St. Luke's Memorial Hospital

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1431 (N.L.R.B. 1985)

ST LUKE'S HOSPITAL
St. Luke's Memorial Hospital and Licensed Practi-
cal Nurses Association of Washington , Petition-
er. Case 19-RC-10590
29 March 1985
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 November 1982 the Regional Director for
Region 19 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding in which he
found appropriate a unit of all licensed practical
nurses and graduate practical nurses employed by
the Employer at its Spokane, Washington facility,
excluding all other technical employees, profession-
al employees, office clericals, service and mainte-
nance employees, confidential employees, guards
and supervisors as defined in the Act, employees
represented by other labor organizations, and all
other employees.
On 16 November 1982 the Employer requested
review of the Regional Director's unit determina-
tion. On 30 November 1982 the Board denied
review of the Regional Director's Decision and Di-
rection of Election. An election was held 9 Decem-
ber 1982, and the tally of ballots showed that, of
approximately 55 eligible voters, 41 cast valid bal-
lots for and 4 against the Petitioner; there was I
nondeterminative challenged ballot. On 17 Decem-
ber 1982 the Petitioner was certified as the exclu-
sive collective-bargaining representative of the em-
ployees in the above unit. Thereafter, the Employ-
er refused to bargain with the Petitioner.
Upon a charge filed by the Union 10 January
1983 in Case 19-CA-15323, the General Counsel of
the National Labor Relations Board issued a com-
plaint 24 January 1983 against the Employer, alleg-
ing that it violated Section 8(a)(5) and (1) of the
National Labor Relations Act. The Employer filed
an answer, contending that the unit was inappropri-
ate. On 14 February 1983 the General Counsel
filed a Motion for Summary Judgment. On 23 Feb-
ruary 1983 the Board issued a Notice to Show
Cause why the motion should not be granted. The
Employer filed a response. On 10 September 1984
the Board denied the Motion for Summary Judg-
ment and remanded the proceeding for the Region-
al Director's further consideration consistent with
the Board's recent Decision and Order in St. Fran-
cis Hospital, 271 NLRB 948 (1984), including, if
necessary, a reopening of the record in the repre-
sentation case and issuing by the Regional Director
of a supplemental decision, if appropriate. Thereaf-
ter, the parties informed the Region that they did
1431
not wish to submit additional evidence. The Em-
ployer submitted a supplemental brief.
On reconsideration the Regional Director issued
a supplemental decision 31 October 1984 in which
he concluded that the petitioned-for unit of li-
censed practical nurses and graduate practical
nurses (LPN unit) continues to be an appropriate
unit and that the Certification of Representative
was properly issued.
In accordance with Section 102.67 of the Board's
Rules and Regulations, the Employer filed a timely
request for review of the Regional Director's sup-
plemental decision, alleging that the Regional Di-
rector's unit determination is a substantial depar-
ture from Board precedent and the Board's remand
Order in that the smallest appropriate unit must
consist of all technical employees.
By telegraphic order dated 2 January 1985 the
Board granted the request for review.
The Board has reviewed the entire record in this
case and makes the following findings.
The Employer, a Washington corporation, pro-
vides health care at its hospital in Spokane, Wash-
ington, and employs approximately 450-500 em-
ployees in various classifications.
In his 9 November 1982 Decision and Direction
of Election, the Regional Director concluded that,
although an LPN unit is generally inappropriate
absent special circumstances, the petitioned-for
LPN unit was nevertheless appropriate because of
a separate bargaining history. The separate bargain-
ing history relied on by the Regional Director
began in 1967 when, at the suggestion of the hospi-
tal administrator, the St. Luke's Hospital Licensed
Practice Nurses' Group (LPNG) was organized.
The LPNG's constitution established a conference
committee to negotiate with the St. Luke's adminis-
tration and serve as a grievance committee. The
Employer then voluntarily recognized the confer-
ence committee as the bargaining representative of
its licensed practical nurses (LPNs) and graduate
practical nurses (GPNs).' Thereafter, the Employ-
er and the conference committee entered into a
series of labor agreements covering LPNs and
GPNs, the most recent of which expired 31 De-
cember 1982.
On remand, the Regional Director analyzed the
unit question in light of St. Francis' disparity-of-in-
terests test, and concluded that the petitioned-for
unit would be inappropriate as the record is replete
with evidence indicating that there are no "sharper
than usual differences" between the wages, hours,
and working conditions of the requested employees
' GPNs are newly graduated nurses who have not yet passed the writ-
ten exam required by state law for LPNs
274 NLRB No. 202
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and those of the technical employees However,
the Regional Director also found that the Board in
St. Francis did not address the issue of past bargain-
ing history in light of the disparity of interests test.
