Sisters Of Mercy Health Corp.

National Labor Relations Board - Board Decisions

May 11, 1990

298 N.L.R.B. 483 (N.L.R.B. 1990)

SISTERS OF MERCY HEALTH CORP. 483
Sisters of Mercy Health Corporation , Employer and
Local 79, Service Employees International
Union, AFL-CIO, Petitioner. Case 7-RC-
18948
May 11, 1990
DECISION AND DIRECTION
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in, and conditional objections to,' an elec-
tion held June 2, 1989,2 and the attached Regional
Director's report recommending disposition of
them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 47 for and 34 againsit the Petitioner, with 18
challenged ballots, a sufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and brief and adopts the Regional
Director's findings and recommendations,3 as
modified.
In determining which of the Employer's on-call
registered nurses were eligible to vote, the Region-
al Director found appropriate the formula utilized
in Marquette General Hospital, 218 NLRB 713, 714
(1975). Thus, he found eligible those on-call nurses
who had worked a minimum of 120 hours in either
of the two quarters immediately preceding the eli-
gibility date.4 Applying this formula, the Regional
Director found that Betty Bayless and Susan
McCauley were not eligible to vote. He calculated
that Bayless worked 112 hours and McCauley
worked 89.7 hours during the 13 weeks ending
March 11, and Bayless worked 73 hours and
McCauley worked 99 hours during the 13 weeks
ending June 10. The Employer excepts, arguing
that the Regional Director has used an outdated
and arbitrary standard to determine eligibility, and
that the formula in Milwaukee Children's Hospital
Assn., 255 NLRB 1009, 1014 (1981), wherein part-
time registered nurses who worked a regularly
scheduled 8-hour shift biweekly were found to be
eligible to `vote, is the appropriate standard.
In the instant case, the parties stipulated to a unit
of all regular full-time and part-time registered
nurses excluding, inter alia, casual employees. Ac-
cordingly, the question before the Board is wheth-
er on-call registered nurses Bayless and McCauley
should be included in the unit as regular part-time
employees or excluded as casuals . We recognize
that in determining the status of on-call employees
in the health care industry the Board has utilized
various eligibility formulae as guidelines to distin-
guish "regular" part-time employees from those
whose job history with the employer is sufficiently
sporadic that it is most accurately characterized as
"casual." In Marquette, 218 NLRB at 714, the
Board devised an equitable formula that was de-
signed to determine eligibility where the facts indi-
cated there was a significant disparity in the
number of hours worked by that employer's on-call
nurses . Although the Board's explanation in Mar-
quette was relatively brief, the Board did indicate
that some on-call nurses worked as many as 540.5
hours per quarter, and some as few as 23. It ap-
pears that in Marquette the Board chose a relatively
high number of quarterly hours so that those on-
call nurses whose work patterns most closely re-
sembled those of other full-time unit nurses were
distinguished from those who worked relatively in-
frequently. On the other hand, where the on-call
employees as a group all appear to work on a regu-
lar basis, the Board usually has found a more liber-
al standard applicable.6
Since the on-call registered nurses here both
work on a regular basis,7 and there is no evidence
of the significant disparity in the hours worked of
the on-call nurses that was present in Marquette,
we find that the Regional Director was too restric-
tive in applying the Marquette formula to the facts
of this case. We find that the Board's eligibility for-
mula for on-call employees, as set forth in Davison-
Faxon Co., 185 NLRB 21, 24 (1970), is more appro-
' The Regional Director 's report does not address the Petitioner's con-
ditional objections except to note that, if necessary after a revised tally of
ballots is issued, steps will be taken to resolve them
2 All dates are in 1989 unless otherwise indicated.
8 In the absence of exceptions, we adopt, pro forma, the Regional Di-
rector's recommendation that the challenges to the ballots of Laurie Faris
and Fredrrca VandenBerg be sustained , and the challenged ballots of Pa-
tricia Kelley, Linda Anderson, Faye Fredm, Cynthia Lee, Denise Yonk-
man, Alice Whipple, and Kathryn Cruickshank be overruled.
