Jersey Shore Medical Centers-Fitkin Hospital

National Labor Relations Board - Board Decisions

Sep 8, 1976

225 N.L.R.B. 1191 (N.L.R.B. 1976)

JERSEY SHORE MEDICAL CENTER-FITKIN HOSPITAL 1191
Jersey Shore Medical Center-Fitkin Hospital and Jer-
sey Nurses Economic Security Organization of the
New Jersey State Nurses Association , Petitioner.
Case 22-RC-6701
September 8, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Meredith
Reuben. Following the hearing and pursuant to Sec-
tion 102.67 of the National Labor Relations Board's
Rules and Regulations and Statements of Procedure,
Series 8, as amended, the Regional Director for Re-
gion 22 transferred this case to the Board for deci-
sion. Briefs were filed by the Employer' and Peti-
tioner in support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs of the parties, the Board finds:
1. The parties stipulated, and we find, that Jersey
Shore Medical Center-Fitkin Hospital is a private
nonprofit hospital and a New Jersey corporation
which provides medical and educational services at
its Neptune, New Jersey, location. During the pre-
ceding 12 months, the Employer derived gross reve-
nue in excess of $250,000 from provision of the
above-mentioned services. During the same period of
time, the Employer purchased goods in excess of
$50,000 from suppliers located directly outside the
State of New Jersey. Based on the foregoing stipula-
tion, we find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of "all
full-time and part-time faculty members of the Ann
May School of Nursing, excluding all other employ-
ees." The Employer, contrary to the Petitioner, con-
tends that a unit limited to faculty registered nurses
is inappropriate and that the only appropriate unit
must include all registered nurses employed at its en-
tire complex. The Employer's unit would include
staff registered nurses and in-service instructors (reg-
istered nurses) as well as the faculty registered nurs-
es.' The Employer's unit would be composed of 250
registered nurses, while Petitioner's unit would be
composed of 19 registered nurses.'
The Ann May School of Nursing, hereafter re-
ferred to as the School, is an integral part of the Hos-
pital ° with no separate legal identity or existence.
The School is located in the same building complex
which houses all of the hospital buildings and is con-
nected to the Hospital by an enclosed ground-level,
150-foot passageway. The timeclock, which all school
and hospital personnel punch, is located in this pas-
sageway. The School has eight classrooms, six for use
by the School, one for use by the hospital LPN's, and
one for use by the hospital inservice education de-
partment. This building also houses the following fa-
cilities, which are primarily dedicated for use by the
School: a faculty conference room and living room,
faculty offices, administration offices, and a student
library. The dormitory for the student nurses, hereaf-
ter called students, is also located in the school build-
ing. In addition, offices in the School are used by
hospital personnel such as the nurse auditor, the pub-
lic relations department, which serves both the
School and Hospital, the infection control depart-
ment, and the school of anesthesiology. The Hospital
audiovisual equipment is kept in the School. The rec-
ord further shows that all classrooms, while primarily
for use by the students, when not so utilized may be
used by other persons upon request. There is also a
classroom facility in the Hospital.
There is one personnel department for both the
Hospital and School. Accordingly, many of the
working conditions are identical for the hospital reg-
istered nurses and the faculty registered nurses (here-
after referred to as hospital or staff RN's and faculty
RN's or faculty, respectively). Thus, they are paid
biweekly by hospital checks, receive the same holi-
days, sick leave, and other fringe benefits, undergo
2 Thus, the Employer's appropriate unit includes all registered nurses em-
ployed at its facilities, including head nurses, assistant head nurses, charge
nurses, instructors (inservice and school of nursing), nurse coordinators,
nurse clinicians, and health and recreation nurses, but excluding all office
clerical employees, maintenance and service employees, licensed practical
nurses, technical employees, administrative employees, executives , interns
and residents, pharmacists. other professional employees, guards and super-
visors as defined in the Act, and all other employees
J
The Petitioner has indicated that it does not wish to proceed to an
election if the larger unit is found to be appropriate
4 The portion of the Employer's complex exclusive of the School is re-
1 The name of the Employer appears as amended at the hearing ferred to herein as the "Hospital "
225 NLRB No. 162
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same physical examinations, use the same park-
ing and cafeteria facilities, and have the same type of
grievance procedures, termination and, disciplinary
policies. While the faculty members are in general
paid more than the hospital RN's, hospital RN's with
comparable education receive the same salary. Staff
RN's wear white uniforms while the faculty wear
street clothes in the classroom and lab coats when
teaching in the Hospital. Both, however, work a 40-
hour week. In addition, the starting time for faculty
and staff coincides 90 percent of the time, as when
faculty RN's teach clinical classes their workday
commences at the same time as that of the staff
RN's. The faculty RN's vacations are geared to the
school semester, while the staff RN's vacations are
based on hospital needs. However, both receive the
same vacation benefits. Although staff RN's work
weekends, only 2 nurses out of 231 staff RN's are on
call.
