St. Francis Hospital, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1987

282 N.L.R.B. 950 (N.L.R.B. 1987)

950 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
St. Francis Hospital , Inc. and St. Francis Federation
of Nurses and Health Professionals, affiliated
with the Wisconsin Federation of Nurses and
Health Professionals , affiliated with the Ameri-
can Federation of Teachers , AFL-CIO, Peti-
tioner . Case 30-UC-230
4 February 1987
DECISION ON REVIEW AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 1.9, August 1985 the Acting Regional Direc-
tor for Region 30 of the National Labor Relations
Board issued a decision and order clarifying unit in
this proceeding. In his decision, the Acting Region-
al Director concluded that the unit should be clari-
fied to include registered nurses who are employed
in the Employer's Internal Float Pool (IFP).
Thereafter, in accord with Section 102.67 of the
Board's Rules and Regulations, the Employer filed
a timely request for review of the Acting Regional
Director's decision, and the Union filed a statement
in opposition. The Employer contended, inter ilia,
that the IFP registered nurses are not an accretion
to the existing unit; that a unit clarification proce-
dure is inappropriate to add approximately 100 em-
ployees to a unit of 240 employees; and that the
Union had agreed to exclude IFP registered nurses
from the unit by agreeing to certain unit-descrip-
tion language in the parties' collective-bargaining
agreement. The Union contended that the IFP
nurses are included in the unit as regular part-time
registered nurses, that it never has agreed to ex-
clude these nurses from the unit, and that the inclu-
sion of the IFP nurses in the unit is consistent with
the agreement's unit-description language and con-
sistent with the Board's unit description in its 1979
direction of election. On 10 February 1986 the
Board granted the Employer's request for review
with respect to whether accretion is proper in light
of the unit description in the parties' collective-bar-
gaining agreement.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the entire record in this
case and makes the following findings.
1. The Employer, a Wisconsin corporation, pro-
vides acute health care services at its hospital locat-
ed in Milwaukee, Wisconsin. The parties stipulated
that the Employer is engaged in interstate com-
merce and that during the past calendar year, a
representative period, the Employer derived gross
revenues in excess of $250,000; and during the
same period of time purchased and received goods
valued in excess of $50,000 directly from points lo-
cated outside the State 'of Wisconsin. The parties
also stipulated that the Petitioner is a labor organi-
zation within the meaning of the Act.
On these facts, we find that the Employer is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
2. Pursuant to the Board's Decision and Order in
St. Francis Hospital, 263 NLRB 834 (1982), enfd.
729 F.2d 844 (D.C. Cir. 1984), the Union became
the exclusive collective-bargaining representative
of the employees in the following unit.I
All full-time and regular part-time registered
nurses employed by the Employer including
graduate nurses, infection control coordinator,
utilization review coordinator, home care co-
ordinator, diabetes center nurses, certified reg-
istered nurse anesthetists and staff development
coordinators, excluding guards and supervisors
as defined in the Act, and all other employ-
ees.2
The parties began bargaining in 1985 for their
first collective-bargaining agreement .3 During ne-
gotiations, a dispute arose concerning the inclusion
of the IFP registered nurses in the unit. The Em-
ployer took the position that the IFP nurses "work
only as called and needed" and that they therefore
were not included in the unit; the Union took the
position that they were "regular part-time" em-
ployees and were included. The parties each set
out their respective positions in writing in March
in an exchange of letters. The Union's letter indi-
cated that "our agreement to the wording of the
NLRB certification in no way should be interpret-
ed as an agreement to any Hospital position that
those employees are excluded from the unit."4
' The Union did not receive a majority of the valid ballots cast in an
election conducted on 26 October 1979. The Board, however, determined
in S. Francis Hospital, supra at 836-837, that the unfair labor practices
committed by the Employer were such "that a bargaining order, rather
than another election would best protect employee sentiment as indicated
by the authorization cards "
2 At the time of the 1979 election, the Employer employed full-time
and part-time registered nurses in a float pool, which differed in certain
respects, not material here, from the present IFP, which was instituted in
1982 and which comprises part-time registered nurses and other classifi-
cations not at issue The part-time nurses employed in the float pool in
existence in 1979 were eligible to vote in the election. The Employer
contends that its present IFP differs from its earlier float pool, however,
the only difference explicated with respect to the registered nurses is that
the earlier float pool included both full-time and part-time registered
nurses The present IFP no longer includes full-time registered nurses,
but we note that both pools included part-time registered nurses.
