St. James Hospital of Newark

National Labor Relations Board - Board Decisions

Apr 8, 1980

248 N.L.R.B. 1045 (N.L.R.B. 1980)

ST. JAMES HOSPITAL OF NEWARK 1045
St. James Hospital of Newark and District 1199-J,
National Union of Hospital & Health Care Em-
ployees, R.W.D.S.U. AFL-CIO, Petitioner.
Case 22-RC-7983
April 8, 1980
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties on Sep-
tember 5, 1979, and approved by the Acting Re-
gional Director for Region 22 on September 6,
1979, an election by secret ballot was conducted
among the employees in the stipulated unit' on Oc-
tober 17, 1979. At the conclusion of the election,
the parties were furnished a tally of ballots which
showed that of approximately 23 eligible voters 24
cast ballots, of which 8 were for, and 9 against, the
Petitioner; there were 7 challenged ballots. The
challenged ballots are sufficient to affect the results
of the election.
Pursuant to Section 102.69(c) of the National
Labor Relations Board Rules and Regulations,
Series 8, as amended, the Acting Regional Director
conducted an investigation, and on January 2, 1980,
issued his Report on Challenged Ballots in which
he recommended that the challenges to the ballots
of Joseph Reo, Laurie McCabe, and Lynn Lach be
sustained and that the challenges to the ballots of
Sister Sondrann Perrotta, Sister Josephine Pate,
Carmella Donofrio, and Divyakala Desai be over-
ruled. Thereafter, the Employer and the Petitioner
filed timely exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has duly considered the challenges,
the Acting Regional Director's report, and the ex-
ceptions, 2 and has decided to reject the Acting Re-
gional Director's recommendation to sustain the
challenges to the ballots of McCabe and Lach, and
that issues regarding the challenges to the ballots of
The unit agreed to be appropriate is:
All full time and regular part time professional employees including
pharmacists, physical therapists, occupational and recreational thera-
pists, lab technologists, utilization review nuclear medicine technolo-
gists, and social workers employed by Saint James Hospital of
Newark at its facility located at 155 Jefferson Street, Newark, New
Jersey, but excluding all office clerical employees, maintenance and
service employees, technical employees, registered nurses, licensed
practical nurses, pharmacy interns, physicians, watchmen, guards, su-
pervisors as defined in the Act and all other employees
2 In the absence of exceptions thereto. we adopt pro forma the Acting
Regional Director's recommendation that the challenge to the ballot of
Reo be sustained and the challenges to the ballots of Donofrio and Desai
be overruled, and that their ballots be opened and counted
248 NLRB No. 131
Perrotta and Pate could be best resolved by a hear-
ing.
Contrary to the Acting Regional Director, we
overrule the challenges to the ballots of McCabe
and Lach, employed in the position of utilization
review coordinators. The parties' expressed intent
is clear. The stipulation entered into by the parties
specifically included within the professional unit
the job classification of utilization review coordina-
tors. It also specifically excluded registered nurses,
which, by training, both McCabe and Lach are.
The Acting Regional Director interpreted Board
decisions as requiring that all nonsupervisory regis-
tered nurses, regardless of their employment assign-
ment, were to be included in units of registered
nurses. In St. Mary's Hospital, Inc., 220 NLRB 496
(1975), we included nurses working outside the
nurses services department in the unit, stating that,
when a unit of registered nurses is sought, it is nor-
mally appropriate to group together all registered
nurses wherever they are assigned in a hospital.
Similarly, in The Trustees of Noble Hospital, 218
NLRB 1441 (1975), we disagreed with the employ-
er's attempt to limit the registered nurse unit
sought to staff nurses only, and included special-
ized nurses working under a variety of titles, in-
cluding the utilization review coordinator, through-
out the hospital. Further, in Ohio Valley Hospital
Association, 230 NLRB 604 (1977), and Kaiser
Foundation Hospitals, 219 NLRB 325 (1975), regis-
tered nurses who were employed as nursing school
instructors and nurse anesthetists, respectively,
were held to be most appropriately included in reg-
istered nurse units rather than professional units.
Language from these cases led the Acting Regional
Director to conclude that Board policy would be
contravened by including utilization review coor-
dinators who also happen to be registered nurses in
a professional employee, nonregistered nurse unit.
While our policy with regard to unit placement
of registered nurses in directed elections has often
resulted in all nurses being grouped together, irre-
spective of their job assignments, this is because
these various employment assignments have exhib-
ited a basic tie to the nursing profession, amounting
to a community of interest. However, in cases
where no such tie to the profession can be drawn,
we have excluded certain nurses from registered
nurse units. For example, in Newton-Wellesley Hos-
