LawMemo's reason for being: We publish Employment Law Memo - summaries of latest court decisions,
|
|
|
NLRB - National Labor Relations Board |
Lee Hospital
LEE HOSPITAL
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
300 NLRB No. 131
Lee Hospital and Laurel Certified Registered Nurse Anesthetist
Associates, Petitioner. Case 6-RC-10136
DECEMBER 21, 1990
DECISION ON REVIEW AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND RAUDABAUGH
On March 29, 1989, the Regional Director for Region 6 issued a
Decision and Order in this proceeding. He found that the petitioned-for
unit of all certified registered nurse anesthetists (CRNAs) employed by
Lee Hospital (the Employer) in Johnstown, Pennsylvania, was not an
appropriate unit for collective bargaining and dismissed the
representation petition. In accordance with Section 102.67 of the
National Labor Relations Board Rules and Regulations, the Petitioner
filed a timely request for review, and the Board granted review on
August 18, 1989.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the entire record in this case, including
the briefs on review,\1\ and has decided to affirm the Regional
Director's dismissal of the representation petition.\2\ Consistent with
the principles set forth in St. Francis Hospital, 271 NLRB 948 (1984)
(St. Francis II), remanded 814 F.2d 697 (D.C. Cir. 1987), on remand 286
NLRB 1305 (1987) (St. Francis III),\3\ we adopt the Regional Director's
determination that no sharper than usual differences or disparities
exist which would justify the petitioned-for unit of Lee Hospital CRNAs,
excluding all of the hospital's other professional employees.
---------------------------------------------------------------------------
\1\The American Association of Nurse Anesthetists (AANA) filed a
brief as amicus curiae in this case.
\2\The Petitioner has requested oral argument. This request is
denied as the record and briefs adequately present the issues and the
positions of the parties.
\3\In St. Francis II, the Board held that the ``disparity-of-
interests'' standard is to be used in resolving bargaining unit
questions for health care institutions. 271 NLRB at 953. Thus, a
separate unit of health care employees is not appropriate unless the
Board concludes that sharper than usual disparities or differences have
been shown to exist with respect to the normal community-of-interest
criteria for the requested employees and those in an overall
professional or nonprofessional unit. The Board's normal community-of-
interest criteria include 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 supervision; degree of integration
with the work functions of other employees; area practice and patterns
of collective bargaining; and collective-bargaining history. 271 NLRB at
953 fn. 35. In St. Francis III, the Board reiterated the position, set
forth in St. Vincent Hospital, 285 NLRB 365 (1987), that pending
completion of the health care unit rulemaking, the Board would apply
existing law, i.e., the disparity-of-interests standard.
---------------------------------------------------------------------------
Lee Hospital is a 321-bed acute care facility with approximately
1200 employees. The CRNAs work in the anesthesia department of the
hospital. The primary function of the CRNAs is to administer anesthesia
and monitor care of the anesthesia patients in accordance with
established policies and procedures and under the direction of an
anesthesiologist or attending physician.
The anesthesia department, like all other hospital departments which
provide direct patient care, is under the immediate supervision of a
department head, who is a hospital employee, and a medical director, a
licensed physician who is not an employee of the hospital. In those
hospital departments which provide direct patient care, the department
head is responsible for administrative and personnel matters, while the
medical director is responsible for patient care matters.\4\
---------------------------------------------------------------------------
\4\Hospital President and Chief Executive Officer John Ungar
testified that various medical directors, or their professional
corporations, have individual contracts with Lee Hospital and that this
is a common arrangement throughout the hospital industry. Lee Hospital
has separate medical directors in the following departments: surgery;
medicine, internal medicine, and intensive care; coronary care;
radiology; physical medicine; medical oncology; emergency; obstetric/
gynecology; employee health laboratory; radiation oncology; and
anesthesia.
---------------------------------------------------------------------------
Chief Nurse Anesthetist Pavlosky, a stipulated supervisor, is the
department head of the anesthesia department. The medical director, Dr.