3 Hereafter, all dates refer to 1985 unless noted otherwise
4 It is clear from the context of the letter that the reference to the
"NLRB certification" refers to the contract's language setting out the
bargaining unit
282 NLRB No. 125
ST. FRANCIS HOSPITAL
The parties continued bargaining and thereafte'r'
reached agreement on 10 April; the agreement,
however, was not executed until 10 May. In the in-
terim, the parties 'discussed their respective posi-
tions regarding the dispute about the unit place-
ment 'of the IFP nurses. The Employer's vice presi-
dent of personnel McCormick testified that the
Employer then considered not signing the agree-
ment because of the Union's adherence to the posi-
tion that, the IFP nurses were included in the unit.
Following advice of counsel, however, the Em-
ployer on 10 May did execute the agreement. The
Union filed the unit clarification petition on 27
June.
Section 1.01 of the parties' agreement lists classi-
fications of employees in the bargaining,unit and is
consistent with the unit description set out in the
Board's Decision and Order of 1982 noted above.
Section 1.01 specifically states, as did the Board's
earlier Decision and Order, that the unit includes
"all full-time and regular part-time registered
nurses." Section 2.03 of the agreement, however,
defines a "regular part-tine" employee as being
"an employee who is normally scheduled to work
40 hours or more but less than 80, hours in a two-
week pay period." As noted earlier, the Employer
argues that by agreeing to the language of section
2.03, the Union has agreed to the exclusion of the
IFP nurses from the unit. In this'regard, the Em-
ployer notes that the IFP nurses are not regular
part-time registered nurses as that term is defined
in the collective-bargaining agreement.5
The Board generally declines to clarify bargain-
ing units midway in the term of an existing collec-
tive-bargaining agreement that clearly defines the
bargaining unit. Wallace-Murray Corp., 192 NLRB
1090 (1971): To do otherwise, the Board has held,
would be unnecessarily disruptive of an established
bargaining relationship. San Jose Mercury & San
Jose News, 200 NLRB 1Q5 (1972); Wallace-Murray,
above. In some limited circumstances, however,
the Board finds the interests of stability are better
served by entertaining a unit-clarification petition
during the term of a contract. Thus, where the par-
ties cannot agree on whether a disputed classifica-
tion should be included in the unit but do not wish
to press this issue at the expense of reaching an
agreement, the Board will entertain a petition filed
shortly after the contract is executed, absent an in-
5 The IFP nurses average fewer hours than those specified for "regular
part-time" employees in sec. 2 03. They are assigned their work hours by
the Employer's assistant director of nurses based on their submission to
her of a 'monthly calendar indicating their availability for work The IFP
nurses are required to, work at least four 8-hour shifts per month; howev-
er, on average, they work about 2 days a week According to the Em-
ployer's rules and regulations for the IFP, nurses will be terminated if
they should cancel accepted, prescheduled assignments three times within
a 6-month period.
951
diaca ion `that` the petitioner abandoned its request in
exchange for some concession in negotiations.
WNYS-TV (WIXT), 239 NLRB 170 (1978); Massey-
Ferguson, Inc., 202 NLRB 193 (1973).
