Keokuk Area Hospital

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keokuk Area Hospital and Iowa Nurses' Associa- tion, Petitioner. Case 33-RC-2623 27 January 1986 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS, JOHANSEN, AND BABSON On 12 June 1980 the Regional Director for Region 33 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found appropriate a unit of all registered nurses employed by the Employer at its Keokuk, Mon- trose, and Farmington, Iowa facilities. Thereafter, the Board granted the Employer's request for review and remanded the case to the Regional di- rector for further consideration in light of Newton- Wellesley Hospital, 250 NLRB 409 (1980). On 2 September 1980 the Regional Director issued a Supplemental Decision and Order finding that the unit defined in the Decision and Direction of Elec- tion was appropriate and directing the counting of impounded ballots. The Board denied the Employ- er's request for review of the Supplemental Deci- sion and Order. The tally of ballots revealed that the challenged ballots were sufficient in number to affect the results of the election. On 17 December 1980 the Acting Regional Director issued his Second Supplemental Decision on Challenged Bal- lots and Certification of Representative. The Board denied the Employer's request for review of that decision. In April 1981, an unfair labor practice complaint in Case 33-CA-5360 was issued against the Em- ployer, alleging that the Employer was refusing to bargain with the Petitioner as the certified repre- sentative of its employees. In its answer to the complaint, the Employer admitted that it refused to recognize or bargain with the Petitioner, but con- tended that the Petitioner's certification was im- proper because the certified unit was inappropriate. Thereafter, the General Counsel filed a Motion for Summary Judgment and the Board issued a Notice to Show Cause why summary judgment should not be granted. On 27 August 1984 the Board issued an order denying the Motion for Summary Judgment and remanding the case for further consideration con- sistent with the Board's then-recent decision in St. Francis Hospital (St. Francis II), 271 NLRB 948 (1984). Thereafter, the Petitioner filed a petition for reconsideration, which the Board denied by Order dated 26 October 1984. On 2 November 1984 the Regional Director issued an order reopening the record in the instant representation case and directing that a hearing be conducted for the limited purpose of receiving evi- dence to determine whether, in view of the Board's decision in St. Francis II, the unit of registered nurses was appropriate. Thereafter, on 11 January 1985, the Regional Director issued the attached Third Supplemental Decision, Order Revoking Certification of Representative and Direction of Election, in which he found appropriate an all-pro- fessional unit, including the 78 registered nurses, 12 medical technologists, and I pharmacist. In so doing, the Regional Director rejected the Petition- er's contention that a unit limited to registered nurses was an appropriate unit for bargaining. In accordance with Section 102.67 of the Board's Rules and Regulations, the Petitioner filed a timely request for review of the Regional Director's deci- sion. The Board, by mailgram dated 7 February 1985, granted the request for review. Pursuant to the Board's procedures, the election was conducted as scheduled on 7 February 1985, and the ballots were impounded pending the Board's decision on review. The Board has reviewed the entire record in this case and has decided to affirm the Regional Direc- tor's Third Supplemental Decision.' We conclude, for the reasons stated by the Re- gional Director, that a separate registered nurses' unit is inappropriate in this case and that an all pro- fessional unit including registered nurses is the smallest appropriate unit. The Regional Director applied the "disparity-of- interests" test as defined in St. Francis II. He con- cluded that the evidence did not establish "sharper than usual" differences or disparities between the terms and conditions of employment of registered nurses and those of other professional employees, notwithstanding the pharmacists' and medical tech- nologists' somewhat greater educational and experi- ence requirements, and corresponding higher pay. The Regional Director found that: [P]etitioner had proffered no evidence . . . to show an Employer or industry practice of hos- pital administration dealing with registered nurses as a group separately from its dealings with other professional employees. In addition, i The Petitioner's objection to the Regional Director's reopening of the hearing is without merit. This issue was previously argued by the Pe- titioner in its petition for reconsideration and was ruled upon by the Board. We also reject Petitioner's further argument that the Regional Di- rector erred in issuing an order in this case rather than forwarding his findings of fact and recommendations to the Board for its consideration in Case 33-CA-5360 This issue also was ruled upon in the order denying the petition for reconsideration Moreover, the same issue was before the United States Court of Appeals for the District of Columbia Circuit, and the court ruled in the Board's favor See Iowa Nurses Association v. NLRB, No 84-1563 (D.C Cir, Mar 20, 1985) (per cunam) Finally, the Petitioner's request that the Board's decision in St Francis II, supra, be reconsidered is denied 278 NLRB No. 33 KEOKUK AREA HOSPITAL the supplemented record shows substantial'evi- dence of common policies and procedures af- fecting all professional employees, and a suffi- cient degree of functional integration, overlap