Quinn, is the president of Anesthesiology Associates, Inc. (AAI), a
professional corporation that has independently contracted with the
hospital for the operation of the anesthesia department and the recovery
room. Pavlosky reports to both Quinn and the hospital vice president of
professional services.\5\ Pavlosky is the immediate supervisor of the
CRNAs. The agreement between AAI and the hospital provides, inter alia,
that AAI is responsible for the ``organization and supervision of
personnel of the Department of Anesthesia, including (a) Submitting
recommendations regarding personnel adjustments or additions, (b)
Establishing and maintaining standards of care for Anesthesia Department
consistent with the objectives of the Hospital, the development of
procedures and routines that would provide for better utilization of
personnel and skills within the Department.''
---------------------------------------------------------------------------
\5\Lee Hospital is under the overall supervision of Ungar. Six vice
presidents report directly to Ungar, including the vice president of
professional services who is responsible for the anesthesia department.
---------------------------------------------------------------------------
The Petitioner seeks review of the Regional Director's finding that
a disparity of interests does not exist between the CRNAs and the other
hospital professional employees sufficient to justify the creation of a
separate unit for the CRNAs. However, as stated above, we adopt the
Regional Director's determination that a separate unit of CRNAs is not
appropriate. In applying the disparity-of-interests standard to the
facts of this case, the Regional Director correctly noted that although
certain differences exist between the CRNAs and the hospital's other
professional employees, all of the hospital employees, including the
CRNAs, are subject to common personnel policies and procedures\6\ and
share, for the most part, the same terms and conditions of employment,
including common fringe benefits;\7\ participate in the hospital's new
employee orientation program and periodic in-service programs; receive
the same percentage general wage increases; and are paid 4-hour minimum
call-in pay as are other patient care employees. The Regional Director
also recognized that the hospital's team approach to patient care
results in frequent and substantial interaction and contact between
CRNAs and other professional employees of the hospital.
---------------------------------------------------------------------------
\6\The hospital's employee handbook contains hospital policies
applicable to all hospital employees, including CRNAs, regarding such
matters as, inter alia, attendance, preemployment physicals, employee
complaint procedure, personal appearance, hospital rules, behavior
standards, and disciplinary action.
\7\All hospital employees, including CRNAs, receive the same health
insurance, life insurance, pension plan, annuity plan, disability income
plan, vacation, holidays, sick leave, funeral leave, and educational
assistance.
---------------------------------------------------------------------------
In its brief on review, the Petitioner argues that there exists a
sufficient disparity in wages, salaries, and working conditions of CRNAs
to warrant a finding that a separate CRNA unit is appropriate. The
Petitioner argues that, in contrast to other professional employees,
CRNAs are salaried exempt employees, guaranteed an 80-hour pay period
every 2 weeks;\8\ are required to work a 24-hour coverage shift and may
also be scheduled to work a 32-hour shift consisting of 8 hours
following 24 on-call hours; are routinely scheduled for late
coverage;\9\ do not receive premium pay for all hours of overtime worked
as do all but two professional employees of the hospital;\10\ and are
subject to being designated by the hospital as being ``absent with pay''
(AWP) or ``absent without pay'' (AWOP).\11\ The Regional Director found,
however, that the unique scheduling and overtime compensation applicable
to CRNAs is due largely to hospital and anesthesia department
requirements on how best to utilize the CRNA staff to meet patient
needs. The record shows that other hospital departments have devised a
variety of scheduling formats to provide patient care coverage.
---------------------------------------------------------------------------
\8\Other than emergency room physicians, who have a contract with
Lee Hospital, the only other salaried nonsupervisory employees of the
hospital are the director of reimbursement and the hospital accountant.