The hospital and faculty RN's are supervised by
separate directors. Each of the directors reports to
the hospital administrator. The director of nursing
services is in charge of the staff RN's and the inser-
vice instructors. The director of the school of nursing
is in charge of the faculty RN's. There is cooperation
between these directors relative to the functioning of
the students and the faculty RN's when they are in
the Hospital during the students' clinical experience.
Each of the directors operates her department rela-
tively autonomously. Subject to budgetary restraints
set by the Employer's board, each director has the
authority to hire, fire, and evaluate employees.
Grievances are handled by each director at the first
step, and are thereafter processed through the same
hospital officials, finally reaching the hospital admin-
istrator.
In relation to duties and qualifications, the Peti-
tioner argues that the faculty is engaged primarily in
teaching and counseling students, whereas the staff
RN's are engaged in patient care. The Employer,
however, contends that the faculty members are also
engaged in patient care while they are guiding and
counseling students who are assigned to care for pa-
tients during their clinical training. The Petitioner
contends, however, that the faculty RN's only duties
are student supervision and teaching rather than car-
ing for the assigned patient. The evidence shows that
the faculty members spend a majority of their teach-
ing hours in the Hospital.' The day before the stu-
dents report to the Hospital, the faculty registered
nurse visits the floor and, in consultation with the
head nurse, selects patients for which the students
5 From September 1975 to May 1976, the total group of faculty RN's was
scheduled for 6,291 hours in the Hospital and 654 hours in the classroom
are to care. Each faculty RN has approximately four
students in the clinic. When the faculty member ap-
pears on the floor with the students, they review the
report made out by a staff nurse on each patient's
condition. While the students are caring for their as-
signed patients, the faculty RN moves from one stu-
dent to the next to insure that proper procedures are
being followed. If a problem with regard to the pa-
tient arises, the faculty RN calls the head nurse.
Thus, the faculty nurses are in constant contact with
staff RN's. The faculty RN's, while in the Hospital
with the students, help the students with the patient
care and observe the work of the students. At the
conclusion of their tour, both the student and faculty
member sign the patient's chart, indicating the treat-
ment administered.
The Employer has inservice instructors who are
RN's and who conduct classroom programs and lec-
tures for the staff RN's.6 Student nurses as well as
faculty members attend these courses on a voluntary
basis. It is also noted that inservice instructors lec-
ture to regular classes held by the School for the stu-
dents, and two of these instructors recently conduct-
ed a course at the School because two faculty RN's
had been terminated. The inservice instructors report
directly to the director of nursing.
The Employer has many committees 7 concerning
patient care and hospital practices, on which faculty
and staff RN's serve together in addition to their
other duties. All faculty participate on the nursing
service-nursing education coordinating committee
which coordinates Hospital and School operations
concerning the clinical program described above.
Membership on this committee requires that all fa-
culty meet with hospital head nurses and supervisors.
Each faculty nurse is responsible for having meetings
with her specific supervisor and head nurse. Faculty
nurses participate in the Hospital's disaster control
program.
Compared to staff RN's, the faculty RN's have a
higher level of education and more training. The evi-
dence shows that, of the 19 faculty RN's, 17 have
either a BA or BS degree, and 2 have MA degrees.
Of the 180 staff nurses, about 60 have RN certifica-
tions, 4 have 2-year college degrees, 30 have BSN
degrees, 30 are working toward a BA degree, 4 are
working toward their MA degrees, and I has a MA
degree
From January 1968 to April 1, 1976, there were 13
instances where nurses transferred from the Hospital
6 During the 1975-76 school year, II nursing service personnel were
scheduled to teach 36 hours of theory to school students In addition, an
inservice education mstuctor supervised school students for 96 hours in
February 1976
7 These deal with safety practices procedure, infection control , nursing
duty, problem-oriented medical records, and maternity department
JERSEY SHORE MEDICAL CENTER-FITKIN HOSPITAL 1193
to the school of nursing and vice versa (the faculty
numbers 19 at present). Five faculty RN's transfer-
red to staff RN positions; one inservice instructor
became a faculty member and seven staff RN's
joined the faculty. In fact, one nurse went from nurs-
ing to faculty in 1969 and returned to nursing in
1971. When seeking a faculty position, the staff RN
is given no pereference over an outside applicant and
must file an application with the director of nursing
of the School for the job.
There is no history of bargaining in connection
with the above-described employees of the Employ-
er.
