Child's Hospital

National Labor Relations Board - Board Decisions

Mar 4, 1993

310 N.L.R.B. 560 (N.L.R.B. 1993)

560
310 NLRB No. 87
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only issues raised in the request for review were whether the
Regional Director erred in finding appropriate a unit consisting of
all registered nurses employed by the Employer; whether the Re-
gional Director erred in excluding the director of quality/risk man-
agement from the unit; and whether the Regional Director erred by
not directing a new election despite the employee turnover and pas-
sage of time.
The Child’s Hospital, Samaritan Service Corp., and
Child’s Nursing Home Company, Inc. a/k/a
Child’s Hospital, Inc. and New York State
Nurses Association, Petitioner. Case 3–RC–9734
March 4, 1993
ORDER DENYING REVIEW
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election (pertinent portions are attached). The
request for review is denied as it raises no substantial
issues warranting review.1
APPENDIX
DECISION AND DIRECTION OF ELECTION
The Employer’s name appears as corrected at the hearing.
The parties have stipulated, for the purposes of this pro-
ceeding, that the employing entity (the Employer) consists of
The Child’s Hospital, a not-for-profit surgical care center,
providing both inpatient and ambulatory services; Child’s
Nursing Home Company, Inc., a 120-bed residential nursing
home attached to the surgical care center; and Samaritan
Service Corp. (Samaritan), which provides shared services,
including finance, payroll, purchasing, data processing, secu-
rity, admissions, and medical records, to the hospital and the
nursing home. The Employer, which is located at 25 Hackett
Blvd., Albany, New York, is incorporated and licensed under
the laws of the State of New York. During the past calendar
year, the Employer received gross revenues in excess of
$500,000 and purchased and received goods and services in
excess of $50,000 from outside the State of New York.
The Petitioner seeks to represent a unit consisting of all
registered nurses employed at the hospital and nursing home;
there are presently no registered nurses employed by Samari-
tan. The Employer maintains that the only appropriate unit
is one consisting of all professional employees. In this re-
gard, the Employer, contrary to the Petitioner, asserts that it
is not an ‘‘acute care hospital’’ within the coverage of the
Board’s Final Rule on Collective-Bargaining Units in the
Health Care Industry, 29 CFR 103, 54 Fed.Reg. No. 76, 284
NLRB 1580 (1989) (the Rule). In addition, the Employer as-
serts that even if it meets the definition of ‘‘acute care hos-
pital,’’ nevertheless there are extraordinary circumstances
present which would render the petitioned-for unit of reg-
istered nurses inappropriate. In this regard, the Rule provides
that, except in extraordinary circumstances and in cir-
cumstances where there are existing nonconforming units,
there shall be eight appropriate units for acute care hospitals,
one of which is a registered nurse unit.
The parties have also stipulated that, in the event a reg-
istered nurse unit is found to be appropriate, the registered
nurses employed by all three components of the Employer
shall be included in the unit. In this regard, Stephen J. Lauko
serves as the chief executive officer of both Samaritan and
the hospital. The employees of all three entities share the
same cafeteria, as well as certain other areas which are com-
mon to all, including corridors, board rooms, kitchen, and
snackbar. The nursing home occupies 43,318 square feet, the
hospital 39,532 square feet, and Samaritan utilizes 15,462
square feet of space within the hospital and the nursing
home. I find that the record contains evidence that the em-
ployees of the three entities share a community of interests
sufficient to approve the parties’ stipulation.
At the hearing, the Employer asserted that it is not an
acute care hospital but is, rather, primarily an ambulatory
surgery outpatient institution. By means of an offer of proof,
the Employer contends that, inasmuch as the outpatient serv-
ices are auxiliary in nature and account for 95 percent of the
hospital’s activity, and given the relationship with the nurs-
ing home, extraordinary circumstances are present which
render the petitioned-for unit of registered nurses inappro-
priate. In this regard, the Employer asserts that the 14 physi-
cian assistants would not be employed if the hospital were
an acute care facility and that they are present only because
of the ambulatory surgical nature of the institution and the
resultant diminished presence of physicians.
The hearing officer rejected the above offer of proof. As
set forth below, I find the hearing officer’s ruling in this re-
gard to be without prejudicial error.
In its posthearing brief, the Employer maintains that the
performance of ambulatory surgery constitutes not only a
predominant, but borders on exclusive activity, and asserts
the Board did not intend such a facility to fall within the def-
inition of an acute care hospital. The Employer also asserts
that, had the hearing officer permitted it to do so, it would
have demonstrated the existence of extraordinary cir-
cumstances, based on the interrelationship among the three
entities, the different nature of nursing care provided by the
hospital, the expanded role of physician’s assistants, and the
centralized labor relations function among the facilities.