4 There are no exceptions to the Regional Director 's finding that the
on-call registered nurses who met this formula share a sufficient commu-
nity of interest with the unit employees.
5 The Regional Director does not explain why he calculated the hours
worked during the two quarters preceding June 10 (approximately 1
week after the June 2 election date) rather than the two quarters preced-
mg the April 14 eligibility date.
' See, e.g., Davison-Paxon Co., 185 NLRB 21, 24 (1970); V.LP. Movers,
232 NLRB 14, 15 (197'7); Riverside Community Memorial Hospital, 250
NLRB 1355, 1356 (1980); West Virginia Newspaper Publishing Co., 265
NLRB 446 (1982). See also Newton-Wellesley Hospital, 219 NLRB 699,
703 (1975).
7 McCauley worked 7.5 hours or more each week for 11 of the 13
weeks prior to the eligibility date. She worked 8 hours on January 20, 8
hours from January 21 to 22, 7 5 hours on February 17, 9.8 hours from
February 18 to 19, 8.5 hours on March 3, 8 hours from March 4 to 5, 8
hours on March 17, 8 , hours from March 18 to 19, 8 hours on March 31,
8 hours from April I to 2, and 8 hours on April 14. Bayless worked 8
hours or more each week for 5 of the 12 weeks prior to the eligibility
date . She worked 8 hours during the week ending February 4, 8 hours on
February 12, 8 hours on February 16, 8 hours on February 19, 8 hours
on February 20, 8 hours on February 22, 8 hours on-March 23, and 9
hours on March 27.
298 NLRB No. 72
4$4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
priate.7 Accordingly, we will find McCauley and
Bayless eligible to vote if they regularly average 4
hours or more of work per week during the quar-
ter prior to the eligibility date.
Applying this formula, we find that McCauley
averaged approximately 6.9 hours per week for the
13 weeks prior to the April 14 eligibility date. Bay-
less averaged approximately 5.4 hours per week for
the 12 weeks and 6.4 hours per week for the 14
weeks prior to the eligibility date. Bayless' time-
card for the biweekly pay period ending January
21 lists 24 hours, but does not list which days Bay-
less actually worked. (The second week of the pay
period is in the quarter, although the first week is
not.) Therefore, we do not know if Bayless worked
during the week ending January 21. However,
even if Bayless did not work during this week, she
still averaged 5 hours per week for the 13 weeks.
Accordingly, we find that both McCauley and
Bayless regularly averaged 4 hours or more per
week for the quarter prior to the eligibility date
and were eligible to vote. We overrule the chal-
lenges to their ballots.
DIRECTION
It is directed that the Regional Director for
Region 7 shall, within 10 days from the date of this
decision , open and count the ballots cast by Patri-
cia Kelley, Linda Anderson, Faye Fredin, Cynthia
Lee, Denise Yonkman, Alice Whipple, Kathryn
Cruickshank, Susan McCauley, and Betty Bayless
and prepare and serve on the parties a revised tally
in Case 7-RC-18948. If the revised tally reveals
that the Petitioner has received a majority of the
valid ballots cast, and the remaining five chal-
lenged ballots9 are not determinative, the Regional
Director shall issue a Certification of Representa-
tive. If the remaining five challenged ballots are
determinative, the Regional Director shall prepare
a report and recommendations as to their disposi-
tion. If the revised tally reveals that the Petitioner
has not received a majority of the valid ballots
cast, and the remaining five challenged ballots are
not determinative, the Regional Director shall pre-
pare a report and recommendations as to the dispo-
sition of the Petitioner's conditional objections.
8 Member Oviatt would not apply the Davison-Paxon Co. eligibility for-
mula to the present case . Under the facts of the case, he would require
the on-call nurses to regularly average 8 hours or more of work per week
during the quarter prior to the eligibility date (104 hours) in order to be
eligible to vote. As neither Bayless nor McCauley meets this requirement,
Member Oviatt would sustain the challenges to their ballots.
