Lee Hospital

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 947 (N.L.R.B. 1990)

947
300 NLRB No. 131
LEE HOSPITAL
1 The American Association of Nurse Anesthetists (AANA) filed a brief as
amicus curiae in this case.
2 The Petitioner has requested oral argument. This request is denied as the
record and briefs adequately present the issues and the positions of the parties.
3 In St. Francis II, the Board held that the ‘‘disparity-of-interests’’ standard
is to be used in resolving bargaining unit questions for health care institutions.
271 NLRB at 953. Thus, a separate unit of health care employees is not appro-
priate unless the Board concludes that sharper than usual disparities or dif-
ferences have been shown to exist with respect to the normal community-of-
interest criteria for the requested employees and those in an overall profes-
sional or nonprofessional unit. The Board’s normal community-of-interest cri-
teria include wages, hours, and working conditions; qualifications, training,
and skills; frequency of contact and degree of interchange with other employ-
ees; frequency of transfer to and from the petitioned-for unit; commonality of
supervision; degree of integration with the work functions of other employees;
area practice and patterns of collective bargaining; and collective-bargaining
history. 271 NLRB at 953 fn. 35. In St. Francis III, the Board reiterated the
position, set forth in St. Vincent Hospital, 285 NLRB 365 (1987), that pending
completion of the health care unit rulemaking, the Board would apply existing
law, i.e., the disparity-of-interests standard.
4 Hospital President and Chief Executive Officer John Ungar testified that
various medical directors, or their professional corporations, have individual
contracts with Lee Hospital and that this is a common arrangement throughout
the hospital industry. Lee Hospital has separate medical directors in the fol-
lowing departments: surgery; medicine, internal medicine, and intensive care;
coronary care; radiology; physical medicine; medical oncology; emergency;
obstetric/gynecology; employee health laboratory; radiation oncology; and an-
esthesia.
5 Lee Hospital is under the overall supervision of Ungar. Six vice presidents
report directly to Ungar, including the vice president of professional services
who is responsible for the anesthesia department.
6 The hospital’s employee handbook contains hospital policies applicable to
all hospital employees, including CRNAs, regarding such matters as, inter alia,
attendance, preemployment physicals, employee complaint procedure, personal
appearance, hospital rules, behavior standards, and disciplinary action.
Lee Hospital and Laurel Certified Registered Nurse
Anesthetist Associates, Petitioner. Case 6–RC–
10136
December 21, 1990
DECISION ON REVIEW AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
RAUDABAUGH
On March 29, 1989, the Regional Director for Re-
gion 6 issued a Decision and Order in this proceeding.
He found that the petitioned-for unit of all certified
registered nurse anesthetists (CRNAs) employed by
Lee Hospital (the Employer) in Johnstown, Pennsyl-
vania, was not an appropriate unit for collective bar-
gaining and dismissed the representation petition. In
accordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, the Petitioner
filed a timely request for review, and the Board grant-
ed review on August 18, 1989.
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, including the briefs on review,1 and has decided
to affirm the Regional Director’s dismissal of the rep-
resentation petition.2 Consistent with the principles set
forth in St. Francis Hospital, 271 NLRB 948 (1984)
(St. Francis II), remanded 814 F.2d 697 (D.C. Cir.
1987), on remand 286 NLRB 1305 (1987) (St. Francis
III),3 we adopt the Regional Director’s determination
that no sharper than usual differences or disparities
exist which would justify the petitioned-for unit of Lee
Hospital CRNAs, excluding all of the hospital’s other
professional employees.
Lee Hospital is a 321-bed acute care facility with
approximately 1200 employees. The CRNAs work in
the anesthesia department of the hospital. The primary
function of the CRNAs is to administer anesthesia and
monitor care of the anesthesia patients in accordance
with established policies and procedures and under the
direction of an anesthesiologist or attending physician.
The anesthesia department, like all other hospital de-
partments which provide direct patient care, is under
the immediate supervision of a department head, who
is a hospital employee, and a medical director, a li-
censed physician who is not an employee of the hos-
pital. In those hospital departments which provide di-
rect patient care, the department head is responsible for
administrative and personnel matters, while the med-
ical director is responsible for patient care matters.4
Chief Nurse Anesthetist Pavlosky, a stipulated su-
pervisor, is the department head of the anesthesia de-
partment. The medical director, Dr. Quinn, is the presi-
dent of Anesthesiology Associates, Inc. (AAI), a pro-
fessional corporation that has independently contracted
with the hospital for the operation of the anesthesia de-
partment and the recovery room. Pavlosky reports to
both Quinn and the hospital vice president of profes-
sional services.5 Pavlosky is the immediate supervisor
of the CRNAs. The agreement between AAI and the
hospital provides, inter alia, that AAI is responsible for
the ‘‘organization and supervision of personnel of the
Department of Anesthesia, including (a) Submitting
recommendations regarding personnel adjustments or
additions, (b) Establishing and maintaining standards
of care for Anesthesia Department consistent with the
objectives of the Hospital, the development of proce-
dures and routines that would provide for better utiliza-
tion of personnel and skills within the Department.’’
