North Arundel Hospital Association, Inc.

NORTH ARUNDEL HOSPITAL ASSN North Arundel Hospital Association, Inc. and Mary- land Nurses Association, Petitioner. Case 5- RC-12187 16 April 1986 DECISION ON REVIEW, ORDER, AND DIRECTION OF ELECTION BY CHAIRMAN DOTSON, AND MEMBERS DENNIS, JOHANSEN, AND BABSON On 10 August 1984' the Regional Director for Region 5 issued a Decision, Order and Direction of Election in the above-entitled proceeding in which, inter alia, he found appropriate a unit of all regis- tered nurses employed by the Employer at its Glen Burnie, Maryland facility.2 Thereafter, on 13 August the Board issued its decision in St. Francis Hospital (St. Francis II).3 On 27 August the Em- ployer filed with the Regional Director a request for reconsideration of the Decision and Direction of Election in light of St. Francis II, which the Re- gional Director granted. Subsequently, the parties waived the opportunity to reopen the record, and submitted supplemental briefs. The Regional Direc- tor reconsidered all issues presented in this case and on 13 December issued a Decision, Order, and Direction of Election revoking his previous deci- sion, but again finding, inter alia, that a unit limited to all of the Employer's registered nurses was ap- propriate. In so doing, the Regional Director re- jected the Employer's contention that the smallest appropriate unit must consist of all its professional employees, including the registered nurses. In accordance with Section 102.67 of the Board's Rules and Regulations, the Employer filed a timely request for review of the Regional Director's deci- sion. The Board, by mailgram dated 16 January 1985, granted the request for review. Pursuant to the Board's procedures, the election was conducted as scheduled on 16 and 17 January 1985 and the ballots were impounded pending the Board's deci- sion on review. The Board has considered the entire record in this case, including the supplemental briefs, with respect to the issue under review and concludes, in agreement with the Employer, that a separate unit of registered nurses is inappropriate and that an all professional unit including the registered nurses is the smallest appropriate unit. ' All dates are 1984 unless otherwise noted 2 The unit found appropriate by the Regional Director included all registered nurses and nurse graduates (not yet certified by the State), in- cluding the infection control practitioner, employee health nurses, utiliza- tion review coordinator, resource nurses, and staff development instruc- tors 271 NLRB 948 (1984) (Member Dennis further concurring, former Member Zimmerman dissenting) 311 In St. Francis II, the Board announced that it would use the "disparity-of-interests" standard to determine the appropriateness of a petitioned-for unit in a health care institution, and that while such appropriateness would be "judged in terms of normal criteria . . . sharper than usual differences (or `disparities') between the wages, hours, and working conditions, etc., of the requested employ- ees and those in an overall professional or nonpro- fessional unit must be established to grant the unit."4 In the instant case, the Regional Director applied the "disparity-of-interests" test and found that a strong disparity exists between the registered nurses and all other professional employees, and that the registered nurses' interests in collective bargaining are distinctly different from those of the other professional employees. Contrary to the Regional Director, we find that the evidence does not establish that there are "sharper than usual differences" between the terms and conditions of employment of the petitioned-for registered nurses and those of the Employer's other professional employees which would warrant the establishment of a separate unit of registered nurses. Thus, as found by the Regional Director, all professional employees are subject to many common personnel policies and procedures includ- ing those relating to employee badges; meal and rest periods; employee classifications; probationary periods; transfers; code of conduct; performance appraisals; absenteeism; tardiness; personnel rec- ords; general wage increases; shift differentials; overtime pay; vacation, sick, and personal time; holidays; leave of absence; funeral, jury duty, and military leave; employee benefits; blood program; employee benefit plans; educational assistance; dis- ciplinary actions; employee parking; and check cashing privileges. Although it is true that the registered nurses have a promotion salary program policy unique to the nursing department, the policy also is applied to nonprofessionals in that department. Similarly, although the registered nurses are the only profes- sional employees who receive premium pay for weekend work and for work in six specialized areas, nonprofessional employees in the nursing de- partment also receive such premium pay. The Al- ternate Salary Compensation Program, which pre- viously was available to any employee in the nurs- ing department who worked in critical care or spe- cialty areas, was discontinued in