Teamsters Local 996 (Kapiolani Medical)

National Labor Relations Board - Board Decisions

Feb 24, 1984

268 N.L.R.B. 1071 (N.L.R.B. 1984)

TEAMSTERS LOCAL 996 (KAPIOLANI MEDICAL)
Hawaii Teamsters and Allied Workers Union, Local
996, IBT and Kapiolani/Children's Medical
Center & Hawaii Nurses Association. Case 37-
CD-41
24 February 1984
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The charge in this Section 10(k) proceeding was
filed 19 August 1983 by the Employer, alleging
that the Respondent, Hawaii Teamsters and Allied
Workers Union, Local 996, IBT, herein called
Local 996, violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Em-
ployer to assign certain work to employees it rep-
resents rather than to employees represented by
Hawaii Nurses Association, herein called HNA.
The hearing was held 19 September 1983 before
Hearing Officer Edward J. Parnell.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
I. JURISDICTION
The Company, a Hawaii corporation, is engaged
in the provision of acute care specialty services in
obstetrics, gynecology, and pediatrics at its facility
in Honolulu, Hawaii, where, in calendar year 1982,
it received total revenues in excess of $1 million.
During the same period, it purchased and received
goods and materials valued in excess of $1 million,
directly or indirectly, from points located outside
the State of Hawaii. The parties stipulated, and we
find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that Local 996 and the HNA are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Work in Dispute
The disputed work, which was stipulated to by
the parties, involves the assignment of second call
for support personnel in the afterhours adult oper-
ating room at Kapiolani/Children's Medical
Center.
268 NLRB No. 160
B. Background and Facts of Dispute
The Employer operates a 260-bed medical facili-
ty in Honolulu, Hawaii. It is the only hospital in
the State specializing in obstetrics, gynecology, and
pediatrics. The HNA represents all registered
nurses employed at the hospital. Local 996 repre-
sents employees in a service and maintenance unit
which includes operating room technicians.
"Second call," the work in dispute, is an aspect
of the Employer's staffing arrangement for the af-
terhours adult operating room at the hospital. Af-
terhours surgery involves "emergency" or "emer-
gent" surgery; i.e., surgery that is performed in re-
sponse either to a life-threatening situation or to a
situation which, while not potentially fatal, requires
immediate attention. When off-duty employees are
"on call," they are required to be available on a
standby basis for duty in the operating room.
The Employer has traditionally utilized two em-
ployees for its oncall schedule. For at least the last
12 years, registered nurses qualified in operating
room procedures have been formally designated,
and exclusively used, for first call pursuant to a re-
quirement of the Joint Commission on Accredita-
tion of Hospitals. Registered nurses on first call re-
ceive a standby wage differential, currently $2.50
per hour. Prior to March 1982, the procedure for
second call was informal and not limited to regis-
tered nurses: a list of qualified registered nurses
would be consulted; if none of the nurses was
available or willing to serve on second call, an
available operating room technician would be
called in. There was no standby pay differential for
second call.
In March 1982, the Employer decided to formal-
ize the second call designation. This decision was
necessitated by two occurrences. First, a complaint
was made by a surgeon following an operation in
the afterhours adult operating room: the surgeon
had been unable to get either a registered nurse or
an operating room technician to serve on second
call. Second, the afterhours operating room loca-
tion was moved to an area of the hospital where
support personnel from other departments were not
readily available in the event of an unforeseen
emergency. The Employer determined that, for
reasons of economy and efficiency, the employees
to be formally designated for second call would be
registered nurses, not operating room technicians.
This matter was bargained with the HNA; it was
agreed that the new formal second call status
would be supported by a wage differential equal to
that for first call.
When the new second call procedure was imple-
mented in March 1982, the union then representing
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the operating room technicians, the United Public
Workers, did not file a grievance. In July 1982,
Local 996 displaced the UPW as the bargaining
representative of the technicians. In subsequent
contract negotiations the Employer, for reasons
which are not satisfactorily explained in the record,
agreed to give second call, with a wage differential
of $2 per hour, exclusively to the operating room
technicians. This latest second call procedure was
included as a part of the collective-bargaining con-
tract signed in December 1982; the Employer im-
plemented the procedure in January 1983.