The Petitioner seeks review of the Regional Direc-
tor’s finding that a disparity of interests does not exist
between the CRNAs and the other hospital profes-
sional employees sufficient to justify the creation of a
separate unit for the CRNAs. However, as stated
above, we adopt the Regional Director’s determination
that a separate unit of CRNAs is not appropriate. In
applying the disparity-of-interests standard to the facts
of this case, the Regional Director correctly noted that
although certain differences exist between the CRNAs
and the hospital’s other professional employees, all of
the hospital employees, including the CRNAs, are sub-
ject to common personnel policies and procedures6 and
share, for the most part, the same terms and conditions
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 All hospital employees, including CRNAs, receive the same health insur-
ance, life insurance, pension plan, annuity plan, disability income plan, vaca-
tion, holidays, sick leave, funeral leave, and educational assistance.
8 Other than emergency room physicians, who have a contract with Lee
Hospital, the only other salaried nonsupervisory employees of the hospital are
the director of reimbursement and the hospital accountant.
9 Seven CRNAs are generally scheduled to work each weekday from 7 a.m.
to 3:30 p.m. to provide coverage for the hospital’s six operating rooms which
are normally in operation during this period. Each weekday two of the seven
CRNAs are scheduled on a rotating basis to work beyond 3:30 p.m. pursuant
to the department’s ‘‘first late/second late’’ system. The CRNA designated as
‘‘first late’’ is required to work past 3:30 p.m. if any surgery is still in
progress. The designated ‘‘second late’’ CRNA is required to work if needed
and carries a paging device when she leaves the hospital following the end
of her shift so that she may be contacted if necessary to report back to work
in emergency situations.
10 The director of reimbursement and the hospital accountant are the only
other professional employees not paid time-and-a-half for hours worked over
40 hours a week. CRNAs do not receive premium pay for overtime work re-
sulting from the ‘‘first late/second late’’ system. The scheduled 24-hour shift
which CRNAs are required to work every 2 weeks is included in the 80-hour
guarantee and is not compensated at premium pay.
11 When fewer CRNAs than the number originally scheduled to work are
needed to report due to an abbreviated operating room schedule, Pavlosky,
after consultation with Quinn, determines who will be instructed not to report
and whether the absence from work will be with or without pay.
12 See Greenhoot, Inc., 205 NLRB 250 (1973), in which the Board refused
to establish a multiemployer unit absent a showing that the employers involved
had expressly conferred on a joint bargaining agent the power to bind them
in negotiations or that they had by an established course of conduct unequivo-
cally manifested a desire to be bound in future collective bargaining by group
rather than individual action. 205 NLRB at 251.
of employment, including common fringe benefits;7
participate in the hospital’s new employee orientation
program and periodic in-service programs; receive the
same percentage general wage increases; and are paid
4-hour minimum call-in pay as are other patient care
employees. The Regional Director also recognized that
the hospital’s team approach to patient care results in
frequent and substantial interaction and contact be-
tween CRNAs and other professional employees of the
hospital.
In its brief on review, the Petitioner argues that
there exists a sufficient disparity in wages, salaries,
and working conditions of CRNAs to warrant a finding
that a separate CRNA unit is appropriate. The Peti-
tioner argues that, in contrast to other professional em-
ployees, CRNAs are salaried exempt employees, guar-
anteed an 80-hour pay period every 2 weeks;8 are re-
quired to work a 24-hour coverage shift and may also
be scheduled to work a 32-hour shift consisting of 8
hours following 24 on-call hours; are routinely sched-
uled for late coverage;9 do not receive premium pay
for all hours of overtime worked as do all but two pro-
fessional employees of the hospital;10 and are subject
to being designated by the hospital as being ‘‘absent
with pay’’ (AWP) or ‘‘absent without pay’’
(AWOP).11 The Regional Director found, however,
that the unique scheduling and overtime compensation
applicable to CRNAs is due largely to hospital and an-
esthesia department requirements on how best to uti-
lize the CRNA staff to meet patient needs. The record
shows that other hospital departments have devised a
variety of scheduling formats to provide patient care
coverage.
The Petitioner also argues that AAI is a joint em-
ployer with Lee Hospital of the CRNAs and that this
relationship further evidences the disparity of interests
that exists between CRNAs and other professional em-
ployees. The Regional Director found it unnecessary to
pass on the issue of whether AAI is a joint employer
of the CRNAs, based on his finding that ‘‘the relation-
ship existing between AAI and the CRNAs does not
compel the conclusion, even when considered in con-
junction with the other factors relied upon by the Peti-
tioner in support of its disparity-of-interests conten-
tions and particularly in view of the congressional ad-
monition against undue proliferation of units in the
health care industry, that the petitioned-for unit of
CRNAs is appropriate for collective bargaining pur-
poses.’’
