Bay St. Joseph Care Center

BAY ST. JOSEPH CARE CENTER , . 1411 Health-Care Enterprises of America, Inc." d/b/a Bay St. Joseph Care Center and United Steelwork- ers of America, AFL-CIO-CLC, Petitioner. Case 15-RC-7094 16 August 1985 DECISION ON REVIEW, ORDER, AND DIRECTION OF ELECTION By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 31 August 19841 the Regional Director for Region 15-issued a Decision and Direction of Elec- tion in a unit consisting of the -Employer's house- keeping, dietary, and laundry employees at its Port St. Joe, Florida skilled nursing facility, but exclud- ing nurses aides and orderlies whom the Petitioner had sought to include.2 The Petitioner's request for review was granted by the Board by mailgram of 26 September, the election was conducted in the smaller unit on 27 September, nurses aides and or- derlies were permitted to cast challenged ballots, and the ballots were impounded.3 No briefs,were filed on review. - The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case with respect to the issue under review, and concludes that the Regional Director inappro- priately applied the "disparity-of-interests" stand- ard adopted in St. Francis Hospital4 -to the facts of this case. The Petitioner sought to represent a service and maintenance ' unit. No party contended that the unit should be larger and, in fact, the parties stipulated to exclude all of the Employer's other employees from the unit. However, the Employer urged the exclusion of its nurses aides and orderlies (herein- after nursing assistants) on the basis of their alleg- edly disparate interests. The Regional Director, agreeing with the Employer, found that while the approximately 39 nursing assistants share a number of terms and conditions of employment in common with the other employees sought by' the Petition- er,5 their primary responsibility is direct patient i All dates are 1984 unless otherwise noted 2 Petitioner originally also sought to include the one maintenance em- ployee at the facility, however, the Regional Director excluded him as a statutory supervisor The parties stipulated that the remaining categories of employees (registered nurses, licensed practical nurses, activities direc- tor, social worker, and office clericals) should be excluded from any unit found appropriate 3 Member Hunter, dissenting in part, would have stayed the election 4 271 NLRB 948 (1984) (Member Dennis further concurring, former Member Zimmerman dissenting) . 5 All of the employees sought wear uniforms, are hourly paid, punch a timeclock, receive comparable salaries and increases on a set schedule which is applicable to all, receive identical benefits, and are subject to the care. Moreover, while these nursing assistants have not been required to possess any particular educa- tion or ' work experience before being hiredi the State of Florida now requires that all individuals employed as nursing assistants after July- 1983 be state certified, -enrolled in a nursing assistant course, or have agreed to enroll by 30 September. These' nursing assistants also; participate in monthly- training or in-service programs, are scheduled -on one of three daily shifts, and often have their meal periods and breaktimes regulated according-to pa- tient needs. - The Regional Director found, on the other hand, that the- approximately 20 housekeeping, dietary, and laundry employees are service employees who provide predominantly indirect patient care, work one of two shifts daily, and cannot be cross-as- signed to work as nursing assistants because of Federal infection control regulations and the dan- gers of possible cross-contamination. The Regional Director concluded that the simi- larities shown between the nursing assistants and the other employees sought by-the Petitioner were not such as to warrant their inclusion in the unit when measured against disparities between the clas- sifications, citing the standard set forth in St. _Fr`an- cis, supra. . In St. Francis, the Board stated that "the phrase `disparity-of-interest' properly emphasizes that more is required to justify 'a separate unit - in a health care institution than in a traditional or com- mercial facility. That is to say, the appropriateness of the petitioned-for units is judged in terms of normal criteria (citations omitted), but sharper than usual . differences (or `disparities')- between the wages, hours, and, working conditions, etc., of the requested employees and those in the overall pro- fessional or nonprofessional unit must be estab- lished to grant the unit."6 It was anticipated and intended that this standard would be applied to jus- tify the separate unit, but that the "sharper than usual differences" that must be shown would result in fewer and larger units