Grey Nuns of the Sacred Heart

National Labor Relations Board - Board Decisions

Dec 22, 1975

221 N.L.R.B. 1215 (N.L.R.B. 1975)

GREY NUNS OF THE SACRED HEART 1215
Grey Nuns of the Sacred Heart and Alaska Nurses
Association, a Constituent of American Nurses
Association, Petitioner. Case 19-RC-7464
December 22, 1975
DECISION ON REVIEW AND
DIRECTION OF ELECTIONS
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On May 13, 1975, the Regional Director for Region
19 issued a Decision and Order in the above-entitled
proceeding, in which he declined to assert jurisdiction
over the Employer's operations and accordingly
dismissed the petition. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Petitioner filed a timely request for review of the
Regional Director's decision on the ground, inter
alia, that in dismissing the petition he departed from
precedent. The Employer filed opposition to the
request for review.
On July 17, 1975, the Board, by telegraphic order,
granted the Petitioner's request for review. There-
after, the Employer and the Petitioner filed briefs on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated 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, including
the parties' briefs on review, and makes the following
findings:
The Employer, Grey Nuns of the Sacred Heart, is a
nonprofit Alaska corporation engaged in the admin-
istration of hospitals. It presently operates only the
Kodiak Island Borough Hospital here involved. The
Petitioner sought a unit of full-time and regular part-
time hospital employees: The Regional Director,
relying principally on the Board's decision in Rural
Fire Protection Company,' found that the services
rendered by the Employer herein were so intimately
1 216 NLRB No. 95 (1975).
2 Member Fanning, in tight of his dissent in Rural Fire Protection, would
find it unnecessary to distinguish that case from the instant one; and in view
of the absence of any evidence of control over the employment relationship
by the exempted local government would find the Board's assertion of
jurisdiction proper.
3 Under Alaska law all boroughs must provide services with respect to
taxation and assessments , planning and zoning , and education AS
29.33.010. Additional powers may be assumed by a second -class borough by
holding an areawide election on such assumption . AS 29 33.250. One of the
powers which may be assumed relates to the provision of health services and
221 NLRB No. 201
connected with the municipal functions of the local
government as to warrant finding that the Employer
should share the latter's exemption from our jurisdic-
tion. Contrary to the Regional Director, we find that
Rural Fire Protection is not controlling of the instant
case.2
The Kodiak Island Borough is an incorporated
political subdivision of the State of Alaska. Approxi-
mately 3 years after its incorporation, a referendum
was held in which -borough voters approved a local
assembly resolution authorizing the construction of a
hospital facility and further approved an accompany-
ing construction bond issue .3 Pursuant thereto the
Kodiak Island Borough Hospital was constructed
during 1968 and 1969. It is a 25-bed facility which
provides health care services to native Alaskans and
welfare recipients, as well as all other residents of the
borough area.
The borough itself, owns the hospital facility
including its equipment and furnishings. The Em-
ployer leases the facility from the borough at a token
rental of $1 per year. The lease provides that the
lessee will use the premises for health care purposes
only and will, submit an annual audit to the lessor
and accord the lessor the right to inspect the
premises .4
The operating expenses of the hospital are princi-
pally defrayed by patient fees; however, on at least
one occasion the borough assembly has appropriated
tax revenues to cover an operational deficit. Addi-
tionally, the assembly has appropriated moneys to
defray the cost of major repairs and capital improve-
ments to the hospital. The construction costs of a
planned extended care wing will be borne by the
borough, the Employer making no contribution of
capital.
Overall control of the hospital is vested in a nine-
member governing board composed of private
citizens from the borough area, as well as Grey Nun
sisters. The borough government has no representa-
tion on the governing board nor any voice in the
selection of its members . Total responsibility for the
day-to-day functioning of the hospital is vested in its
administrator. The Employer alone determines all
personnel policies and effectuates all personnel
decisions. The borough government plays no role
and exercises no control with respect to hospital
hospital facilities. AS 29.33.48 030 (5).