The record reveals that the hospital, incorporated in 1927,
has been in existence since the 1800s. The current Hospital
Operating Certificate, issued by the New York State Depart-
ment of Health on February 1, 1990, provides for 20 med-
ical-surgical beds. The certificate provides authority to per-
form ambulatory surgery, social work services, cystoscopy,
and nuclear medicine. The hospital bylaws, which were last
amended on January 22, 1991, provide, ‘‘The general pur-
pose of the corporation shall be to own, operate, maintain,
and manage a hospital under the auspices of the Episcopal
Diocese of Albany, with an emphasis on specialty and ambu-
latory surgery.’’
Testimony presented by the Employer indicates that ap-
proximately 95 percent of the medical services performed by
the hospital is ambulatory and that the same percentage of
hospital revenue is derived from the performance of ambula-
tory surgery in areas such as ophthalmology, ear, nose and
throat, and plastic surgery. The record reveals that, during
561CHILD’S HOSPITAL
the 1-year period ending May 1991, the monthly number of
patient days (number of patients multiplied by days of stay)
for inpatients of the hospital has averaged 40 per month,
with 48 surgeries performed on inpatients. The average
length of stay for hospital patients is 2.3 days.
On October 10, 1990, the hospital filed a proposal with the
New York State Department of Health, Office of Health Sys-
tems Management, to expand its operating room capacity
from six to eight operating rooms. On November 27, 1989,
the hospital had sought authorization to replace the existing
operating rooms. In support of the application, the hospital
asserted:
[that it] intends to maintain its institutional status as a
hospital to achieve its objective of becoming the Re-
gional Post-Operative Recovery Center for the Capital
District. . . . Given the patient mix and technology re-
quirements, it is imperative that The Child’s Hospital
maintain 20 inpatient beds to support such clinical serv-
ices as Ophthalmology, Urology, Ophthalmology [sic],
Otolaryngology, and Plastic Surgery Services. Whereas
technology advances allow for more cases to be con-
ducted on a ‘‘same-day’’ surgery basis, it is medically
necessary for certain cases to be clinically monitored on
a limited stay basis (not to exceed 5 days).
The application included yearly actual and projected am-
bulatory surgery and short stay volumes. The application fur-
ther notes that the hospital plans to become ‘‘an Ambulatory
Surgery Center and Short Term Stay Care Unit.’’ The expan-
sion and remodeling of ambulatory surgical suites is cur-
rently under construction. In its November 27, 1989 applica-
tion, the hospital estimated that it would have 139.50 full-
time employees in 1992 and that 54.97 full-time employees
(FTE’s) would be encompassed under the heading ‘‘Med-
Surg In-Patients’’ in 1992. The application further provides,
‘‘Medical Surgical inpatients include nursing FTE’s for oper-
ating room, recovery room, and ambulatory surgery.’’
Outpatient revenues continue to constitute the over-
whelming percentage of the hospital’s revenues. In 1990, the
hospital received $469,380 in inpatient revenues and
$12,015,711 in outpatient revenues. In May 1991, the hos-
pital received $67,661 in inpatient revenues and $1,051,151
in outpatient revenue (including extended, i.e., up to 23-hour
stays). By contrast, the 1990 gross revenue of the nursing
home was $6,549,482.
There are currently 42 registered nurses employed at the
hospital and 12 registered nurses at the nursing home. The
registered nurses employed at the hospital are classified ac-
cording to the four nursing departments: operating room,
postanesthesia care, ambulatory surgery, and extended care.
At the hearing, the parties stipulated that, in the event a
registered nurse unit is found to be appropriate, four individ-
uals employed at the nursing home who are registered
nurses, but employed in various capacities (resident care co-
ordinator, quality assurance utilization review coordinator,
staff development assistant, and in-service/environmental)
shall be excluded from the unit. The record does not provide
any basis for the parties’ agreement to exclude these posi-
tions from the unit. In view of the lack of record evidence
which would support the parties’ agreement to exclude the
four positions from the unit, as well as certain Board cases
which indicate that such positions might be appropriately in-
cluded within a registered nurse unit, I have determined not
to approve the parties’ stipulation to exclude these positions.
Cf. Long Island College Hospital, 256 NLRB 202, 203 fn.