in' this industry, in con- formity with the congressional admonition against unit proliferation or fragmentation.? In the instant case, however, application of the standard to justi- fy the unit sought was unnecessary since, as indi- cated, the parties stipulated to exclude all other same rules and regulations as set out in the Employer's policy handbook including vacations, work absences, discipline, and termination B 271 NLRB 948, 953 7 S Rep 93-766, 93d Cong, 2d Sess 5 (1974), reprinted in "Legisla- tive History of the Coverage of Nonprofit Hospitals Under the National Labor Relations Act, 1974" at 12, H Rep 93-1051, 93d Cong , 2d Sess 6-7 (1974), id at 274-275 275 NLRB No. 194 '1412 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD employees.8 Even in non-health care facilities, -the Board has recognized that disparities among =classi- fications within a, unit . are generally not sufficient to render-an otherwise. appropriate-unit inappropri- afe.9 Here, in view of".the•parties'-agreement to,ex- clude'' all other, eemployees;, the unit sought-by the Petitioner was clearly. an appropriate one. - Even had the Regional Director 'been correct in applying the "disparity-of-interests" test to classifi- cations within the unit, the Regional, Director -uti- lized a distinction that has long been rejected -by the Board. As early as 1975, in a lead case follow- ing passage of the • health care amendments, the Board unanimously -rejected the concept of direct versus indirect patient care -as a -basis for making unit determinations in the health care industry.10 For the reasons set forth above, therefore, we re- verse the Regional Director's decision and find 'that the appropriate unit is as -follows: - - All full-time, regular part-time and probation- ary employees including nurses . aides, order- lies, housekeeping, dietary and laundry em- ployees employed by Employer at its facility in Port St. Joe, Florida; excluding casual em- ployees, registered nurses, licensed practical nurses, social worker, activities director, office clerical employees and supervisors as defined in the Act. We find that it is necessary to set-aside the elec- tion held on 27.September even though the nursing assistants whom we now include in the bargaining unit were allowed to cast challenged ballots. The parties were informed by- the Executive Secretary 8 The Board traditionally has given'effect to stipulations designating unit composition in the health care -industry so long as such stipulations do not contravene the provisions or purposes of-the Act See Otis Hospi- tal, 219 NLRB 164 (1975) - 9 See Airco, Inc, 273 NLRB 348 (1984) 10 -Mount Airy Psychiatric Center, 217 NLRB 802 (1975) that -the Petitioner's request for review-was being granted on 26 September, the day before the sched- uled election. We have been administratively ad- vised that the preelection conference was held at approximately 4 p.m. that day, at which time a cur- rent payroll list was provided by_the Employer. It was agreed' that an annoucement that, the nursing assistants would be permitted -to "vote" 'challenged ballots would be made. prior to the morning and afternoon-voting sessions; however,-the Employer expressed concern about notice to those employees who worked the late shift. Further, it appears that only 14 nursing assistants voted in- the election, al- though 30 employees were in-these positions at the - time of the election. In these circumstances, and as the election notice actually posted indicated that these employees were ineligible to vote per the Re- gional Director's exclusion of their job categories from the unit, we-are unwilling'to presume, as does our dissenting colleague, that-over one-half of the nursing assistants eligible to-vote under- the, chal- lenged procedure did not do so merely because of indifference or neglect:11 Accordingly, we shall order that the election conducted on 27 September 1984 be vacated and shall direct a new election be held in the unit found appropriate. ORDER The election conducted on 27 September 1984 is vacated. - ' ' [Direction of Election omitted from publication.] 11 Member Dennis adheres to the well-established principle that "where adequate opportunity to participate in the balloting is provided all those eligible to vote, the decision of the majority actually voting is binding on all The indifference or neglect of those failing to exercise the right given therri by law should not be permitted to invalidate an'other- wise properly conducted election " S- W Evans & Son, 75 NLRB 811, 813 (1948) Absent record evidence revealing deficiencies in the election process, Member Dennis would not order a new election, but rather would direct the Regional Director to open and count the impounded ballots c