4 The Employer contends that since the time of the hearing the lease has
been changed to a 5-year operating agreement. The new agreement
additionally provides that: (1) the Employer will submit its proposed budget
to the borough, (2) the borough will budget for operating deficits; (3) the
Employer's books may be inspected by the borough, and (4) the borough
may make recommendations as to the hospital rates charged by the
Employer Inasmuch as we find the changes embodied in the operating
agreement do not substantially alter the relationship between the Employer
and the borough , we find it unnecessary to determine whether they have, in
fact, been put into effect.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees; nor does -it engage in any actual
supervision of the' hospital's operation.
In Rural Fite Protection, supra, relied on by the
Regional Director, the Board declined to assert
jurisdiction on the basis of the finding that the
firefighting functions of the nonexempt employer
were "intimately connected" with the municipal
functions of the, exempted city" of Scottsdale, Arizo-
na. The sine qua non for such fmding is that the
services provided by the nonexempt employer be
essential to the purposes for which the exempted
institution exists. The'Board has previously noted the
necessity of this element in cases of this type. In
Herbert Harvey, Inc.,5 for example, the Board stated,
inter alia, "Where the services are intimately connect-
ed with the exempted operations of the institution,
the Board has found than the contractor shares the
exemption; on the other hand, where the services are
not essential to such operations the Board has found
that the contractor is-not exempt and asserts jurisdic-
tion over the contractor's activities." (Emphasis'
supplied.) The instant case therefore places before us
the question of whether or not for purposes of-our
jurisdiction the provision of health care is a service
essential to the operation of a local government. In
accord with the recently issued decision in Bishop
Randall Hospital,6 we find that the operation, of a
hospital is not necessarily so basic or traditional a
municipal function as to warrant our declining to
assert jurisdiction. We note 'especially that the
existence of municipalities whose health care needs
are serviced by other than local government hospitals
is in no sense rare ; however, the existence of
municipalities whose fire and police protection is
exclusively provided by private contractors is indis-
putedly the exception rather than the rule. We
further note that, while a local government may
choose to involve itself in health care activities, as
did the borough herein through passage of a
referendum, we view the very fact that a referendum
was necessary for the government to engage in such
activity as indicative of the nontraditional and
nonessential character of the service. Finally, we
observe that governments in varying degrees often
engage in activities paralleled by employers in the
private sector. However, we are unwilling to find that
a government 's mere participation in an activity per
se constitutes a basis for concluding such activity to
be an essential government function. The scope of
Rural Fire Protection is clearly not so broad as to
5 171 NLRB 238, 240 ( 1968).
6 217 NLRB No . 185 (1975), election enjoined sub nom. Board of Trustees
of the Memorial Hospital of Fremont County, Wyoming, d/b/a Bishop Randall
Hospital v. N.L.R B., 89 LRRM 2822 (D C Wyo., 1975), reversed and
remanded 523 F.2d 845 (C.A. 10, 1975). We note that as the Regional
Director issued his Decision and Order on May 13, 1975, and the Board's
Decision in Bishop Randall Hospital did not issue until May 28 , 1975, that
dictate this result and accordingly we find it does not
control the instant case. Further, as the Employer
herein otherwise meets the Board's jurisdictional
standards,7 and as there exists no evidence that the
Kodiak Island Borough is a joint employer of the
employees here involved, we find it will effectuate the
purposes of the Act to assert jurisdiction over the
instant case.
Having found our jurisdiction proper, it remains
for us to determine the unit appropriate for collec-
tive-bargaining purposes. The parties are in agree-
ment as to the appropriateness of Petitioner's
requested unit of all full-time and regular part-time
employees, excluding managerial employees, confi-
dential employees, office clerical employees, guards,
and supervisors. The parties have stipulated and
agreed' that professional employees, whom - they
defined as registered nurses (RN), registered medical
technologists (ASCP), X-ray technicians (RT), and
pharmacists, should be entitled to a self-determina-
tion election. Left in dispute is the status of nine
employees who the Employer contends are supervi-
sory and/or managerial employees, and one employ-
ee who the Employer contends should be excluded as
an office clerical. On the record as- a whole, we find
the following with respect to the disputed status of
these employees:
Jan Walker is the head of the Employer's X-ray
department. There is one other individual in the
department. She has interviewed a job applicant, her
recommendation regarding the suitability of the
applicant was accorded weight, and the applicant
was subsequently hired. She has the authority to
discharge and reprimand employees. She is responsi-
ble for scheduling and directing employees' work and
completing employee evaluations. She is authorized
to grant time off. On the basis of the foregoing, we
conclude she is a supervisor and, accordingly, we
exclude her from the unit.
