Ohio Valley Hospital Association

National Labor Relations Board - Board Decisions

Jun 29, 1977

230 N.L.R.B. 604 (N.L.R.B. 1977)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Valley Hospital Association1 and National
Economic Council of Scientists, Petitioner. Case
8-RC- I 0205
June 29, 1977
DEClSION ON REVlEW
On January 14, 1976, the Regional Director for
Region 8 issued a Decision and Direction of Election
in the above-entitled proceeding in which he exclud-
ed school of nursing instructors and assistant
instructors, a student health nurse, emergency room
doctors, and house physicians2 from an otherwise
all-professional unit as requested by Petiti~ner.~
Thereafter, in accordance with the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for
review of the Regional Director's decision, contend-
ing that the above classifications of employees
should be included in a unit of all other hospital
professionals.
By telegraphic order dated February 10, 1976, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review. Thereafter, the Employer filed a brief on
review.4 The American Hospital Association filed a
brief as amicus curiae.
The Board has considered the entire record in this
case, including the briefs on review, with respect to
the issues under review and makes the following
findings:
The Employer is a nonprofit health care facility
which provides both inpatient and outpatient care.
The Employer's full-time and regular part-time
general duty registered nurses are represented by the
Ohio Nurses Association. No other employees are
currently represented by any labor organization.
The name ofthe Employer appears as amended at the hearing.
Also excluded were currently represented registered nurses.
The Regional Director included the following classifications of
employees in the professional unit: medical laboratory technologists,
physical therapists, therapeutic dietitians, pharmacists, librarians, coordina-
tor ofstudent affairs. manager of multimedia services. and anesthetists.
On the basis of responses to the notice to show cause issued herein, the
Board hereby denies the Employer's motion to reopen the record, and
concludes that the Petitioner herein is a viable labor organization.
See Sr. Maty's Hospital, Inc., 220 NLRB 496 (1975). where we found "it
appropriate to group together in the RN unit all RN's wherever assigned in
the hospital." See also The Tnurees of Noble Hospiral, 218 NLRB 1441
(1975). where a nurse anesthetist was included in the RN unit even though
working under the director of anesthesiology rather than in the nursing
service department; and Newcon-Wellesley Hospital, 219 NLRB 699 (1975),
where instructors and nursing chairmen in the school of nursing were
included in the RN unit.
See Kaiser Foundation Hospirals, 219 NLRB 325 (1975). where nurse
anesthetists were excluded from the professional unit based on a finding that
they shared a community of interest with other registered nurses who were
already represented. Certainly, where no labor organization currently seeks
to represent the unrepresented nurses, and where there is n c evidence that
;:.L ,.brxs seek, for themselves, representation, i~ is dilficult to justify
Member Walther's characterization of our holding as failing to "assure
employees the fullest freedom in exercising the rights guaranteed by the
The school of nursing is a department of the
hospital engaged in the education of nurses. A
specific area of the hospital, set aside for the school,
contains classrooms and clinical laboratories. The
instructors, who are required to hold licenses as
registered nurses but who perform no general duty
nursing functions, conduct the didactic portion of the
student nurses' education within the school. The
clinical or practical aspect of that education is
conducted almost exclusively in the patient care
areas of the hospital, where the instructors and
students are in frequent contact with all those
employees who are directly involved in patient care,
including general duty registered nurses. In addition,
the instructors are frequently in the patient care areas
preparing for teaching. The student health nurse is
located in the school and is subject to the same
general working conditions as the instructors.
We agree with the Regional Director's conclusion
that the nursing school instructors, assistant instruc-
tors, and student health nurse share a closer
community of interest with the already represented
registered nurses than with the remaining profession-
al employees,5 and we shall therefore exclude them
from the professional unit hereh6
The Regional Director also excluded house physi-
cians and emergency room doctors from the profes-
sional unit. House physicians7 are supervised by the
director of medical education who is a physician
employed by the hospital. They are assigned to
perform case histories and physical exams, and to
assist in surgery. They are on call for routine orders
throughout the hospital. The house physicians assist
staff physicians, who are in private practice and who
have hospital privileges, but who are not hospital
employees. The emergency room doctors have
responsibilities extending only to the emergency
Act." We think it not only a matter of logic, though it is that, but also a
matter of good labor relations to provide that the unrepresented n M s
should look to the existing nurses unit for representation, if indeed they wish
representation, rather than to force them into another unit which is
appropriate without their inclusion, and which is the unit Petitioner seeks to
represent. Inclusion of these three classifications of nurses in the unit found
appropriate herein could lead to the undesirable result of requiring the
Employer to bargain with two different unions concerning the terms and
conditions of employment of registered nurses. Our exclusion of these
nurses precludes that possibility, but does not, as our colleague suggests,
deprive them ofthe opportunity to be represented in the future. In the words
of Levine Hospiral of Hapard Inc., 219 NLRB 327 (1975), the exclusion of
these nurses from the unit herein does not relegate them to a "state of
perpetual unrepresentation." For it is quite clear that the k i n e Hospital
scenario envisioned by our colleague is, simply, not before us at this time. If
and when we are confronted by such a situation, Len'ne Hospird suggests
that the Board would proffer an invitation to the cumnt representntive of
the other nurses to add these three nursing classifications to its existing
nurses unit. Additionally, that case suggests that the Board would entertain
a petition seeking to represent a unit of all registered nurses, including the
three in dispute herein. Levine Hospital does not suggest, however, that,
upon re!ection of any such invitation. the Board woold fnrrv-r n r -4de
representation of any excluded group of employees, either separately or as
pan of some other unit.