Conclusion
Based on the entire record, we find that any sepa-
rate community of interest that the full-time and
part-time registered nurses employed as faculty
members at the Employer's Ann May School of
Nursing might enjoy has been largely submerged in
the broader community of interest which they share
with other registered nurses. In so finding, we rely on
(1) the proliferation of bargaining units which could
occur if registered nurses working as staff RN's, in-
service instructors, nurse coordinators, nurse clini-
cians, and health and recreation nurses were found
to be entitled to separate representation; (2) the simi-
larity of functions performed by faculty RN's and
staff RN's and, to a lesser degree, all registered nurs-
es, in that they are all ultimately involved in patient
care; (3) the daily contact between faculty and staff
RN's; (4) the similarity of average salaries for staff
RN's and faculty RN's; (5) permanent transfers and
interchange between staff and faculty RN's; (6) iden-
tical overall supervision; (7) a single personnel de-
partment and identical fringe benefits; (8)joint parti-
cipation on many committees; (9) the fact that the
Hospital and School are integral and inseparable
parts of a single enterprise; (10) geographical prox-
imity of the School and Hospital; (11) sharing of fa-
cilities and services; and (12) lack of any prior histo-
ry of representation under the Act.'
8 We do not view the Board's unit determinations with respect to law
school faculties cited by our dissenting colleague as controlling herein Un-
like the instant case , the members of the law school faculties in those cases
were in a different discipline from the rest of the university faculty mem-
bers , they had different tenure requirements , they were regulated by a dif-
ferent body than the other faculties of the university, i e , the courts and the
American Bar Association , and they were located in separate buildings for
all of their activities In addition , the law schools operated independently of
the rest of the university by maintaining their own academic calendar and
establishing faculty committees with jurisdiction over such areas as curricu-
lum content , courses , scheduling , recruitment , promotion , and tenure of the
faculty members In the instant case , as set forth more fully above , all RN's
are engaged in the same discipline , there is joint use of the same building
complex , there is no separation in the performance of their daily duties,
there is the same overall supervision , there is joint participation on commit-
Contrary to our dissenting colleague, our decision
herein is limited solely to the circumstances of this
case and is based on a full consideration of the merits
of Petitioner's request. In no way is our decision
meant to suggest that in the health care industry only
an overall unit of professionals trained in the same
basic discipline is appropriate. We shall continue to
apply traditional Board criteria to such cases, about
whose application reasonable men can differ, at the
same time being cognizant of Congress' admonition
against undue proliferation of bargaining units in the
health care industry.
Accordingly, we shall, in view of the foregoing,
dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is dismissed.
MEMBER J ENKINS, dissenting.
The majority has acknowledged that faculty mem-
bers are higher paid than staff RN's; do not wear
uniforms, as do staff RN's; and have different start-
ing times, vacation policy, first-step grievance proce-
dure, separate supervision, and a higher level of edu-
cation and training than staff RN's. These facts
alone sufficiently establish that the faculty has a suf-
ficiently separate and distinct community of interest
from staff RN's to find the unit requested by Peti-
tioner to be appropriate. However, there is more.
The job descriptions of each group differ com-
pletely, with faculty only having duties with respect
to the formulation and implementation of training
for students, and staff only having duties with respect
to patient care. Besides their basic difference in func-
tions, there is a difference in when each group per-
forms its separate duties. Thus, staff nurses work
weekends, are on call, and receive shift differentials
for working during other than normal business
hours, whereas faculty only work during the regular
workweek. In addition, vacations for faculty are set
to coincide with the school semesters, whereas staff
nurses' vacations are geared to the personnel needs
of the Hospital. Each faculty member has an office
while staff RN's do not. Finally, faculty RN's run
their own separate inservice training program with a
distinctly different purpose from the staff program.
When all of these facts showing a separate com-
munity of interest among faculty nurses are consid-
ered together, some acknowledged by the majority
tees and a sharing of facilities and services, and the operations of both
faculty and staff RN 's are an integral part of the Hospital Finally , there is
interchange and transfer and, while their focus is different , their end is the
same, patient care
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and others clearly established in the record, it is clear
that there is appreciably more evidence of a separate
community of interest here than in most cases where
the Board finds a less than overall unit to be appro-
priate. Nevertheless, the majority has dismissed this
petition, finding that any separate community of in-
terest enjoyed by faculty RN's has somehow been
"largely submerged" in the broader community of
interest shared with all registered nurses.
A close examination of the evidence relied on by
the majority in finding this broad community of in-
terest shows it to be so limited as to make the effect
of this Decision the creation of a rule that, whenever
professionals trained in the same basic discipline
work for a single employer, no matter what their
function, how it is performed, or how differently they
are treated, only a unit including all such profession-
als can be appropriate. While it may be true that
under certain circumstances such an overall unit of
professionals may be appropriate, the rule the major-
ity is impliedly formulating here has never been
Board law. See, e g., Southern California Permanent
Medical Group, 209 NLRB 106 (1974). Similarly, the
prohibition against undue proliferation of bargaining
units in the health care industry does not deprive the
Board of its duty to determine appropriate bargain-
ing units based on traditional unit considerations.