Dick Carstens is head of the Employer's laboratory
department. There are three other individuals in the
department who work part time . He has interviewed
and recommended an applicant who was subse-
quently hired. He possesses the authority to disci-
pline or discharge employees. He is ultimately
responsible for the work performed in the depart-
ment and schedules and directs employees. He
completes performance reviews and gives instruction
where necessary. On the basis of the foregoing, we
the Regional Director was without the benefit of the Board 's determination
in that case in reaching his decision herein.
7 The parties stipulated that the Employer's gross revenue for the past
year has equaled or exceeded $250,000 and that during the same period it
received goods and/or services valued at at least $25,000 directly from out-
of-state sources.
GREY NUNS OF THE SACRED HEART -1217
are persuaded he is a supervisor and, accordingly, we
exclude him from the-unit.
Gary Eller is head of the Employer's pharmacy
department. He works part time at the hospital while
holding a full-time pharmacist's position for another
employer. There are two other employees in the
department; however, the record reveals they are
seldom present when Eller is working. On one
occasion, he interviewed and recommended a job
applicant. While the applicant was subsequently
hired, it is unclear whether his recommendation was
critical to the hiring. He orders supplies and has
initiated procedural changes within the pharmacy
department. His ordering responsibilities, however,
appear routine and the policies which he formulated
do not relate to personnel matters and are clearly
within the ambit, of his, professional duties. He is a
member of the Budget and Pharmacy and Therapeu-
tics Committees. Again, however, such membership
appears to be connected with his status as a
professional employee. On the basis of the foregoing,
we conclude he is neither a supervisory nor a
managerial employee and-accordingly include him in
the unit.
Sherril titterer is head of the operating room
department. She is a registered nurse and works with
three other nurses in the operating room. Although
the occasion has not arisen, she would be involved in
interviewing and recommending job applicants and
her recommendations accorded weight.'She evaluates
employees, instructs them, and exercises independent
judgment in directing their work. She is authorized to
grant time off and schedule overtime.'On the basis of
the foregoing, we find she is a supervisor and
accordingly exclude her from the unit:
Brian Shafford is head of the Employer's purchas-
ing department. There are no other employees in the
department. In addition to his purchasing duties, he
has filled in for employees in other departments
including the X-ray, maintenance, and laboratory
departments. The record reveals that his purchasing
authority is basically routine, in, nature and that
unusual purchases require consultation with conced-
edly managerial employees. On ` the basis of the
foregoing, we conclude Shafford is neither a supervi-
sory nor a managerial employee and accordingly
include him in the unit.
Barbara Carberry is the head of the anesthesiology
department. She is a registered nurse. There are no
other employees in the department. She occasionally
participates in employee performance reviews and
sometimes directs the work of other employees in
resuscitative efforts. We find, however, such evalua-
tion and direction is at best sporadic and indicative
of her professional rather than supervisory or
managerial status, and we accordingly include her in
the unit.
Sarah Bandy is head, of the Employer's laundry
department. The department contains only one
washing and one drying machine and one extractor.
There is only one other employee in the department.
Bandy does not possess the authority to hire or fire
and what direction and scheduling of employees she
engages in appears to be routine in nature. While
there is evidence that on one occasion she recom-
mended an individual who was subsequently hired,
the record does not establish to what extent Bandy's
recommendation was the determining factor in the
hire of that individual. The record contains no other
evidence- of supervisory - authority possessed or
exercised by'Bandy. Noting; particularly, the small
size of the Employer's laundry operation and the
routine nature of the tasks involved, we conclude
Bandy is neither a supervisory nor a managerial
employee and accordingly include her in the unit.
Tony Carpine is head of the Employer's engineer-
ing department and essentially functions as" the
'hospital custodian. There are no other employees' in
the department. We find no persuasive evidence that
he is either a supervisory, -or managerial employee
and accordingly include him in the unit.