7 These physicians are not interns, residents or fellom.
230 NLRB No. 84
OHIO VALLEY HOSPITAL ASSN. 605
room, and perform no duties outside the emergency
room. They have the authority to order that tests and
patient treatments be provided by the various
departments of the hospital. They report to a
chairman whom they have selected from among
themselves.
Both classifications of doctors work regular 8-hour
shifts, and may serve on an on-call basis when not
working their regularly scheduled shifts. The doctors
are paid on an hourly basis, and receive substantially
the same fringe benefits as do other professional
employees. ~ 6 e house physician class&cation re-
quires a graduate medical degree, and they are hired
by the director of medical education and the
pkrsonnel department. The emergency room doctors
have been recruited as practicing doctors from within
the community by the hospital's board of trustees.
We, like the Regional Director, would exclude the
involved doctors from the professional unit, as
requested by Petitioner. By any reasoned analysis of
community of interest criteria, physicians constitute
a class unto themselves. Within the hospital hierar-
chy, physicians are the pivotal employees and all
other patient care employees are subject to their
professional direction. The essential functions of the
physician are not, and by law cannot, be performed
by any other individuals. For that reason, limited
supervisory authority over physicians is confined to
other physicians and, simul)2neously, the responsi-
bility to direct all other professionals, if that need
should eventuate, is inherent in the physician's, and
no other professional's, role. While this particular
case does not delineate the measure of compensation
of the physicians involved, it is, furthermore, com-
mon knowledge that physicians are paid substantial-
ly more than the overwhelming majority of other
professional employees. Such considerations, in
addition to those mentioned bv the Regional
J u - -
Director, namely, the unique and extensive educa-
tion, training, and skills of the physician, more than
amply support the conclusion that physicians, as a
class, possess a separate and distinctive community
of interest apart from other professional employees.
In excluding doctors from the professional unit
here involved, we are not unmindful that the Board
has been admonished by Congress to avoid undue
proliferation of bargaining units in the health care
industry. However, we considered this general caveat
in connection with our unit determinations ~er ta in-
1 ~ ~-~ ~
ing to registered nurses and concluded that because
of their special community of interest, that caveat did
* Mercy Hospicab o/Sacramento, Inc., 217 NLRB 765 (1975).
" Damrnican Sanra Cru: Hospital, 2 18 NLRB 12 1 1 (1975).
"' [t.rcelsior footnote omitted from publication.]
See New York University Medical Center, a Division of New York
Ilniversiry. 217 NLRB 522 (1975), where the Board did not grant a separate
not preclude the Board from placing them in a
separate unit,8 or excluding them from an otherwise
all professional unit, when reque~ted.~ In our
opinion, doctors have at least as separate a commu-
nity of interest as nurses and are therefore entitled to
the same treatment. We shall therefore exclude them
from the requested professional unit.
Accordingly, we hereby remand the case to the
Regional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, except that the payroll period for detennin-
ing eligibility shall be that ending immediately before
the issuance date of this Decision on Review.lo
MEMBER PENELLO, concurring in part and dissenting
in part:
I agree with my colleagues on the majority that the
nursing school instructors, assistant instructors, and
student health nurse should be excluded from the
professional unit found appropriate herein. However,
I disagree with their decision to exclude house
physicians and emergency room doctors from that
professional unit.
My colleagues rely upon what they consider to be a
distinct community of interest possessed by these
doctors among themselves. I do not deny that
physicians play a unique role in a hospital and that
their education and training qualify them for peculiar
res~onsibilities. However. I am of the o~ in ion that
an; separate community of interest 'that these
doctors might enjoy has been largely submerged in
the broader community of interest which they share
with other closely allied health care professional
employees included in the unit at this hospital.11
Like the other professional employees, these
physicians work regularly scheduled 8-hour shifts.
