (1975). In that former case, the Board held that, in situations where a group of employees have been excluded from a unit without the benefit of our guidelines for appropriate units in the health care industry, the Board would not consider itself bound by its general residual unit doctrine, nor would it feel constrained to offer the excluded group all the options normally available to a true residual unit. In Levine, all nonprofessional employees were represented except for seven employ- ees who were sought to be represented by a nonincumbent union as a separate residual unit. The Board concluded that those seven employees should properly be included in the already existing unit, either by means of a petition seeking to represent the entire unit, including the seven employees in issue, or by a petition filed by the incumbent to add them to the existing unit. In the present case, my colleagues have left the nursing school instructors, the assistant instructors, and the student health nurse residual to both the general duty nursing unit and the professional unit. Thus, assuming that the Board continues to adhere to Levine, it would not entertain a petition by a nonincumbent union seeking to represent the residu- al employees as a separate unit, but rather would require that the incumbent union, which already represents the general duty nurses, file a petition seeking to add these classifications to its existing unit. Given the fact that the incumbent union here does not now seek to add these employees to the existing unit of general duty nurses, and given the Board's exclusion of such employees from the overall professional unit, my colleagues here have with virtual certainty deprived the employees in the three excluded classifications of any opportunity in the future to be represented for the purposes of collective bargaining. Unlike the situation in Levine, we now have the opportunity, by including the three classifications in the overall professional unit, to prevent the creation of an unrepresented residual group. In my view, not only should the possibility of Levine-type situations "' '!he Reg~onal Director included within the proiessional unit eight instructors, assisrant instructors, and the student health nurse, inlrr a!!a, . : m\lcrcd nurse anesthetists whom the Petitloner specifically sought to perfom none of the functions periormed by the general duty nurses and do 8 . I I ~ d c ~lrhough no issue has been raised on review with respect to the not share with them. 8 I U I I I ~ I I ~ I S . it is significant that, like these anesthetists, the nursing school 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be foreseen and prevented whenever possible, but the fullest freedom in exercising the rights guaran- such situations certainly should not be created, as teed by the Act, I would include the nursing school here, by a unit determination of the Board's own instructors, the assistant instructors, and the student making. health nurse within the overall unit of professional For the foregoing reasons, and particularly mindful Accordingly, I dissent. of the congressional mandate to assure employees