9 The Regional Director did not make recommendations on the chal-
lenges to the ballots of Judy Dinner, Sue Dunham, Virginia Hillard,
Steve Hobbins, and Karen Keller
REPORT AND RECOMMENDATIONS ON
CHALLENGES AND OBJECTIONS
Upon a petition filed on April 6, 1989, and pursuant to
a Stipulated Election Agreement approved by the Re-
gional Director of the National Labor Relations Board
on April 24, 1989, an election secret ballot was conduct-
ed on June 2, 1989, under my direction and supervision
among the Employer's employees in the following ap-
propriate collective bargaining unit:
All regular full-time and part-time registered nurse
employed by the Employer at its 400 Hobart Street,
Cadillac, Michigan facility; but excluding in the
Act, and all other professional and nonprofessional
employees.
The payroll period for eligibility was the bi-weekly
period ending Friday, April 14, 1989.
Upon the conclusion of the election, a copy of the
Tally of Ballots was made available to each of the parties
in accordance with the current Rules and Regulations of
the Board. The results of the election, as set forth in the
Tally of Ballots, were as follows:
Approximate number of eligible voters-99
Void ballots-0
Votes cast for the Petitioner-47
Votes cast against participating labor organiza-
tion-34
Valid votes counted-81
Challenged ballots-18
Valid votes counted plus challenged ballots-99
The 18 challenged ballots, which are sufficient in
number to affect the election results, were received and
segregated in a matter adequate ' to maintain their secre-
cy.
Thereafter, on June 7, 1989, the Petitioner timely filed
conditional Objections to Conduct Affecting the Results
of the Election, which were immediately served upon
the Employer by the regional office.
As the determinative challenged ballots raise material
issues, an investigation was first conducted with respect
to 13 of them which lend themselves to an administrative
investigation, thereby conserving the Board's resources. i
All parties were given full and ample opportunity to
submit evidence bearing on these 13 challenged ballots.
Based upon the investigation conducted herein, I make
the following findings and recommendations:
Faris and VandenBerg
Employees Laurie Faris and Fredrica VandenBerg
were challenged by the Board Agent who conducted the
election because their names did not appear on the elec-
tion eligibility list. The Petitioner and the Employer
agree that VandenBerg and Faris are not eligible.
Review of the Employer's time records reveals that Faris
and VandenBerg began work for the Employer on May
1 The challenges to the ballots of Judy Dinner, Sue Dunham, Virginia
Hillard, Steve Hobbins, and Karen Keller may raise issues of fact that
require a hearing As their resolution appears unnecessary to reach a con-
clusive election result, I make no ruling on their status at time
SISTERS OF MERCY HEALTH CORP. 485
8, 1989 and April 21, 1989 , respectively; therefore, they
began work for the Employer after the April 14, 1989,
payroll eligibility date.
By the express terms of the election agreement, in
order to be eligible to vote, an employee must be em-
ployed and working on the established payroll eligibility
date, and on the day of the election . See, also, F & M
Importing Co., 237 NLRB 628, 632 (1978). Accordingly,
I recommend that the challenges to the ballots not be
counted.
Kelley
Patricia Kelley 's vote was challenged by the Petitioner
on basis that she had given notice to resign two weeks
prior to the election and therefore did not share a com-
munity of interest with those employees who would con-
tinue to work after her resignation . Time cards provided
by the Employer show that Kelley worked from 8:38
a.m. to 6 :53 p.m . on June 2, the day of the election.
Kelley was a full-time registered nurse performing pa-
tient care on the day of the election.
Had Kelley stopped working prior to the election day,
she would be ineligible to vote. F & M Importing Co.,
supra; Midland Steamship Line, Inc., 66 NLRB 836, 840,
841 (1946). However, the time records establish that she
worked on June 2 , 1989 , and, therefore, I recommend
that the challenge to Kelley 's vote should be overruled
and her ballot counted . NLRB v. Hillview Health Care
Center, 705 Fed . 2d 1461 (7th Cir. 1983).