They are paid on an hourly basis, as are medical
technologists. They receive no more nor higher
benefits than do other professionals included in the
unit. These two classifications of doctors are in a
category of wages designated by the Employer as
exempt, which, while not explained in the record,
also includes physical therapists, dietitians, and
technologists, categories of professionals included in
the unit.
Both classifications of doctors are in constant
contact with other professional employees in diag-
nosing illnesses and directing patient treatment.
However, they are not the only professional employ-
ees at this hospital who make diagnoses and direct
treatment. Registered nurse anesthetists who are
included in the unit make diagnoses and initiate
unit to certain psychiatrists. In so doing, the Board noted, inter alia, that
such a separate unit could lead to the proliferation o f bargaining unifs at the
medical center, and that these psych~atnsfs might share a community o f
interest with other allied professionals.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patient treatment. Two members of the nursing
school faculty with advanced degrees are involved in
an independent psychiatric consultation service
which does not operate under the direction of a
physician. They make observations, diagnoses, and
initiate treatment, although they may not prescribe
medication. However, registered nurse anesthetists,
like the house physicians and emergency room
doctors, do prescribe medication.
While the house physicians work with and direct
that patient treatment be provided by various other
professionals, they themselves are in a position
subsidiary to that of the attending physician who, in
effect, directs the major portion of a house physi-
cian's duties. In this regard, they are assigned by the
attending physician to perform case histories and
physical exams, and to assist in surgery.
I am of the opinion that these doctors do not
possess such a singular and distinct community of
interest as to warrant their exclusion from the
professional unit. I do not deny that they have more
education and training and more highly developed
skills than do most other professional employees in
the health care industry. Nor do I minimize the
functional differences which exist among the various
groups of professional employees at this hospital.
Rather, I do not perceive such a great distinction
among health care employees at the professional
level which justifies carving out professional units
along educational or functional lines. These health
care professionals invariably have advanced and
specialized education giving them certain highly
developed skills in their own particular areas of
expertise. Many, if not most, must be licensed and
certified by state agencies and accredited by profes-
sional organizations. They receive comparable wages
and benefits (particularly in comparison to other
employees), and generally work a 40-hour week.
All these common characteristics of health care
professional employees serve to demonstrate that
they constitute a readily identifiable unit unto
themselves. Although I agree that physicians share a
greater community of interest with each other than
they do with other professional employees, this is
nonetheless true for other types of health care
professionals, and is not a characteristic possessed
solely by physicians. The Board has heretofore not
granted separate bargaining units for medical labora-
tory technologists12 or pharmacists,l3 for we recog-
nized that these professionals were not shown to
"possess interests evidencing community of interest
~ e r c ~ Hospitals of Sacramento, Inc., 2 17 NLRB 765 (1975).
'3 Kairer Foundation Hospirah, 219 NLRB 325 (1975).
l 4 Id. at 326.
' W ~ e r c j . H~spspirals of Sacramentu, Inc., supra at 769.
l6 Id. at 767.
l 7 Id. at 767.
with each other separate from that shared with the
other [professional] employees in the health care
industry." l4
In addition to the lack of a separate community of
interest, physicians as a whole, as well as other
professional groups
. . . have failed to demonstrate the kind or
degree of separate representation for collective-
bargaining purposes which was so important to
our finding that registered nurses may constitute
a separate professional bargaining unit. . . .
[Nlone has demonstrated the development of
such a tradition of separate collective bargaining
as has been the case with registered nurses.l5
This established tradition was deemed to be
"[plerhaps of the greatest significance in establishing
the separate interests of registered nurses,"l6 even
more so than the community of interest they enjoyed
among themselves. We further noted that "[sleparate
bargaining for other health care professionals, to the
extent it has been shown to exist, appears to have
been on a scale of considerably smaller propor-
tions." l7
Furthermore, we must be constantly mindful of the
congressional mandate to avoid the undue prolifera-
tion of bargaining units in the health care industry. I
recognize that there is a diversity of skills between
each group of professional employees. But to grant a
separate unit to each group along functional lines is
to ignore the express admonition of Congress to take
heed in determining the number of bargaining units
in the health care industry.18
Therefore, considering all the above-cited factors, I
would include the house physicians and emergency
room doctors in the professional unit.
MEMBER WALTHER, dissenting:
I concur with Member Penello's opinion that house
physicians and emergency room doctors should be
included in the professional unit herein. Contrary to
my colleagues, however, I would also include in the
unit the nursing school instructors, the assistant
nursing school instructors, and the student health
nurse.
In the instant proceeding, the Employer's general
duty registered nurses historically have been repre-
sented in a separate unit from which the nursing
school instructors, assistant instructors, and the
student health nurse have been excluded. The
18 I cannot help but note that my colleagues who are will~ng to exclude
these phys~cians from the professional unlt herein are the same who would
carve out separztr ,.;- :-I ,-rvicr *nL ..ial,,~zita)~cc er~~ployns , and lor
technical employees. See Nuthon ond Miriam Barnen MemoriaI HosprtaI
Assocrarron d / b / a Barnert Memoria/ HospiIaI Cenfer, 217 NLRB 775 (1975).