Based on substantial record' evidence establishing
that the Union did not waive the inclusion of the
IFP registered nurses in the unit when it agreed to
the contract, we disagree with the Employer's con-
tention that the contract language noted above
now precludes their inclusion in the unit through a
unit clarification petition. In this regard, we note
that the Union 'advised Employer during negotia=
tions that it considered the IFP nurses to be regu-
lar part-time employees included in the unit. The
Union preserved its position in its -March letter to
the Employer. Moreover, it is clear that the Union
did not abandon its position but reiterated during
discussions with the Employer prior to the agree-
ment's execution that, in its view, the IFP nurses
were included under the contract.' The testimony
of the Employer's vice president McCormick estab-
lishes that the Employer itself did not believe that
the Union, in agreeing to the contract language,
also agreed to the exclusion of these nurses from
the unit. In fact, the Employer, very much aware
of the continuing dispute with the 'Union over the
issue, considered not executing the agreement be
cause of the Union's position. It is thus clear that
the parties signed the agreement despite their ac-
knowledged disagreement over this matter. More-
over, the Union filed the instant petition shortly
after the agreement was executed. Accordingly,
and since the record is devoid of any evidence that
the Union at any time abandoned its position in ex-
change for bargaining concessions, we find that the
Petitioner's decision to execute the agreement does
not preclude finding that the IFP registered nurses
are in the unit. WYNS-TV, above; Massey Ferguson,
above.
We note, furthermore, that section 1.01 of the
agreement describes the unit as including, inter alia,
"regular part-time registered nurses" and, in this
respect, is identical to the unit description in the
earlier representation case and in the Board's subse-
quent bargaining orders As noted above, the part-
time registered nurses in the float pool voted in the
election. As also noted above, the Employer has
not shown that the current IFP nurses differ in any
material respect from the nurses employed in the
earlier float pool. While section 2.03 of the agree-
ment defines "regular part-time" employees in a
fashion which would, by implication, exclude the
6 It is clear that the IFP nurses meet the Board's standard for "regular
part-time" registered nurses as set forth in the unit description in the 1979
election. Newton- Wellesley Hospital, 219 NLRB 699, 703 (1975)
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IFP nurses, this section , which does not refer to
IFP nurses , does not expressly exclude them, and
the Union expressly and continuously declined to
agree that the contract required their exclusion. In
this light, the import of section 2.03 is unclear.
Thus, as distinguished from Consolidated Papers v.
NLRB, 670 F.2d 754 (7th Cir. 1982), relied on by
the Employer, it cannot be said that the Union
agreed to contract language which clearly modifies
the bargaining unit to exclude the IFP registered
nurses . We find that the clarification question may
be properly considered and that the IFP registered
nurses are included in the unit by the terms of the
unit description .? We find moreover that the IFP
registered nurses have ' a sufficient community of in-
terest with the other employees to warrant their in-
clusion in the unit under accretion principles.8
The record shows that the' Employer 's assistant
director of nursing hires, schedules, and disciplines
the IFP registered nurses . The Employer 's other
registered nurses are hired and disciplined by their
respective unit nurse managers . The IFP nurses
report to a unit nurse manager or supervisor, who
assigns them their duties , while other registered
nurses have regular unit assignments . Both groups
of nurses perform nursing duties in generally the
same nursing units under the same on -unit clinical
supervision . Both groups fill out timecards and
wear St ., Francis ID tags . Both groups undergo a
similar orientation , but the IFP orientation is gener-
ally shorter. The IFP nurses ' wage rate ( 12.38 per
hour) is generally higher than that of the other
nurses, which ranges from $9.20 to $12.99 per
7 As further distinguished from Consolidated Papers, we also note the
absence of any other considerations which would warrant dismissal of
the petition Thus, the petition was filed shortly after the execution of the
agreement, not midterm ; and as the parties were bargaining for their first
agreement, they have not "historically" excluded the IFP nurses from the
unit. Thus, our entertaining of the petition will not disrupt the parties'
bargaining relationship We further note that ' in Consolidated Papers, the