\9\Seven CRNAs are generally scheduled to work each weekday from 7
a.m. to 3:30 p.m. to provide coverage for the hospital's six operating
rooms which are normally in operation during this period. Each weekday
two of the seven CRNAs are scheduled on a rotating basis to work beyond
3:30 p.m. pursuant to the department's ``first late/second late''
system. The CRNA designated as ``first late'' is required to work past
3:30 p.m. if any surgery is still in progress. The designated ``second
late'' CRNA is required to work if needed and carries a paging device
when she leaves the hospital following the end of her shift so that she
may be contacted if necessary to report back to work in emergency
situations.
\10\The director of reimbursement and the hospital accountant are
the only other professional employees not paid time-and-a-half for hours
worked over 40 hours a week. CRNAs do not receive premium pay for
overtime work resulting from the ``first late/second late'' system. The
scheduled 24-hour shift which CRNAs are required to work every 2 weeks
is included in the 80-hour guarantee and is not compensated at premium
pay.
\11\When fewer CRNAs than the number originally scheduled to work
are needed to report due to an abbreviated operating room schedule,
Pavlosky, after consultation with Quinn, determines who will be
instructed not to report and whether the absence from work will be with
or without pay.
---------------------------------------------------------------------------
The Petitioner also argues that AAI is a joint employer with Lee
Hospital of the CRNAs and that this relationship further evidences the
disparity of interests that exists between CRNAs and other professional
employees. The Regional Director found it unnecessary to pass on the
issue of whether AAI is a joint employer of the CRNAs, based on his
finding that ``the relationship existing between AAI and the CRNAs does
not compel the conclusion, even when considered in conjunction with the
other factors relied upon by the Petitioner in support of its disparity-
of-interests contentions and particularly in view of the congressional
admonition against undue proliferation of units in the health care
industry, that the petitioned-for unit of CRNAs is appropriate for
collective bargaining purposes.''
We conclude, contrary to the Regional Director, that the joint
employer issue must be resolved to determine whether a separate CRNA
unit is appropriate, not because the issue is determinative with respect
to the disparity-of-interests analysis, but because, as a general rule,
the Board does not include employees in the same unit if they do not
have the same employer, absent employer consent.\12\ Thus, if AAI is a
joint employer, the CRNAs could be included in the unit with other
professionals employed by Lee Hospital only with the hospital's consent.
It is clear that Lee Hospital does not consent to such an arrangement.
---------------------------------------------------------------------------
\12\See Greenhoot, Inc., 205 NLRB 250 (1973), in which the Board
refused to establish a multiemployer unit absent a showing that the
employers involved had expressly conferred on a joint bargaining agent
the power to bind them in negotiations or that they had by an
established course of conduct unequivocally manifested a desire to be
bound in future collective bargaining by group rather than individual
action. 205 NLRB at 251.
---------------------------------------------------------------------------
The appropriate standard for determining joint employer status is
whether two separate entities share or codetermine those matters
governing the essential terms and conditions of employment. Further, to
establish such status there must be a showing that the employer
meaningfully affects matters relating to the employment relationship
such as hiring, firing, discipline, supervision, and direction. TLI,
Inc., 271 NLRB 798 (1984); Laerco Transportation, 269 NLRB 324 (1984).
In examining the relationship between AAI and Lee Hospital, we find that
AAI does not possess sufficient control over the essential terms and
conditions of employment of the CRNAs to establish that it is a joint
employer.
In its brief on review, the Petitioner argues that the following
factors establish that AAI is a joint employer. The agreement between
Lee Hospital and AAI provides that AAI is responsible for the operation
of the anesthesia department, including its organization and
supervision. Dr. Quinn supervises and evaluates the clinical performance
of CRNAs on a daily basis. Quinn or his associate Dr. Kim, the other
shareholder in AAI, ``almost exclusively'' makes decisions with regard
to daily work assignments, the number of CRNAs that are to report to
work each day, the identity of scheduled CRNAs who are not to report to
work because of abbreviated operating room schedules, when to call a
CRNA to work in an ``on-call'' situation, and when to allow the CRNAs to
leave at the end of the day or to take lunch breaks and midday breaks.