Sue Devers is the hospital's head nurse and is, in
charge of approximately three to five nurses who
work on the day shift. She manages patient care and
assigns work to other nurses based'on her evaluation
of their capabilities in` dealing with a particular
patient's condition. She is empowered to authorize
overtime, may reprimand other employees and has
done 'so, and would be consulted in the event of a
contemplated' discharge of, an employee "working
under her. On the basis of the foregoing, we find her
to be 'a supervisory employee and accordingly
exclude her from the unit.
Mary Ellen Leite is the Employer's receptionist and
admitting clerk. The Employer contends she should
be excluded as an' office clerical employee. The
record reveals she works in the same area as other
office clericals and shares the same supervision. Like
other office clericals she has no medical training. As
part of her duties she takes the demographic histories
of incoming patients. This information is generally
supplied by the patient himself, or a relative. During
the weekends this function is performed by other
admitted office clericals on a rotational basis.
Contrary to the Petitioner, we do not consider this
patient contact a sufficient basis for distinguishing
Leite from the other office clericals and therefore
exclude her in accord with the parties' agreement to
exclude office clericals.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with our determinations herein and
the various stipulations of the parties, we shall direct
separate elections in the following voting groups:
(a) All full-time and regular part-time employ-
ees employed by the Employer at the Kodiak
Island Borough Hospital, excluding all profes-
sional employees, managerial employees, confi-
dential employees, . officee clerical employees,
guards, and supervisors as defined in the Act.
(b) ,All full-time and regular part-time profes-
sional employees employed by the Employer at
the Kodiak Island Borough Hospital, including
,registered nurses, registered, medical technolo-
gists , X-ray technicians, and pharmacists, but
,excluding all managerial employees, confidential
employees, office clerical employees, guards, and
supervisors as defined in the Act.
The employees in the professional voting group (b)
will be asked two questions on their ballot:
(1) Do you desire to be included in the same^,unit as
other employees of, the Employer for purposes of
collective bargaining?
(2) Do you desire to be represented ' for the
purposes of collective bargaining by Alaska Nurses
Association, a Constituent of American Nurses
'Association?
If a majority of the professional employees in
voting group (b) vote "Yes" to the first question,
indicating their wish to be included in a unit with the
nonprofessional employees, they will be so included.
Their votes on the second question will then be
counted together with the votes of the nonprofession-
al voting group (a) to decide the representative for
the whole unit.If, on the other hand, a majority of
the professional employees in voting group (b) do not
vote for inclusion, they will,not be included with the
nonprofessional employees, and their votes on the
second question will then be counted separately to
decide whether they, want Alaska Nurses Associa-
tion,, a Constituent of American Nurses Association,
to represent them in a separate professional unit.
Our unit determination is based in part, then, upon
the results of the elections. However, we now make
the following findings `in regard to the appropriate
unit:
(1) If a majority of the professional employees vote
for inclusion in a unit with nonprofessional employ-
ees, we find that the following employees will
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time employees
employed by the Employer at the Kodiak, Island
Borough Hospital, including , all full-time and
regular part-time professional employees, regis-
tered nurses, registered, medical technologists, X-
ray technicians, and pharmacists, but excluding
all managerial employees, confidential employees,
office clerical employees, guards, and supervisors
as defined in the Act.
(2) If a majority of the professional employees do
not vote for inclusion in the unit with nonprofession-
al employees, we find the following two groups of
employees will constitute separate units appropriate
for collective bargaining within the meaning of
-Section 9(b) of the Act.
(a) All full-time and regular part-time employ-
ees employed by the Employer at the Kodiak
Island Borough Hospital, excluding all profes-
sional employees, managerial employees, ^ confi-
dential employees, office clerical employees,
guards, and supervisors as defined in the Act.
(b) All full-time -and regular part-time profes-
sional employees employed by, the Employer at
the Kodiak Island Borough Hospital, including
registered nurses, registered medical technolo-
gists , X-ray technicians, and pharmacists, but
excluding all managerial, employees, confidential
employees, office clerical employees, guards, and
supervisors as defined in the Act.
[Direction of Elections and Excelsior fn. omitted
from publication.]