We conclude, contrary to the Regional Director, that
the joint employer issue must be resolved to determine
whether a separate CRNA unit is appropriate, not be-
cause the issue is determinative with respect to the dis-
parity-of-interests analysis, but because, as a general
rule, the Board does not include employees in the
same unit if they do not have the same employer, ab-
sent employer consent.12 Thus, if AAI is a joint em-
ployer, the CRNAs could be included in the unit with
other professionals employed by Lee Hospital only
with the hospital’s consent. It is clear that Lee Hospital
does not consent to such an arrangement.
The appropriate standard for determining joint em-
ployer status is whether two separate entities share or
codetermine those matters governing the essential
terms and conditions of employment. Further, to estab-
lish such status there must be a showing that the em-
ployer meaningfully affects matters relating to the em-
ployment relationship such as hiring, firing, discipline,
supervision, and direction. TLI, Inc., 271 NLRB 798
(1984); Laerco Transportation, 269 NLRB 324 (1984).
In examining the relationship between AAI and Lee
Hospital, we find that AAI does not possess sufficient
control over the essential terms and conditions of em-
ployment of the CRNAs to establish that it is a joint
employer.
In its brief on review, the Petitioner argues that the
following factors establish that AAI is a joint em-
ployer. The agreement between Lee Hospital and AAI
provides that AAI is responsible for the operation of
the anesthesia department, including its organization
and supervision. Dr. Quinn supervises and evaluates
the clinical performance of CRNAs on a daily basis.
Quinn or his associate Dr. Kim, the other shareholder
in AAI, ‘‘almost exclusively’’ makes decisions with
regard to daily work assignments, the number of
CRNAs that are to report to work each day, the iden-
tity of scheduled CRNAs who are not to report to
work because of abbreviated operating room schedules,
949LEE HOSPITAL
13 Quinn’s action is inconsistent with the hospital’s formal hiring procedure.
President Ungar testified that the hiring procedure is initiated by the hospital’s
personnel department. After a candidate completes a written application, the
candidate is interviewed by the appropriate department supervisor and medical
director who submit evaluations and recommendations to personnel with Ungar
having final approval authority on all employee hiring. Normally, the per-
sonnel department communicates the formal offer of employment to the can-
didate.
14 The agreement between Lee Hospital and AAI provides that it can be ter-
minated by either party at any time subject to a 120-day written notice of ter-
mination requirement. Unless terminated, the agreement is deemed automati-
cally renewed annually.
15 The student anesthetists were employees of the hospital under Quinn’s su-
pervision at the time he extended to them offers of employment as CRNAs.
16 Employee grievances are submitted to the department head, the vice presi-
dent of professional services, or the personnel department.
when to call a CRNA to work in an ‘‘on-call’’ situa-
tion, and when to allow the CRNAs to leave at the end
of the day or to take lunch breaks and midday breaks.
The Petitioner adds that AAI, through Quinn, has par-
ticipated in the formulation of policies impacting on
the working conditions of the CRNAs involving anes-
thesia department procedures. Specifically, the Peti-
tioner notes that the record shows that Quinn is co-
author of a number of department guidelines relating
to reduced scheduled working hours, reporting off poli-
cies, vacation policy, reducing scheduled work hours,
and the department time schedule. The Petitioner also
asserts that Quinn was actively involved in discussions
between Lee Hospital and the CRNAs concerning
overtime compensation and the hospital policy requir-
ing on-call CRNAs to carry beepers. Quinn, in con-
junction with Chief Nurse Anesthetist Pavlosky, estab-
lishes the qualifications of the CRNAs at Lee Hospital
by reviewing and writing the CRNA job description.
Quinn has the authority to discipline CRNAs in the
form of oral and written reprimands and on one occa-
sion transferred a CRNA to another department be-
cause of poor work performance. Quinn has partici-
pated significantly in the hiring of CRNAs by hiring
six CRNAs without prior approval or consultation with
hospital administration.13 Finally, the Petitioner asserts
that AAI receives direct profit from the CRNAs by
billing directly all individual patients and/or their re-
spective third-party payors, other than medicare pa-
tients, for the professional services of the CRNAs
while only paying Lee Hospital a set hourly rate for
CRNAs. AAI also represents on various reimbursement
forms that the CRNAs are employees of AAI. The Pe-
titioner argues that by recouping a significant profit for
CRNA professional services, AAI is representing and
treating the CRNAs as its own employees.