of -function and regular contact among profes- sional employees to -warrant including all pro- fessional employees in a single unit. The record supports the Regional Director's findings. All professional employees are subject to the same personnel policies and procedures (e.g., procedures for discipline, grievance processing, and hiring). There is also, as found by the Regional Di- rector, regular contact among the professional em- ployees. Medical technologists and, staff nurses have daily contact on the patient care floors. More- over, as noted by the Regional" Director, the pro- fessional employees are 'functionally integrated. Medical technologists, staff nurses, and the pharma- cist are in regular communication with regard to certain procedures (e.g., therapeutic drug monitor- ing and hyperalimentation) and all respond to "code blue" or cardiac arrest situations. In addi- tion, staff nurses, medical technologists, and the pharmacist or pharmacy nurse, together with per- sonnel from other departments as appropriate in in- dividual cases, participate in patient conferences. Finally, there is some overlap of function among professional employees. For example, pharmacy nurses work under the direction of, and perform many of the same tasks as, the pharmacist. Based on the above, we agree with the Regional Director that it has not been established that sharp- er than usual differences exist between the peti- tioned-for registered nurses and the Employer's other professional employees. Moreover, the fore- going' evidence indicates that the professionals share common policies and procedures and a suffi- cient degree of functional integration, contact, and overlap offuriction which warrant'fmding that the smallest appropriate unit for bargaining is the all- professional- unit. St. Francis II, supra. The election was held 7 February 1985 and the ballots were impounded. Having affirmed the Re- gional Director's unit determination, we shall direct the Regional Director to open and count the ballots and issue the appropriate certification. - ORDER The Regional Director for Region 33 is directed to open and count the ballots cast ^ in the 7 Febru- ary 1985 election and issue the appropriate certifi- cation. APPENDIX 243 Third Supplemental Decision, Order Revoking Certification of Representative and Direction of Election. Following the filing of the petition in the above-cap- tioned case on May 12, 1980, a hearing was held on May 28 and 29, 1980. Thereafter, the undersigned issued a De- cision and Direction of Election on June 12, 1980, direct- ing that an election be held in the following unit: All full-time and regular part-time registered nurses, including Relief Supervisors, Part-time Relief- Su- pervisors, Assistant Head ` Nurses, Clinic Nurses, Pharmacy Nurses, Infection Control Nurse, Patient Education Coordinator, Utilization Review Coordi- nator and Social Service Director employed by the Employer at its Keokuk, Montrose and Farminton, Iowa facilities; but excluding all technical employ- ees, business and clerical employees, service and maintenance employees, and all other professional employees, guards and supervisors as defined in the Act. On July 9, 1980, the Board granted the Employer's Re- quest for Review and remanded the matter to the under- signed for further consideration in light of the Board's Decision in Newton-Wellesley Hospital, 250 NLRB 409 (1980). Pursuant to the remand; further hearing was held on August 4-7, 1980. On September 2, 1980, the under- signed issued a Supplemental Decision and Order Direct- ing the Counting of Impounded Ballots finding that the unit defined in the above Decision and Direction of Election was appropriate and directing that the ballots cast and impounded at the election held on July 10, 1980, be opened and counted. On October 23, 1980, the Board denied the Employer's Request for Review of the above Supplemental' Decision and Order. On November 7, 1980, the impounded ballots were opened and counted, and the Tally of Ballots issued that date -showed that of the 73 valid ' votes cast, 36 were cast for the Petitioner, 34 were cast against Petitioner, `and 3 were challenged. Inasmuch as challenged ballots were sufficient in number to affect the results of the election, the Acting Regional Director following an investigation on the challenged ballots issued a Second Supplemental Decision on Chal- lenged Ballots and Certification of Representative on De- cember 17, 1980, wherein the challenges to two chal- lenged ballots were sustained and Petitioner was certified as' the exclusive collective bargaining representative for all unit employees. On' February 18, 1981, the Board denied the Employer's Request for Review of the above Second Supplemental Decision on Challenged Ballots and Certification of Representative. Following the filing of a Charge Against Employer in Case 33-CA-5360 on March 27, 1981, and the issuance of Complaint on April 2, 1981, following an investigation of the Charge Against Employer, the Employer admitted in its Answer to the Complaint that it refused to recognize or bargain collec- tively with the Petitioner. Accordingly, Counsel for the General Counsel -filed his Motion for Summary Judg- ment on May 8, 1981. On May 15, 1981, the Board 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued a Notice to Show Cause why General Counsel's Motion for Summary Judgment should not be granted. Thereafter, on August 27, 1984, the Board issued its Order Remanding wherein it denied the General Coun- sel's Motion for Summary Judgment and remanded Case 33-CA-5360 for the undersigned's further consideration consistent with the Decision and Order in St. Francis Hospital, 271 