The HNA filed a grievance concerning its loss of
second call designation, and the grievance proceed-
ed to arbitration. In May 1983, the arbitrator issued
a decision awarding second call to the registered
nurses exclusively, as required by the agreement
between the HNA and the Employer in March
1982. Local 996 did not participate in the arbitra-
tion hearing, and the arbitrator's decision did not
formally consider the effect of Local 996's agree-
ment with the Employer in December 1982. In
compliance with the arbitration award, the Em-
ployer switched back to utilizing registered nurses
exclusively in August 1983.
C. Contentions of the Parties
The Employer and the HNA contend that the
Employer is contractually bound by its March 1982
agreement to utilize registered nurses for second
call. The Employer further contends that the use of
registered nurses for second call is supported by
the superior skills of registered nurses, by greater
efficiency and economy of operation, and by its
own preference.
Local 996 contends that the Employer is con-
tractually bound by its December 1982 agreement
to use operating room technicians for second call.
It further contends that, in threatening to picket
the Employer's premises, it is lawfully enforcing its
collective-bargaining contract with the Employer,
and that, therefore, there is no reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
Local 996 finally contends that, even if it assumed
that the Board has the jurisdictional authority to
decide this dispute, the Board cannot resolve the
matter properly without evidence of the practice of
other hospitals in the area concerning off-hours op-
erating room staffing procedures.
D. Applicability of the Statute
By letter dated 17 August 1983, Arthur Rut-
ledge, president of Local 996, informed the Em-
ployer's director of personnel of the Union's inten-
tion to picket the Employer's premises due to the
Employer's assignment of second call work to the
registered nurses.'
At the hearing, the Employer and Local 996
stipulated that there was no method agreed upon
by all parties for voluntary adjustment of the dis-
pute. While the HNA refused to join in this stipula-
tion, it offered no evidence to demonstrate the ex-
istence of an alternative, voluntary resolution pro-
cedure which would be binding on all parties.
Based on the foregoing, we find reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred and that there exists no agreed method
for voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly,
we find that the dispute is properly before the
Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various factors. NLRB v. Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U.S. 573
(1961). The Board has held that its determination in
a jurisdictional dispute is an act of judgment based
on common sense and experience, reached by bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
I. Collective-bargaining agreements
As set out above, each of the Unions contends
that the work in dispute is specifically covered by
the terms of its agreement with the Employer. On
review of the respective contracts and the sur-
rounding circumstances, we find that both the reg-
istered nurses and the operating room technicians
have valid contractual claims to the disputed work.
Accordingly, we conclude that this factor favors
assignment of the work to neither party; in effect,
the conflicting contractual claims neutralize each
other. Iron Workers Local 8 (PPG Industries), 267
NLRB No. 122 (Aug. 26, 1983); NLRB v. Graphic
Arts Union No. 1P, 600 F.2d 336 (2d Cir. 1979).
2. Past practice
The record shows that, prior to March 1982, the
Employer's theoretical procedure for assignment of
I We note Local 996's contention that its threat to picket for the pur-
pose of enforcing its collective-bargaining agreement with the Employer
is lawful activity, and therefore does not constitute reasonable cause to
believe that Sec. 8(bX4XD) has been violated. However, we also recog-
nize that the HNA's claim to the disputed work is at least as valid under
the terms of its agreement with the Employer. Given these circum-
stances, we find that the reasonable cause standard has been met.
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TEAMSTERS LOCAL 996 (KAPIOLANI MEDICAL)
second call was to exhaust the list of available reg-
istered nurses before designating an operating room
technician. In practice, it is apparent that the tech-
nicians often served on second call, as the listed
registered nurses were frequently unavailable or
unwilling to serve. After the Employer formalized
the second call procedure, and added a pay differ-
ential, it utilized registered nurses exclusively from
March 1982 until early January 1983. At that time,
its agreement with Local 996 having been finalized,
the Employer began to use the technicians exclu-
sively for second call. In August 1983 the Employ-
er, in implementing the arbitrator's directive,
switched back to the exclusive use of registered
nurses.