7 (1981) (parties’ stipulation to exclude certain RN classi-
fications from the unit is supported by record evidence).
Under these circumstances, I shall permit individuals em-
ployed in the four classifications listed above to vote in the
election, subject to challenge.
The parties have stipulated that, if a registered nurse unit
is found to be appropriate, Deborah Branigan is employed as
a casual employee and is not working as a regular part-time
employee, and thus shall be excluded from the unit. In addi-
tion, the parties stipulated that Odette Daskalakis shall be in-
cluded as registered nurse due to the extent of unit work she
performs. Based on the parties’ stipulations, supported by
record evidence which is in accord with the stipulations, I
shall exclude from the unit Deborah Branigan as a casual
employee and include Odette Daskalakis on the basis of the
extent to which she performs unit work.
The Employer, in asserting that an overall professional
unit is the only appropriate unit, would include the 14 hos-
pital physician assistants, a hospital dietician, 2 Samaritan
social workers, 1 Samaritan pharmacist, and 4 Samaritan
medical technologists. The Employer asserts that these indi-
viduals’ duties are defined by the ambulatory care nature of
the hospital as well as the performance of duties relating to
the nursing home. Thus, the Employer asserts that there is
a ‘‘honeycombing’’ of services between the hospital and
nursing home.
Section 103.30(f)(2) of the Rule defines an acute care hos-
pital as follows:
(2) ‘‘Acute care hospital’’ is defined as either a short
term care hospital in which the average length of pa-
tient stay is less than thirty days, or a short term care
hospital in which over 50% of all patients are admitted
to units where the average length of stay is less than
thirty days. Average length of stay shall be determined
by reference to the most recent twelve month period
preceding receipt of a representation petition for which
data is readily available. The term ‘‘acute care hos-
pital’’ shall include those hospitals operating as acute
care facilities even if those hospitals provide such serv-
ices as, for example, long term care, outpatient care,
psychiatric care, or rehabilitative care, but shall exclude
facilities that are primarily nursing homes, primarily
psychiatric hospitals, or primarily rehabilitation hos-
pitals. Where, after issuance of a subpoena, an em-
ployer does not produce records sufficient for the Board
to determine the facts, the Board may presume the em-
ployer is an acute care hospital.
The Board, at Section 103.30(f)(1) of the Rule, adopted
the definition of ‘‘hospital’’ as set forth in the Medicare Act,
42 U.S.C. § 1395x(e), as revised 1988. Under this definition,
hospitals are institutions which are primarily engaged in di-
agnostic, therapeutic, and rehabilitation services to injured,
disabled, or sick inpatients; provide 24-hour nursing service
rendered by or under the supervision of a registered nurse;
have utilization review and discharge planning procedures;
and are licensed as a hospital by a state or local government.
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board made it clear that the Rule applies to all acute
care hospitals, irrespective of size or number of beds. 284
NLRB 1566–1567. Furthermore, the Board, in devising the
Rules, specifically considered and rejected the Employer’s
argument here that, inasmuch as it is primarily an outpatient,
rather than an acute care facility, and is an ‘‘amalgam type
of institution,’’ which includes a nursing home and support
service provider, it should be excluded from coverage of the
Rule. The Board, in rejecting such a claim, noted that
‘‘[m]any of today’s hospitals have a number of other types
of units, such as outpatient clinics, nursing care units, etc.,
and the Board did not intend to exclude such hospitals from
coverage of the rule unless any one of the excluded ancillary
services predominated.’’ In addition, the Board noted that it
did not intend ‘‘to permit a hospital to argue successfully
that since the number of its outpatient visitors exceeded the
number of its over-night (acute care) patients, it was not an
acute care hospital, and therefore not subject to the rules.’’
284 NLRB 1591. In order to prevent unintended litigation
over such a claim, the Board deleted the initial reference to
‘‘the primary purpose of the hospital’’ from the final Rule.
With regard to the ‘‘extraordinary circumstances’’ excep-
tion to the Rule, the Board indicated that it is to be construed
narrowly. In this regard, considerations such as the size of
the institution, the variety of services (including the range of
outpatient services), different staffing patterns, and the de-
gree of work contacts between groups of employees, do not
fall within the exception. The party seeking to demonstrate
extraordinary circumstances has the ‘‘heavy burden’’ of
showing that its arguments are substantially different from
those considered by the Board during the rulemaking proc-
ess. 284 NLRB 1573–1574.