The Petitioner adds that AAI, through Quinn, has participated in the
formulation of policies impacting on the working conditions of the CRNAs
involving anesthesia department procedures. Specifically, the Petitioner
notes that the record shows that Quinn is coauthor of a number of
department guidelines relating to reduced scheduled working hours,
reporting off policies, vacation policy, reducing scheduled work hours,
and the department time schedule. The Petitioner also asserts that Quinn
was actively involved in discussions between Lee Hospital and the CRNAs
concerning overtime compensation and the hospital policy requiring on-
call CRNAs to carry beepers. Quinn, in conjunction with Chief Nurse
Anesthetist Pavlosky, establishes the qualifications of the CRNAs at Lee
Hospital by reviewing and writing the CRNA job description. Quinn has
the authority to discipline CRNAs in the form of oral and written
reprimands and on one occasion transferred a CRNA to another department
because of poor work performance. Quinn has participated significantly
in the hiring of CRNAs by hiring six CRNAs without prior approval or
consultation with hospital administration.\13\ Finally, the Petitioner
asserts that AAI receives direct profit from the CRNAs by billing
directly all individual patients and/or their respective third-party
payors, other than medicare patients, for the professional services of
the CRNAs while only paying Lee Hospital a set hourly rate for CRNAs.
AAI also represents on various reimbursement forms that the CRNAs are
employees of AAI. The Petitioner argues that by recouping a significant
profit for CRNA professional services, AAI is representing and treating
the CRNAs as its own employees.
---------------------------------------------------------------------------
\13\Quinn's action is inconsistent with the hospital's formal hiring
procedure. President Ungar testified that the hiring procedure is
initiated by the hospital's personnel department. After a candidate
completes a written application, the candidate is interviewed by the
appropriate department supervisor and medical director who submit
evaluations and recommendations to personnel with Ungar having final
approval authority on all employee hiring. Normally, the personnel
department communicates the formal offer of employment to the candidate.
---------------------------------------------------------------------------
The record shows that AAI, through Quinn by virtue of his
responsibilities as medical director in charge of patient care,
exercises some control in the day-to-day operation of the anesthesia
department. However, Pavlosky has primary responsibility for
administrative and personnel matters, including preparing work
schedules, making regular overtime assignments (first late/second late
schedule), and determining the number of CRNAs reporting for work.
Although Quinn assigns CRNAs to the operating rooms, Pavlosky can make
changes to Quinn's assignments as needed without consulting Quinn.
Pavlosky prepares the non-abbreviated work schedule designating who will
report to work. In case of an abbreviated work schedule, Pavlosky
testified that she suggests which CRNAs will be instructed not to report
and Quinn testified that he has always followed Pavlosky's proposal. The
record further shows that Quinn is not involved in the decision as to
whether a CRNA's absence from work will be designated as absent with pay
or absent without pay. Quinn determines when patient care needs
necessitate requesting an on-call CRNA to report and when a CRNA may
take breaks or leave at the end of the day. Pavlosky schedules vacation
and handles requests for nonemergency leave.
With respect to promulgation of policies affecting working
conditions, the record shows that Quinn has jointly formulated with
Pavlosky a number of policies impacting on the working conditions of the
CRNAs, for example, reduced-hour work schedules and time off, and has
participated with Pavlosky in discussions between the CRNAs and the
hospital administration concerning the anesthesia department's overtime
compensation policy and beeper policy. The decision to implement the
overtime and beeper policies, however, was made by the hospital. Thus,
although Quinn in his capacity as medical director exerts control over
matters affecting the day-to-day operation of the anesthesia department,
the record clearly establishes that President Ungar retains ultimate
control over the medical directors\14\ on all matters and, in
particular, labor relations.