OHIO VALLEY HOSPITAL ASSN. 607
nonincumbent Petitioner seeks a unit comprised of
certain professional employees, excluding these three
classifications. My colleagues, affirming the Regional
Director, exclude these classifications from the unit
sought. In reaching this result, my colleagues do not
dispute the fact that the employees in these classifica-
tions are professional employees, nor do they find
that such employees have no community of interest
with those included within the unit sought. Rather,
the sole basis for my colleagues' exclusion of these
employees lies in their finding that such employees
share a "closer" community of interest with the
already represented general duty registered nurses
than with the other professional employees.
The majority decision, in my view, rests on a far
too subtle assessment of the relative community of
interests between the employees in the three classifi-
cations and the general duty registered nurses on the
one hand and the remaining professional employees
on the other. Such an approach, in my view, is totally
unwarranted. Rather, it is clear that the nursing
school instructors, the assistant instructors, and the
student health nurse in fact share a community of
interest with the professional employees and that,
therefore, a sufficient basis exists to include the three
classifications within the unit sought.19 Thus, there is
no dispute that the employees in these classifications
are in fact professionals, that they come in frequent
contact with the professioqls within the unit, and
that they are recruited through the same personnel
office as are the included professionals. Moreover,
these excluded employees perform none of the
functions performed by the general duty registered
nurses and do not share common supervision with
them. Accordingly, the inclusion of these three
classifications by no means is in derogation of
considerations of community of interest.
Furthermore, substantial considerations of policy
compel the inclusion of these three classifications
within the overall professional unit. As noted above,
the existing unit of registered nurses was established
by voluntary recognition and the union currently
representing these nurses does not now seek to add
the three classifications to that unit. Similarly, the
I'etitioner has specifically sought the exclusion of
fuch employees, thereby expressing no interest
whatsoever in representing them. By declining to
~nclude these classifications within the overall profes-
sional unit, the majority now leaves the nursing
school instructors, the assistant instructors, and the
student health nurse as a residual group of employees
and, by so doing, has created the very situation
which confronted the Board in Levine Hospital of
Hayward, Inc., 219 NLRB 327 (1975). In that former
case, the Board held that, in situations where a group
of employees have been excluded from a unit without
the benefit of our guidelines for appropriate units in
the health care industry, the Board would not
consider itself bound by its general residual unit
doctrine, nor would it feel constrained to offer the
excluded group all the options normally available to
a true residual unit. In Levine, all nonprofessional
employees were represented except for seven employ-
ees who were sought to be represented by a
nonincumbent union as a separate residual unit. The
Board concluded that those seven employees should
properly be included in the already existing unit,
either by means of a petition seeking to represent the
entire unit, including the seven employees in issue, or
by a petition filed by the incumbent to add them to
the existing unit.
In the present case, my colleagues have left the
nursing school instructors, the assistant instructors,
and the student health nurse residual to both the
general duty nursing unit and the professional unit.
Thus, assuming that the Board continues to adhere
to Levine, it would not entertain a petition by a
nonincumbent union seeking to represent the residu-
al employees as a separate unit, but rather would
require that the incumbent union, which already
represents the general duty nurses, file a petition
seeking to add these classifications to its existing
unit. Given the fact that the incumbent union here
does not now seek to add these employees to the
existing unit of general duty nurses, and given the
Board's exclusion of such employees from the overall
professional unit, my colleagues here have with
virtual certainty deprived the employees in the three
excluded classifications of any opportunity in the
future to be represented for the purposes of collective
bargaining.
Unlike the situation in Levine, we now have the
opportunity, by including the three classifications in
the overall professional unit, to prevent the creation
of an unrepresented residual group. In my view, not
only should the possibility of Levine-type situations
" ' ' !he Reg~onal Director included within the proiessional unit eight instructors, assisrant instructors, and the student health nurse, inlrr a!!a,
. : m\lcrcd nurse anesthetists whom the Petitloner specifically sought to perfom none of the functions periormed by the general duty nurses and do
8 . I I ~ d c ~lrhough no issue has been raised on review with respect to the not share with them.
8 I U I I I ~ I I ~ I S . it is significant that, like these anesthetists, the nursing school
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be foreseen and prevented whenever possible, but the fullest freedom in exercising the rights guaran-
such situations certainly should not be created, as teed by the Act, I would include the nursing school
here, by a unit determination of the Board's own instructors, the assistant instructors, and the student
making. health nurse within the overall unit of professional
For the foregoing reasons, and particularly mindful Accordingly, I dissent.
of the congressional mandate to assure employees