NLRB 948 (1984), including, if necessary, a reopening of the record in the instant representation case. On September 14, 1984, Petitioner filed a Petition for Reconsideration in Case 33 -CA-5360 submitting that the case be decided promptly and expeditiously and that the General Counsel's Motion for Summary Judgment be granted. On October 26, 1984, the Board issued its Order Denying Motion denying Petitioner's Petition for Recon- sideration. After issuance of the Board 's Order Remanding dated August 27, 1984, and after affording the parties an op- portunity to submit their respective positions on whether the record in the instant case should be reopened, I issued on November 2, 1984, an Order Reopening the Record, directing that a hearing be conducted for the limited purpose of receiving evidence to determine whether, in view of the Board's decision in St. Francis II, the unit in which the above election was conducted was appropriate at the time the election was held. On De- cember 12, 1954, a hearing for this purpose .was held before a Hearing Officer of the Board. I At the hearing, the Employer argued in favor of an all-professional unit and took the position that the unit, should include, in addition to registered nurse classifica- tions, the following:2 pharmacists, medical technologists, medical laboratory technicians,3 radiology technologists, physical therapists, and cytotechnologists. The Petition- er's position, stated at the hearing, is that the unit origi- nally found is appropriate for purposes of collective bar- gaining under the standards set forth in St. Francis H. At the time of the election, the Employer employed one non-supervisory pharmacist, twelve medical technolo- gists, two medical laboratory technicians , twelve medical technologists, two medical laboratory technicians, nine radiology technologists, and no physical therapists or cy- totechnologists. - In the September 2, 1980, Supplemental Decision, I found that, in addition to those employees in all classifi- cations then included in the unit, employees in the classi- fications of pharmacists and medical technologists were professional employees. ,In the same decision, I found that the employees in the following classifications were not professional employees : radiology technologists, li- censed practical nurses; certified laboratory assistants; certified laboratory technicians; and medical laboratory - 1 I have carefully considered the record evidence , the parties' respec- tive statements of position therein and the post-hearing brief submitted by the Employer. The Petitioner chose not to remain at the hearing after presenting its position , and not to file a brief 2 The Employer took the position that the position of certified nurse anesthetist should be included in the unit. In the original Decision and Direction of Election, this position was included in the unit although not identified by name in the unit description . There is no dispute that this position is in the unit 3 The Employer apparently inadvertently referred to employees in this classification as medical laboratory technologists technicians. The supplemental record contains no evi- dence to warrant a departure from those determinations. The duties, wages, hours and working conditions of the registered nurses are set forth in the original Deci- sion and Direction of Election, and those of the pharma- cists and medical technologists are set forth in the Sep- tember 2, 1980 Supplemental Decision. These will not be repeated here at length. Inasmuch as there were no phys- ical therapists and cytotechnologists employed at the time of the election, the record, as supplemented, is silent concerning the wages, hours, working conditions and duties of employees in these classifications. Accordingly, no determination can currently be made concerning their status as professional or technical employees. In St. Francis II, the Board announced that in deter- mining whether a petitioned-for unit in a health care in- stitution is an appropriate unit, "normal criteria" (i.e., usual community-of-interest elements) must be examined, "but sharper than usual differences (or `disparities') be- tween the wages, hours and working conditions, etc., of the requested employees and those in an overall profes- sional or nonprofessional unit must be established to grant the unit." Slip op. at p. 15. Accordingly, the in- quiry in the present case must be whether the employees in the unit sought by Petitioner are subject to wages, hours, working conditions, and other terms and condi- tions of employment which are sufficiently disparate from those of other professional employees to warrant a separate unit. The Petitioner urges that the disparities of interest be- tween registered nurses and all other professional em- ployees, noted in the September 2, 1980 Supplemental Decision, are sufficient to warrant the finding that the petitioned-for unit is appropriate. It was noted therein that the vast majority of registered nurses, serving as staff nurses, provided direct patient care around the clock, and incident to these duties, had intermittent con- tact with medical technologists and the pharmacy. It was further noted therein that pharmacists and medical tech- nologists were more highly specialized professionals than registered nurses, their educational and experience re- quirements were more extensive than those of registered nurses, and that their rates of pay were correspondingly higher. In agreement with the Employer, I find that these dis- parities do not meet the Board's more stringent test, re- quiring sharper than usual differences to warrant finding that the petitioned-for unit is appropriate. The