Anderson, Bayless, Fredin, Lee McCauley and Yonkman
The Union challenged the ballots of Linda Anderson,
Betty Bayless , Faye Fredin, Cynthia Lee, Susan McCau-
ley and Denise Yonkman on the basis that they are are
casual employees and share no community of interest
with unit employees . The Employer contends that these
six employees are part of a larger group of on-call em-
ployees who work regularly and share a community of
interest with full-time and regular part -time and regular
part-time RNs.
The six employees are all RNs performing patient
care, the same work done by unit employees, under the
same supervision , and on the same hourly pay scale.
However, only those on-call employees who work more
than twenty hours per week receive health benefits.
The stipulated unit description in this case , consistent
with the usual Board standards, includes regular part-
time employees and excludes casual employees . There is
no evidence that when they entered into this stipulated
agreement, the parties had any mutual understanding on
the eligibility status of the on-call nurses.
The on-call nursing staff performs unit work, side-by-
side with the full and regular part time nursing staff. De-
spite the employment benefits that they do not totally
share, their community of interests clearly lies with the
rest of the nursing staff . Mid-Jefferson County Hospital,
259 NLRB 831 (1981 ); Milwaukee Children 's Hospital,
255 NLRB 1009 , 1014 (1981); Marquette General Hospi-
tal, 218 NLRB 713 (1975); Ann Arundel General Hospital,
217 NLRB 848 (1975).
This, however, determines only their unit placement,
not their individual eligibility based upon their employ-
ment history . In Marquette General Hospital, supra, the
Board formulated an eligibility formula for on-call health
care employees patterned to distinguish those having
substantial employment history with the Employer from
those that do not . Under this formula , which I fmd ap-
propriate to the facts in this case , those on-call employ-
ees who have worked a minimum of 120 hours in either
of the two quarterly periods immediately preceding the
eligibility date are eligible to vote . Payroll records pro-
vided by Employer show that the challenged on-call
nurses worked the following hours during each of the
two successive 13 weeks preceding the election date:
13 weeks ending 13 weeks ending
3/11/89 6110/89
Anderson 212.1 222.5
Bayless 112 73
Fredin 257 222
Lee 56 128
McCauley 89.7 99
Yonkman 83.9 189.6
Based upon the figures , I conclude that Anderson,
Fredin, Lee, and Yonkman have worked a sufficient
amount of time to establish a substantial community of
interests with the full-time and regular part-time RNs,
but that Bayless and McCauley have not. Therefore, I
recommend that the challenges to the four ballots of the
former group be overruled , and that the two challenges
to the ballots of the latter group be sustained.
Cruickshank and Whipple
Kathryn Cruickshank and Alice Whipple were chal-
lenged by the Board Agent because their names did not
appear on the voter eligibility list. The Petitioner 's posi-
tion is that both employees were off on sick leave during
the eligibility period and were therefore ineligible to
vote. The Employer's position is that although these em-
ployees were on sick leave on the eligibility dates their
return to work is anticipated and therefore they should
be eligible to vote. The investigation revealed that both
employees were on a leave of absence for health reasons
on the eligibility dates. Cruickshank 's leave commenced
on October 3, 1988 ; Whipple's last day worked was July
14, 1988.
The Board restated its postion on employees on sick or
maternity leave in Red Arrow Freight Lines, 278 NLRB
965 (1986): "The fundamental rule governing the eligibil-
ity of an employee on sick or maternity leave is that he
or she is presumed to continue in such status unless and
until the presumption is rebutted by an affirmative show-
ing that the employee has been discharged or resigned."
Here the evidence shows that Cruickshank and Whipple
were on sick leave on the eligibility dates . Both have re-
tained their seniority . Neither one has ever tendered a
resignation nor has either been terminated prior to the
election . Accordingly , I recommend that the challenges
to the ballots of Cruickshank and Whipple be overruled
and that their ballots be opened and counted.