Based on these patterns, we find that, at first, the
Employer's scheduling practice was not predeter-
mined in favor of the registered nurses or operating
room technicians; then, after March 1982, its prac-
tice swayed back and forth, depending on the
labor-management exigencies of the moment. We
conclude that the Employer's past practice does
not favor an award of the disputed work to either
party.
3. Area practice
Local 996 contends that the present dispute
cannot be properly decided without consideration
of the off-hours operating room staffing procedures
in other hospitals in the area. However, it failed to
offer evidence of such practice when given the op-
portunity at the hearing.
The Employer's position is that Kapiolani/-
Children's Medical Center offers specialized surgi-
cal facilities and services in obstetrics and gynecol-
ogy, and that it has the only off-hours operating
room in the State functioning on this basis. Under
these circumstances, we agree with the Employer
that no relevant evidence of area practice is avail-
able and, thus, it is not a factor in this proceeding.
4. Relative skills
Following comprehensive instruction, registered
nurses are licensed by the State of Hawaii. After a
special training course in surgical procedures,
qualified registered nurses are assigned to the hos-
· ital's operating rooms. Their duties in relation to
-surgical care include the legal responsibility to ac-
count for surgical instruments, preoperative and
postoperative evaluation of patients' status, admin-
istering drugs, IVs, and resuscitation, keeping pa-
tients' records, and generally ensuring a high qual-
ity of patient care.
Operating room technicians are given between 8
and 18 months of training, depending on the loca-
tion of the training facility. Their duties do not in-
clude direct patient care. They are responsible for
opening the operating room, arranging the proper
instruments on the surgeon's tray, passing the in-
struments to the surgeon during an operation, and
cleaning up the operating room following surgery.
In short, while a registered nurse is able to per-
form all the functions of a technician, the techni-
cian is not qualified to perform all the duties of a
registered nurse in the operating room. We con-
clude that, in the area of relative skills, the regis-
tered nurses are clearly more qualified to meet the
potential requirements of the work involved on
second call.
5. Economy and efficiency of operations and
the Employer's preference
There was uncontroverted testimony that the ex-
clusive use of registered nurses on second call
would tend to guarantee the most effective surgical
care for patients in all situations. This is especially
significant where, due to unforeseen circumstances,
only one of the scheduled oncall employees ap-
pears for duty; the designation of two registered
nurses tends to assure that at least one registered
nurse will be present in the off-hours operating
room.
The Employer's preference for the exclusive use
of registered nurses is based on the analysis imme-
diately above. The Employer's medical director
stated at the hearing that the use of registered
nurses is desirable because it provides the greatest
flexibility of skills with the least number of neces-
sary personnel.
We find that the factors of economy and efficien-
cy of operation and the Employer's preference
favor an award of the disputed work to the regis-
tered nurses.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the HNA
are entitled to perform the work in dispute. We
reach this conclusion relying on the relative skills
of the two groups of employees, the Employer's
preference, and economy and efficiency of oper-
ation. In making this determination, we are award-
ing the work to employees represented by the
HNA, not to that Union or its members. The deter-
mination is limited to the controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Kapiolani/Children's Medical
Center represented by Hawaii Nurses Association
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are entitled to perform the assignment of second
call for support personnel in the afterhours adult
operating room at Kapiolani/Children's Medical
Center.
2. Hawaii Teamsters and Allied Workels Union,
Local 996, IBT, is not entitled by means proscribed
by Section 8(bX4)(D) of the Act to force
Kapiolani/Children's Medical Center to' assign the
disputed work to employees represented by it.
3. Within 10 days from this date, Hawaii Team-
sters and Allied Workers Union, Local 996, IBT,
shall notify the Regional Director for Region 20 in
writing whether it will refrain from forcing the
Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner
inconsistent with this determination.
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