The Board noted that registered nurses are unique in that
their profession requires continuous patient interaction and
that all acute care facilities have an organized department of
nursing. 284 NLRB 1544. While it found variances in the
levels of patient care acuity among hospitals, the Board
found that the nature of registered nurses’ duties were not
changed merely because they work on teams. 284 NLRB
1569. Thus, assuming that the physician’s assistants are pro-
fessional employees, it does not appear that their presence
has resulted in any change in the duties of the registered
nurses sought.
Based on the foregoing, and the record as a whole, I find
that the Employer is an acute care hospital within the cov-
erage of the Final Rule; accordingly, the petitioned-for unit
of registered nurses is appropriate for bargaining. In this re-
gard, I note that the Board has rejected the number of inpa-
tient beds as a basis for excluding an otherwise covered insti-
tution. In addition, the Board expressly stated that it did not
intend to exclude from coverage acute care hospitals merely
because the number of outpatient patients exceeds the num-
ber of overnight, i.e., acute care, clients.
In addition, in finding that the Employer clearly meets the
literal definition of an acute care hospital, I note that the av-
erage length of stay of inpatients is less than 30 days, the
hospital is organized into 4 nursing departments; the hospital
has 20 inpatient beds, it performs more than 200 surgeries
per year on inpatients, and it performs a wide range of sur-
gical procedures in areas such as plastic surgery, gynecology,
ophthalmology, urology, ear, nose and throat, and general
surgery. I also note that the hospital’s bylaws expressly de-
fine its purpose as a ‘‘hospital . . . with an emphasis on spe-
cialty and ambulatory surgery.’’ Similarly, the hospital’s stat-
ed intent of becoming a ‘‘short-term stay care unit’’ is con-
sistent with the definition of an acute care hospital. Finally,
I note that the Board’s definition limits the exclusions to
those institutions which are primarily nursing homes, psy-
chiatric hospitals, or rehabilitation hospitals. In this regard, it
is apparent that the Board deliberately declined to exclude
from coverage acute care hospitals which are primarily de-
voted to outpatient care, since the Board specifically referred
to outpatient care in the same sentence in which it thereafter
enumerated the exclusions. While the Employer asserts in its
posthearing brief that the performance of ambulatory services
borders on exclusivity, I find that the nature and extent of
inpatient, i.e., acute care given is clearly sufficient to require
coverage as an acute care hospital.
I also conclude, contrary to the Employer’s contention,
that there are no extraordinary circumstances warranting a
departure from the Rule’s coverage. Thus, the Board clearly
states that this exception is to be construed narrowly and that
the Employer bears a ‘‘heavy burden’’ to show that its argu-
ments are substantially different from those considered and
rejected by the Board. I find that the Employer has not met
that burden. Thus, among those considerations rejected by
the Board are the size of the institution, the range of out-
patient services provided, different staffing patterns, and the
extent of interaction of registered nurses with other profes-
sional employees. I find that the asserted expanded role of
physician’s assistants does not constitute an extraordinary
circumstance. The Employer also asserts that it is a unique
institution in view of the interrelationship of operations of
the hospital, nursing home, and Samaritan , including those
relating to labor relations. It does not appear that this con-
stitutes an extraordinary circumstance, since the Board ex-
pressly included within coverage those acute care hospitals
which provide nonacute care services; and the nature of the
services performed by Samaritan do not appear to have any
material effect on the nature of duties performed by reg-
istered nurses. Finally, while the parties have stipulated that,
if a registered nurse unit is found to be appropriate, such unit
shall include those employed at the nursing home, registered
nurses in the nursing home constitute less than one-fourth of
the overall unit.
The Employer also maintains that the nature of nursing
care provided by the hospital’s registered nurses is different
from that provided in acute care hospitals due to the pre-
domination of outpatients. I do not find this to constitute an
extraordinary circumstance. Thus, as noted earlier, the clearly
inpatient care services are not insubstantial, and the level and
nature of nursing care required for such inpatients does not
appear to deviate from the norm. Moreover, with regard to
the ambulatory surgery function of the hospital, while they
may not literally meet the definition of ‘‘acute care,’’ the
outpatient operations are consistent with the hospital’s acute
care function in light of the nature and extent of surgical pro-
cedures performed, the necessity of substantial numbers of
outpatients having extended stays, and the hospital’s ac-
knowledged need to have certain outpatient cases monitored
on a ‘‘limited stay’’ basis. This goes well beyond the func-
tions of a typical hospital outpatient clinic.
563CHILD’S HOSPITAL
In view of the foregoing, I shall direct an election in the
unit sought by the Petitioner. There are approximately 54
employees in the unit found appropriate.