According to the Regional Director, the only ref-
erence to past bargaining history in St. Francis is in
the Board's quotation of Senator Williams' attempt
to clarify Congress' admonition to the Board:
While the Board has, as a rule, tended to avoid
an unnecessary proliferation of collective bar-
gaining units, sometimes circumstances require
that there be a number of bargaining units
among nonsupervisory employees, particularly
where there is such a history in the area or a
notable disparity of interests between employ-
ees in different job classifications .2
The Regional Director therefore concluded that, in
the absence of any contrary indication from the
Board, past separate bargaining history continues
to be a relevant and controlling factor in unit de-
terminations in the health care field. Accordingly,
the Regional Director found that bargaining histo-
ry constitutes a special circumstance which war-
rants a unit determination which might otherwise
be inappropriate Lancaster Osteopathic Hospital,
246 NLRB 600 (1979); St. Joseph Hospital, 219
NLRB 892 (1975).
We disagree. The petitioned-for unit is clearly in-
appropriate. Although bargaining history is a factor
which may be considered in making unit determi-
nations in the health care industry, it is not control-
ling under St. Francis. Contrary to the Regional
Director's assertion, St. Francis does address bar-
gaining history in light of the disparity of interests
test The Board stated (271 NLRB at 953):
[T]he appropriateness of the petitioned-for unit
is judged in terms of normal criteria'35 but
sharper than usual differences (or "disparities")
between the wages, hours, and working condi-
tions, etc., of the requested employees and
those in an overall professional or nonprofes-
sional unit must be established to grant the
unit
'' The Board evaluates employees' wages, hours, and working
conditions, qualifications, training, and skills, frequency of contact
and degree of interchange with other employees, frequency of
transfer to and from the petitioned-for unit, commonality of super-
vision, degree of integration with the work functions of other em-
ployees, area practice and patterns of collective bargaining, and
collective-bargaining history [Emphasis added ]
Thus, the Board found bargaining history to be rel-
evant, but not controlling, in that it is to be consid-
ered along with all the other relevant factors in de-
2 St Francis, supra at 951
termining whether under the disparity of interests
test a unit is appropriate in the health care indus-
try. Accordingly, the Regional Director's finding
that bargaining history alone continues to consti-
tute a special circumstance by which a health care
unit may be found appropriate is erroneous.
Moreover, the cases relied on by the Regional
Director not only preceded St. Francis, but are dis-
tinguishable. Although the Board in Lancaster,
supra, stated that in the health care industry, absent
special circumstances such as a stipulation of the
parties, existing separate representation, or separate
bargaining history, LPNs should be included in a
bargaining unit of all technical employees, there
was no existing separate representation or separate
bargaining history present in the case. Thus, the
statement on which the Regional Director relied is
merely dicta, as separate bargaining history was
not an issue . In St. Joseph, supra, although the
Board based its unit determination solely on the
parties' bargaining history, here the parties current-
ly before the Board are not the same parties who
originally established the LPN unit and met at the
bargaining table Thus, in this case, there is no his-
tory of continuous and harmonious bargaining be-
tween the parties which would be disturbed by a
different unit finding. Accordingly, even if past
bargaining history were controlling, reliance on
such history here would be improper. North Memo-
rial Medical Center, 224 NLRB 218 (1976).
The Regional Director conceded that the LPN
unit is inappropriate under the disparity-of-interests
test. We have examined the record and we agree
with the Regional Director that there are no
"sharper than usual" differences between the LPNs
and other technical employees. Accordingly, we
shall vacate the Certification of Representative
issued by the Regional Director 17 December
1982.
At the October 1982 hearing in this case, the Pe-
titioner stated that, if the Regional Director found
appropriate a unit larger than LPN only, it would
be willing to represent the larger unit. The Em-
ployer stated at the hearing that either a technical
or a nonprofessional unit is appropriate. However,
we are unable to make a determination of whether
a technical or a nonprofessional unit is appropriate
as the record does not contain any evidence re-
garding nonprofessional employees other than
LPNs and technical employees. In view of his con-
clusion that an LPN unit was appropriate, the Re-
gional Director found it unnecessary to reopen the
record to adduce evidence regarding other nonpro-
fessional employees Accordingly, we shall remand
the case to the Regional Director for further pro-
ceedings. In the event the parties are unable to stip-
ST LUKE'S HOSPITAL
ulate to an appropriate unit, the Regional Director
shall direct a hearing for the purpose of adducing
evidence as to the appropriate unit . The Regional
Director shall then issue a supplemental decision
and direction of second election in which he shall
determine whether a technical or nonprofessional
unit is appropriate in light of St. Francis, supra.3
1433
ORDER
The Certification of Representative issued by the
Regional Director on 17 December 1982 is vacat-
ed.
The case is remanded to the Regional Director
for Region 19 for further proceedings consistent
with this Decision on Review and Order.
S We also note that the parties are in dispute as to the technical status
of a number of employee classifications