Petitioner herein has proffered no additional evidence to demon- strate additional or more striking disparities of interest among these classifications of professional employees. Moreover, the Petitioner had proffered no evidence, and the record contains no evidence, to show an Employer practice or industry practice of hospital administration dealing with registered nurses as a group separately from its dealings with other professional employees. In addi- tion, the supplemented record shows substantial evidence of common policies and procedures affecting all profes- sional employees, and a sufficient degree of functional in- tegration, overlap of function and regular contact among KEOKUK AREA HOSPITAL professional employees to warrant including all profes- sional employees in a single unit. The supplemented record shows that all professional employees are subject to the same personnel policies and procedures, which are generally set forth in the employ- ee handbook. These include: procedures for discipline; grievance processing; cafeteria privileges; hiring and ori- entation procedures; entitlement to tuition reimbursement for professional training courses; and the requirement, as a condition of employment, that each professional em- ployee maintain current registration, certification or li- censing. While some professional employees, such as the utilization review coordinator, pharmacist, pharmacy nurses, infection control nurses and medical technolo- gists, spend little or no time in direct patient care, never- theless all professional employees implement physicians' orders and have a common mission, to provide high quality patient care. The supplemented record shows that contact among the medical technologists and staff nurses occurs daily on the wards. Medical technologists receive assistance from or consult with staff nurses, as the medical technologists perform such function as drawing blood samples, draw- ing arterial blood gases and twenty-four hour in-patient urine monitoring. Moreover, the record shows functional integration among professional employees. Medical tech- nologists, staff nurses, pharmacy nurses and the pharma- cist consult, for example, concerning the procedures for such regular treatments as hype:ralimentation (a proce- dure entailing the administration of nutrients and medica- tion intravenously) and therapeutic drug monitoring. Staff nurses, medical technologists and the pharmacist or pharmacy nurse respond, along with physicians and tech- nical staff, in "code blue" situations, that is, when a pa- tient suffers cardiac arrest. Staff nurses, medical tech- nologists, and the pharmacist or pharmacy nurse, along with personnel from other departments as appropriate in individual cases, participate in patient conferences. Moreover, there is some overlap of function among professional employees. As noted previously, pharmacy nurses work under the direction of and perform many of the same tasks as the pharmacist, are subject to the same departmental supervision as the pharmacist, and spend most of their time in the pharmacy. A similar overlap of function occurs in the position of social service director. This position, included in the 1980 unit description, was 245 then occupied by a registered nurse. The supplemented record shows that the Employer contemplated that this position should be filled by a certified social worker, and that in prior years the. position was in fact filled by a social worker. On the basis of these factors and the record as a whole, I find: 1. The hearing officer's rulings made at the supplemen- tal hearing are free from prejudicial error and are hereby affirmed. 2. A unit consisting only of registered nurses previous- ly found appropriate and currently sought by Petitioner is not an appropriate unit under the standards of St. Francis II. Accordingly, the Certification of Representa- tive issued on December 17, 1980 shall be, and it hereby is, revoked. 3. The following employees4 of the Employer consti- tute a units appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time professional em- ployees, including Pharmacists, Medical Laboratory Technologists, Registered Nurses, Certified Regis- tered Nurse Anesthetists, Relief Supervisors, Part- time Relief Supervisors, Assistant Head Nurse, Pa- tient Education Coordinator, Utilization Review Coordinator and Social Service Director employed by the Employer at its Keokuk Area Hospital facili- ties; but excluding all technical employees, business and clerical employees, service and maintenance employees, and all other employees, guards and su- pervisors as defined in the Act. 4 Inasmuch as no determination has been made concerning the profes- sional or technical status of the physical therapist and cytotechnologist classifications, I shall permit these employees to vote subject to chal- lenge In addition, in the event that either party urges that, because of changed circumstances pertaining to whether an individual is or is not a professional employee within the meaning of the Act, any of the positions currently included in the unit should be excluded, or that any positions previously excluded should be included, employees in such classifications shall be permitted to vote subject to challenged 5 Although the unit found herein is broader than that requested by Pe- titioner, I have administratively determined that the Petitioner had fur- nished a sufficient showing of interest. If the Petitioner does not wish to participate in an election in the unit found appropriate herein, I shall permit it to withdraw its petition without prejudice upon written notice to the undersigned within 10 days from the date of issuance of this Deci- sion.