The record shows that AAI, through Quinn by virtue
of his responsibilities as medical director in charge of
patient care, exercises some control in the day-to-day
operation of the anesthesia department. However,
Pavlosky has primary responsibility for administrative
and personnel matters, including preparing work sched-
ules, making regular overtime assignments (first
late/second late schedule), and determining the number
of CRNAs reporting for work. Although Quinn assigns
CRNAs to the operating rooms, Pavlosky can make
changes to Quinn’s assignments as needed without
consulting Quinn. Pavlosky prepares the non-
abbreviated work schedule designating who will report
to work. In case of an abbreviated work schedule,
Pavlosky testified that she suggests which CRNAs will
be instructed not to report and Quinn testified that he
has always followed Pavlosky’s proposal. The record
further shows that Quinn is not involved in the deci-
sion as to whether a CRNA’s absence from work will
be designated as absent with pay or absent without
pay. Quinn determines when patient care needs neces-
sitate requesting an on-call CRNA to report and when
a CRNA may take breaks or leave at the end of the
day. Pavlosky schedules vacation and handles requests
for nonemergency leave.
With respect to promulgation of policies affecting
working conditions, the record shows that Quinn has
jointly formulated with Pavlosky a number of policies
impacting on the working conditions of the CRNAs,
for example, reduced-hour work schedules and time
off, and has participated with Pavlosky in discussions
between the CRNAs and the hospital administration
concerning the anesthesia department’s overtime com-
pensation policy and beeper policy. The decision to
implement the overtime and beeper policies, however,
was made by the hospital. Thus, although Quinn in his
capacity as medical director exerts control over matters
affecting the day-to-day operation of the anesthesia de-
partment, the record clearly establishes that President
Ungar retains ultimate control over the medical direc-
tors14 on all matters and, in particular, labor relations.
The record shows that Quinn hired six CRNAs with-
out following the formal hiring procedure. All these in-
dividuals were either past employees of the hospital or
student anesthetists of the now defunct Lee Hospital
School of Anesthesia.15 President Ungar had final ap-
proval over these and all hiring decisions.
Quinn, like all department heads and medical direc-
tors of the hospital, has authority to discipline employ-
ees with respect to conduct related to patient care. Dis-
cipline based on conduct unrelated to patient care is
handled by Pavlosky or the hospital personnel depart-
ment. ‘‘Serious’’ disciplinary matters involving
breaches of hospital behavior standards or rules of con-
duct (which are specified in the hospital’s employee
handbook) are investigated by the personnel director
who then makes a recommendation to the department
head and the vice president.16 Quinn does not have the
authority to terminate an employee. Quinn testified that
he has the authority to recommend discharge, but has
never exercised that authority.
We are not persuaded that AAI’s profiting from the
CRNAs’ services or its representation to patients or
third-party payors that it is billing for the medical di-
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 See TLI, Inc., supra, in which the Board held that participation in bar-
gaining sessions where the party did not control the economics of the relation-
ship did not establish a joint employer relationship.
18 We note that the Petitioner does not wish to proceed to an election with
the CRNAs on a broader basis.
rection of its own employees demonstrates that AAI is
a joint employer of the CRNAs. First, we note that the
hourly rate of reimbursement that AAI owes to Lee
Hospital for a CRNA’s services is set by the hospital
and is not negotiable between the hospital and AAI.
Further, the record clearly shows that Lee Hospital, not
AAI, determines the essential terms and conditions of
employment of the CRNAs. President Ungar deter-
mines labor relations policy. Lee Hospital sets the
wages, and salary and fringe benefit policies for the
CRNAs.
AAI’s involvement in the day-to-day operation of
the anesthesia department does not demonstrate that
AAI maintains sufficient control over the terms and
conditions of the CRNAs’ employment to constitute a
joint employer with Lee Hospital. The supervision and
direction exercised by AAI, through Quinn, on a day-
to-day basis is related to the physician-nurse relation-
ship and patient care issues. Quinn has limited hiring
and disciplinary authority and lacks firing authority. As
discussed above, although Quinn assigns CRNAs to
operating rooms, Pavlosky schedules work, vacation,
sick leave, and overtime. Personnel policies and proce-
dures are administered by the hospital. Although Quinn
has formulated some department policies and partici-
pated in discussions between the Hospital and the
CRNAs concerning various policies, the final decision
to implement these policies was made by President
Ungar.17 Further, we note that President Ungar retains
ultimate control over the hospital’s medical directors
on all matters. Under these circumstances, we do not
find that AAI shares or codetermines those matters
governing the essential terms and conditions of em-
ployment to an extent that it may be found to be a
joint employer.
Accordingly, we affirm the Regional Director’s De-
cision and Order dismissing the petition based on his
finding that the petitioned-for unit of CRNAs is not an
appropriate unit.18
ORDER
The petition is dismissed.