January 1984 except for employees who had previously elected 4 271 NLRB at 953 279 NLRB No. 48 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that program and who were allowed the option of remaining in it. Although the registered nurses are the only pro- fessional employees administratively assigned to the nursing department, they actually work in a variety of different areas and often come into contact with other professional employees, many of whom also work in departments that operate on a 24-hour basis. In addition, the Employer's team concept of health care delivery results in direct and frequent interaction between registered nurses and other professional employees regarding patients' care and treatment; service on various hospital committees for specialized areas also brings registered nurses and other professional employees into regular con- tact. Moreover, although the Regional Director found little evidence of interchange of duties or functions between registered nurses and other pro- fessionals, it is clear that this lack of interchange is inherent to the health care industry because all the professional employees-including registered nurses-have received specialized education and training in their own fields to make job interchange impossible, or even illegal, when state certification or licensure is required.5 See NLRB v. St. Francis Hospital of Lynwood, 601 F.2d 404, 419 (9th Cir. 1979). Some important factors the Regional Director cited to support his unit finding-distinct job re- sponsibilities and organization along departmental lines particularly-equally are applicable to the Employer's other professional employees. Carried to its logical extreme, the Regional Director's ra- tionale could result in separate bargaining units for professionals in the pharmacy, physical therapy, radiology/CT/ nuclear medicine, laboratory/- pathology, patient services, respiratory/pulmonary, and social work departments-a result plainly at odds with the congressional directive against unit proliferation." St. Francis Hospital of Lynwood, supra at 418. 5 Member Johansen does not agree with this inverted logic If jobs are sufficiently distinct that their occupants are incapable of interchanging, that is a factor reflecting lack of community of interest State prohibition of such interchange, far from vitiating the lack of a community of interest in this respect, underscores it 6 At S Rep 93-766, 93d Cong, 2d Sess 5 (1974), reprinted in "Legis- lative History of the Coverage of Nonprofit Hospitals Under the Nation- Based on all the above, we conclude that it has not been established that sharper than usual differ- ences exist between the petitioned-for registered nurses and the Employer's other professional em- ployees.7 Further, the foregoing evidence indicates that all the Employer's professional employees share common policies and procedures and a suffi- cient degree of interaction and contact to warrant the finding that the smallest appropriate unit for bargaining must be an overall professional unit. See Keokuk Area Hospital;" St. Francis II, supra.9 As the unit found appropriate herein is larger than that found appropriate by the Regional Direc- tor, the election conducted on 16-17 January 1985 must be vacated. However, as the Petitioner has in- dicated a willingness to proceed to an election in the broader unit, we shall direct that the election be held in the following unit:10 All professional employees employed by the Employer at its Glen Burnie, Maryland facili- ty, including registered nurses and nurse grad- uates; excluding all other employees, guards and supervisors as defined in the Act. ORDER The election conducted on 16 and 17 January 1985 is vacated. [Direction of Election omitted from publication.] al Labor Relations Act, 1974" at 12, H Rep 93-1501, 93d Cong, 2d Sess 6-7 (1974), id at 274-275 ' The Regional Director based his contrary conclusion in part on the registered nurses' direct patient care responsibilities As we recently ob- served, however, the concept of direct versus indirect patient care has long been rejected as a basis for making unit determinations in the health care industry See Bay St. Joseph Care Center, 275 NLRB 1411 (1985) 278 NLRB 242 (1986) The separate registered nurses' unit the Regional Director found ap- propriate would have consisted of about 282 of the Employer's approxi- mately 330 professional employees , thus leaving only some 50 profession- al employees excluded from that unit. This result would leave a relatively small proportion , about 15 percent, of the Employer's professionals to be represented in a second professional employee unit , if at all 10 As the Petitioner has indicated a willingness to represent the unit found appropriate herein , in accordance with our usual practice we shall provide the Petitioner a reasonable time, not to exceed 10 days, from the date of this Decision on Review, Order, and Direction of Election in which to demonstrate the requisite showing of interest among the em- ployees whom we find constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act