pital, 219 NLRB 699 (1975), five registered nurses
employed as hospital admitting officers and a nurse
holding the position of the nursing school's admis-
sions and financial aid coordinator were excluded
from the registered nurse unit. The admitting offi-
cers performed duties that were more clerical than
nursing related, provided no direct patient care,
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had little or no regular contact with other nurses,
and were not required to be registered nurses in
order to hold their positions. While the professional
qualification as a registered nurse was not required
for the admissions/financial aid coordinator, it was
viewed by the employer as a preferential attribute.
Also, the job duties were administrative rather than
related to patient care or student training. As that
case indicates, we have not followed an unyielding
policy with regard to unit placement of registered
nurses, but rather have been guided by job func-
tions and community-of-interest criteria in making
such determinations. Therefore, the mere fact that
certain employees are registered nurses by training
does not automatically preclude them from being
represented in a unit with other professionals when
their duties are not nursing related. In any event,
none of the cases discussed above involved a stipu-
lated unit.
In the instant case, the primary duty of the utili-
zation review coordinators is to review patient
medical charts for the purpose of assessing whether
hospitalization is warranted under the Medicare
and Medicaid guidelines. No direct patient care or
contact is involved. Although the current hospital
practice is for registered nurses to fill these posi-
tions, the Professional Standard Review Organiza-
tion, by which the hospital is guided, does not re-
quire that persons filling the position be registered
nurses.
In view of the foregoing, we find that the inclu-
sion of the utilization review coordinators in the
professional unit does not contravene the Act or
our policy. The parties' own stipulation specifically
included utilization review coordinators, and there
is no ambiguity as to who may have been intended
to be included, for it appears that only the two
challenged voters fill this position. In light of our
practice in the health care industry to give effect to
parties' stipulations concerning unit designations
that are not contrary to the Act or Board policy,3
we find that McCabe and Lach should be included
in the bargaining unit of professional employees.
The challenges to their ballots are therefore over-
ruled.
We also disagree with the Acting Regional Di-
rector's recommendation to overrule Petitioner's
challenges to the ballots of Sisters Sondrann Per-
rotta and Josephine Pate, members of the Order of
the Sisters of St. Joseph of Peace. The evidence
disclosed by the investigation concerning their
3 Otis HospitaI. Inc., 219 NLRB 164 (1975).
community of interest with the lay employees and
their independence from the Employer's manage-
ment is inconclusive. Therefore, if these two ballots
are determinative after a revised tally of ballots is
prepared, their challenges will be resolved through
a hearing on the relevant issues.
Accordingly, we shall remand this proceeding to
the Regional Director for further actions consistent
with our Order.
ORDER
It is hereby ordered that the above-entitled
matter be, and it hereby is, remanded to the Re-
gional Director for Region 22 for the purposes
stated below.
DIRECTION
It is hereby directed that the Regional Director
for Region 22 shall, pursuant to the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, within 10 days from the date of this De-
cision, Order, and Direction, open and count the
ballots of Carmella Donofrio, Divyakala Desai,
Laurie McCabe, and Lynn Lach, and thereafter
prepare and cause to be served on the parties a re-
vised tally of ballots, including therein the count of
such ballots. In the event that the revised tally of
ballots shows results determinative of the election,
the Regional Director for Region 22 shall proceed
further to issue the appropriate certification.
IT IS FURTHER DIRECTED that, in the event the
revised tally of ballots shows that the remaining
challenged ballots of Sisters Sondrann Perrotta and
Josephine Pate are determinative of the election re-
sults, the Regional Director for Region 22 shall
direct that a hearing be held before a duly desig-
nated hearing officer for the purpose of receiving
evidence to resolve the issues raised with respect to
the challenges of these ballots.
IT IS FURTHER DIRECTED that the hearing officer
designated for the purpose of conducting the hear-
ing shall prepare and cause to be served on the
parties a report containing resolutions of the credi-
bility of witnesses, findings of fact, and recommen-
dations to the Board as to the disposition of said
challenges. Within the time prescribed by the
Board's Rules and Regulations, any party may file
with the Board in Washington, D.C., eight copies
of exceptions thereto. Immediately upon the filing
of such exceptions, the party filing the same shall
serve a copy thereof on the other party, and shall
file a copy with the Regional Director.