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Janyth Haines and Marlene Reamer
The vote of Haines and Reamer were challenged by
the Board Agent because their names did not appear on
the Excelsior List. The Employer asserts that they are
eligible to vote because they were employed as graduate
nurses prior to the election date . The Petitioner assert
that they did not become graduate nurses until May 20,
which is after the April 14 pay roll eligibility date, and
that they therefore should be excluded from voting in
the election.
Haines and Reamer , like many other Employer em-
ployees , are participating in a loan program established
by the Employer to encourage LPNs to return school to
earn their RN degrees . Pursuant thereto , Haines and
Reamer have completed their RN training ; they graduat-
ed from nursing school on May 5, 1989 . The Employer
converted them from LPNs to graduate nurses on May
14 and gave them both a raise in pay bring them up to
the starting wage scale of RNs. On May 18 , 1989, the
State of Michigan , Department of Licensing and Regula-
tions, Board of Nursing, issued a temporary license certi-
fying them as graduate registered nurses.
The Board has a long history of including graduate
nurses in bargaining units with RNs. Mercy Hospital of
Sacramento, Inc., 217 NLRB 768 (1975). The Board rea-
sons that graduate nurses are professional employees like
RNs because thay have completed the extensive medical
training required to be an RN , perform the same func-
tions and duties as an RN, and share the same working
conditions with the RNs . The Employer has presented
evidence that its graduate nurses meet these criteria. In
addition to having completed their educational require-
ments, the graduate nurses work for the same pay, under
the same supervison and perform substantially the same
work as do the RNs. Graduate nurses also undergo and
orientation program required of new RNs.
I conclude that the Employer's graduate nurses should
be included in a unit with the RNs. However, Reamer
and Haines were not employed as graduate nurse on
April 14, the payroll eligibility date. Although they will
most likely continue their employment after the election,
like Faris and VandenBerg, I see no reason to differenti-
ate between Reamer and Haines and other newly hired
unit employees who were not actually performing bar-
gaining unit work on or before the payroll eligibility
date. Greenspan Engraving Corporation, 137 NLRB 1308,
1308 (1962). Accordingly, I recommend that the chal-
lenges to the ballots of Reamer and Haines be sustained
and that their ballots not br counted.
RECOMMENDATIONS
In accordance with the findings above,
IT IS HEREBY RECOMMENDED that the challenges to
the ballots of Betty Bayless, Laurie Faris, Janyth Haines,
Susan McCauley, Marlene Reamer, and Fredrica Van-
denBerg be sustained.
With 6 of the 18 challenged ballots sustained, the 12
remaining challenged ballots (7 overruled and 5 unre-
solved) are no longer determinative. Accordingly,
IT IS FURTHER RECOMMENDED that the Board issue a
certification of representative.
However, should the Board not adopt my recommen-
dations that the challenges to all six of these ballots be
sustained,
IT IS FURTHER RECOMMENDED that the challenges to
the ballots of Linda Anderson, Kathryn Cruickshank,
Faye Fredin, Patricia Kelley, Cynthia Lee, Alice Whip-
ple, and Densie Yonkman be overruled, and that the
Board direct me to open and count them, issue a revised
tally of ballots, and take subsequent appropriate action,
including steps to resolve the remaining challenges, if
they are still determinative, and the Union's conditional
objections, if necessary.
Dated at Detroit, Michigan, this 17th day of August,
1989.2
2 Under the provisions of Section 102.69 of the Board 's Rules and Reg-
ulations, exceptions to this decision may be filed with the Board in Wash-
ington, D.C. 20570. This request must be received in Washington, D.C.
by August 31, 1989 Under the provisions of Section 102 69(g) of the
Board's Rules, documentary evidence, including affidavits which a party
has timely submitted to the Regional Director in support of its objections
or challenges and which are not included in the decision,, are not part of
the record before the Board unless appended to the exceptions or opposi-
tion thereto which the party files with the Board. Failure to append to
the submission to the Board copies of evidence timely submitted to the
submission to the Regional Director shall preclude a party from relying
upon that evidence in any subsequent related unfair labor practice pro-
ceeding.