court specifically noted that there, unlike here, the facts did not fall
within the exception to Wallace-Murray established in WNYS-TV and
Massey-Ferguson, as discussed above
s The Acting Regional Director , in concluding that the unit should be
clarified to include the IFP registered nurses inappropriately applied the
"disparity of interests" test set out in St. Francis Hospital, 271 NLRB 948
(1984) We note that the disparity -of-interests test is applicable when de-
termining the scope of the unit (i e, which job classification should be
placed in the unit ), not, as in the instant case, when determining whether
specific groups of employees fall within the unit scope which has already
been determined We do note, however, that there may be some circum-
stances in which a unit clarification case may raise the unit proliferation
concerns addressed in St. Francis and, in that event, the disparity-of-inter-
ests test properly would be applied Member Johansen finds no need to
address this possibility
Because Member Stephens believes that unit clarification determinations
can sometimes implicate the same unit proliferation concerns that unit
scope determinations do, he does not agree that the "disparity of interest"
test applies only in original determinations of unit scope His reservation
on this point does not, however , preclude his agreement with the result
in this case Where, as here, a particular group of employees is found to
possess a community of interest with the other employees in the unit con-
cerned, it would follow a fortiori that they should be included in that
unit if a disparity-of-interests test were to be applied
hour. Other than a cafeteria discount, the IFP
nurses do not receive any of the fringe benefits re-
ceived by the other registered . nurses . The IFP
nurses are not formally evaluated and they receive
wage increases when there is a general wage ad-
justment for the Employer's unrepresented employ-
ees. The other registered nurses are evaluated an-
nually, and their evaluations affect their pay rates.
There have been transfers between the IFP and
the regular staff of registered nurses ; however, a
transfer requires termination from the former posi-
tion with no carryover of seniority . IFP nurses can
fill in for the other registered nurses with the Em-
ployer's approval . As noted earlier , the IFP nurses
have flexibility in scheduling their working days in
that their hours are scheduled based on their sub-
mission of a calendar showing their availability;
however, of the mandatory four shifts per month
which IFP nurses are required to work , two must
be weekend shifts, and IFP nurses must work two
holidays per year . Moreover, IFP nurses who
cancel accepted prescheduled assignments three
times within a 6-month period will be terminated
from the IFP.
Based on the above , we find that the IFP regis-
tered nurses share a substantial community of inter-
est with the Employer 's full-time and other part-
time registered nurses and that it is appropriate that
they ' be included in the unit . We particularly note
that the IFP nurses perform the same nursing
duties in the same nursing units alongside the Em-
ployer's other registered nurses . While the IFP
nurses do not share the same fringe benefits and
they have a degree of flexibility in setting their
hours, we find that this does not detract, from the
substantial community of interest they share with
the other registered nurses . Milwaukee Childrens
Hospital Assn., 255 NLRB 1009, 1014 (1981).
Accordingly , we shall clarify the unit to include
the registered nurses in the Internal Float Pool.9
The following constitutes a unit appropriate for
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All full-time and regular part-time registered
nurses employed by the Hospital including
graduate nurses, infection control coordinator,
utilization review coordinator (now called
DRG Coordinator), home care coordinator,
diabetes center nurses , certified registered
nurse anesthetists , staff development coordina-
9 Contrary to the Employer's contention that it is inappropriate to ac-
crete some 90 to 100 employees to an existing unit of approximately 240
employees, neither the number nor the ratio of employees to the existing
unit, in itself, precludes their accretion See, e.g., Southwestern Bell Tele-
phone Co, 254 NLRB 451 (1981 ); Public Service Co. of New Hampshire,
190 NLRB 350 (1971).
ST. FRANCIS HOSPITAL 953
tors and registered nurses in the Internal Float
Pool; excluding guards and supervisors as de-
fined in the Act, and all other employees.
ORDER
It is ordered that the petition for unit clarifica-
tion is granted and that the unit is clarified to in-
clude individuals classified as registered nurses in
the Internal Float Pool.