---------------------------------------------------------------------------
\14\The agreement between Lee Hospital and AAI provides that it can
be terminated by either party at any time subject to a 120-day written
notice of termination requirement. Unless terminated, the agreement is
deemed automatically renewed annually.
---------------------------------------------------------------------------
The record shows that Quinn hired six CRNAs without following the
formal hiring procedure. All these individuals were either past
employees of the hospital or student anesthetists of the now defunct Lee
Hospital School of Anesthesia.\15\ President Ungar had final approval
over these and all hiring decisions.
---------------------------------------------------------------------------
\15\The student anesthetists were employees of the hospital under
Quinn's supervision at the time he extended to them offers of employment
as CRNAs.
---------------------------------------------------------------------------
Quinn, like all department heads and medical directors of the
hospital, has authority to discipline employees with respect to conduct
related to patient care. Discipline based on conduct unrelated to
patient care is handled by Pavlosky or the hospital personnel
department. ``Serious'' disciplinary matters involving breaches of
hospital behavior standards or rules of conduct (which are specified in
the hospital's employee handbook) are investigated by the personnel
director who then makes a recommendation to the department head and the
vice president.\16\ Quinn does not have the authority to terminate an
employee. Quinn testified that he has the authority to recommend
discharge, but has never exercised that authority.
---------------------------------------------------------------------------
\16\Employee grievances are submitted to the department head, the
vice president of professional services, or the personnel department.
---------------------------------------------------------------------------
We are not persuaded that AAI's profiting from the CRNAs' services
or its representation to patients or third-party payors that it is
billing for the medical direction of its own employees demonstrates that
AAI is a joint employer of the CRNAs. First, we note that the hourly
rate of reimbursement that AAI owes to Lee Hospital for a CRNA's
services is set by the hospital and is not negotiable between the
hospital and AAI. Further, the record clearly shows that Lee Hospital,
not AAI, determines the essential terms and conditions of employment of
the CRNAs. President Ungar determines labor relations policy. Lee
Hospital sets the wages, and salary and fringe benefit policies for the
CRNAs.
AAI's involvement in the day-to-day operation of the anesthesia
department does not demonstrate that AAI maintains sufficient control
over the terms and conditions of the CRNAs' employment to constitute a
joint employer with Lee Hospital. The supervision and direction
exercised by AAI, through Quinn, on a day-to-day basis is related to the
physician-nurse relationship and patient care issues. Quinn has limited
hiring and disciplinary authority and lacks firing authority. As
discussed above, although Quinn assigns CRNAs to operating rooms,
Pavlosky schedules work, vacation, sick leave, and overtime. Personnel
policies and procedures are administered by the hospital. Although Quinn
has formulated some department policies and participated in discussions
between the Hospital and the CRNAs concerning various policies, the
final decision to implement these policies was made by President
Ungar.\17\ Further, we note that President Ungar retains ultimate
control over the hospital's medical directors on all matters. Under
these circumstances, we do not find that AAI shares or codetermines
those matters governing the essential terms and conditions of employment
to an extent that it may be found to be a joint employer.
---------------------------------------------------------------------------
\17\See TLI, Inc., supra, in which the Board held that participation
in bargaining sessions where the party did not control the economics of
the relationship did not establish a joint employer relationship.
---------------------------------------------------------------------------
Accordingly, we affirm the Regional Director's Decision and Order
dismissing the petition based on his finding that the petitioned-for
unit of CRNAs is not an appropriate unit.\18\
---------------------------------------------------------------------------
\18\We note that the Petitioner does not wish to proceed to an
election with the CRNAs on a broader basis.
---------------------------------------------------------------------------
ORDER
The petition is dismissed.
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
Home | Free Trial | Products & Prices
| Feeds
| Caselaw Database
| Sample
EEOC
| NLRB
| Nat'l Arbitration Ctr
| Supreme Court
| Articles
| Lawyers
Employment Law
Blog | Arbitration Blog
| Employment Law 101
Employment Law Memo | NLRB Law Memo | Arbitration Law Memo