Congress was mindful of this in passing the health
care amendments, and the Board has recognized as
much in postamendment decisions. Mercy Hospitals
of Sacramento, Inc., 217 NLRB 765 (1975).
The majority relies on several factors which tend
to show a certain overall uniformity in the
Employer's administrative functions. However such
evidence adds little weight in balancing the separate
interests of faculty against any broad interests among
all RN's. As far as the record shows, all employees
are issued biweekly paychecks from the same person-
nel office and share in the basic benefit program es-
tablished by the Employer that covers such items as
holiday policy and health care programs. These fac-
tors might well distinguish this Employer's employ-
ees from those of a different employer, but hardly
add any distinctive features to RN's as a group. If
this type of overall administrative uniformity were
considered determinative of unit questions, the
Board could never find a requested group of employ-
ees appropriate for purposes of collective bargaining
in less than an employerwide unit. Obviously this is
not the case, inasmuch as the Board has, on numer-
ous occasions, found smaller than employerwide
units appropriate in the face of similar overall ad-
ministrative uniformity. J. C. Penney Company, Store
No. 139, 151 NLRB 53 (1965); Montgomery Ward &
Co, Incorporated, 150 NLRB 598 (1964); J. C. Pen-
ney Company, Inc. Store No. 1302, 196 NLRB 708
(1972).
As to the other factors listed by the majority as
supporting its finding, each must be qualified by the
circumstances of this case, so that together their cu-
mulative effect is insignificant.
The daily contact between staff RN's and faculty
referred to by the majority is primarily a coincidence
of the fact that nursing education, by its very nature,
heavily relies on the clinical experience. While both
staff and faculty, therefore, must come together at
the focal point, the patient, each is functioning differ-
ently-the staff RN to deliver care to the patient and
the faculty RN to oversee and instruct the student.
The record also shows, contrary to the majority's
implication, that there is no regular transfer policy
between staff and faculty. This is true mainly be-
cause most staff RN's lack the requisite educational
achievements to become faculty members, and the
higher pay for faculty creates a natural resistence
against transfer to the staff in what would be an
overall unit position.' There is also no regular inter-
change between staff and faculty, the only such inci-
dent in the record having been occasioned by the
unexpected discharge of two faculty members after
their courses had been set up. Thus, two inservice
staff nurses, who happened to be qualified in the par-
ticular subject matter of these courses, stepped in to
complete the semester. While one of these staff nurs-
es, who is the director of inservice for the staff, has
from time to time been a guest lecturer at the School,
it has not been because of her position on the staff,
but because of her personal status as an expert in her
field.
Finally, it is undenied by the majority that faculty
and staff have separate immediate supervision, which
extends all the way to separate and autonomous di-
rectors for the School and the hospital staff. The
identical overall supervision relied on by the majority
thus refers to the hospital administrator, to whom
both directors report To cite such far-removed over-
all authority over these different groups of employees
is to fail to see the forest for the trees. Similarly,
while there are certain joint committees which are
composed of both faculty and staff RN's, such a fact
overlooks the additional existence of separate meet-
ings regularly held among staff and faculty, where
the problems peculiar to their separate functions are
discussed and dealt with.
I view this case as controlled by the Board's unit
determinations with respect to law school faculties,
'Of the approximately 180-190 nonfaculty RN's employed by the Em-
ployer. the record shows that less than 17 percent have degrees The record
further shows that at least one of the staff degree holders is a supervisory
employee
JERSEY SHORE MEDICAL CENTER-FITKIN HOSPITAL 1195
wherein the Board has recognized the distinct com-
munity of interest among law professors even though
they are part of a larger institution of learing that
employs many other professors . Fordham University,
193 NLRB 134 (1971); The Catholic University of
America, 201 NLRB 929 (1973); University of San
Francisco, 207 NLRB 12 (1973). Certainly the factors
here which distinguish faculty from staff RN's are
equal to or greater than those the Board found suffi-
cient to distinguish law professors from other univer-
sity professors.
As I have stated above, simply by placing this re-
quest to find appropriate a unit in the context of the
health care industry does not justify the Board in
failing its obligation to examine each request on its
own merits. In applying the proper criteria in this
case, as I have shown above, the majority's decision
emerges as a departure from established Board prac-
tice which cannot be justified in law, policy, or by the
facts. I, therefore, dissent from the majority's deci-
sion to dismiss the instant petition. I would find the
requested unit of all faculty RN's appropriate and
order an election in that unit.