NLRB Regional Director Issues Decision Regarding Lawrence & Memorial Corporation, Lawrence and Memorial Hospital, and L&M Physicians…

Lawrence & Memorial Physicians Association d/b/a Lawrence+Memorial Medical Group (LMMG) operates several outpatient medical facilities in Connecticut, Rhode Island, and New York, including a facility in New London, Connecticut that is referred to as the Medical Office Building (MOB). The Hospital and LMMG are both subsidiaries of Lawrence+Memorial Corporation, d/b/a Lawrence+Memorial Healthcare (L+M Corporation). Petitioner asserts that L+M Corporation, the Hospital and LMMG are a single employer. AFT seeks two separate Armour-Globe self-determination elections in which certain LMMG employees at the MOB would vote whether or not they wish to be included in existing Hospital units.3 In Case 01-RC-134311, AFT seeks to add LPNs employed at the MOB to the existing LPN and technical unit at the Hospital.4 In Case 01-RC-134298, AFT seeks to add medical assistants (MAs), patient coordinators, patient care navigators, and surgical schedulers employed at the MOB to the existing service and maintenance unit at the Hospital.5 Should I find self-determination elections to be inappropriate, AFT seeks, in the alternative, an election in a stand-alone unit at the MOB, in which the LPNs would be included in the same unit as the medical assistants, patient care coordinators, patient care navigators, and surgical schedulers.6

LMMG contends that a self-determination election is inappropriate, that a stand-alone MOB unit is inappropriate, and that the smallest appropriate unit is an LMMG-wide unit of all positions sought by AFT.

L+M Corporation and the Hospital assert that LMMG and the Hospital are not a single employer, that an Armour-Globe election is not permissible, and that the only appropriate unit must include all LMMG employees in the petitioned-for positions.

I find, for the reasons set forth below, that an Armour-Globe election is not appropriate either for the nurses or for the remaining MOB employees. I further find, for the reasons set forth below, that the petitioned-for employees at the MOB constitute an appropriate unit and I shall direct an election in a stand-alone unit at that facility.

The petition in this case was filed under Section 9(c) of the Act. The parties were provided an opportunity to present evidence on the issues raised by the petition at a hearing held before a hearing officer of the National Labor Relations Board (the Board). I have the authority to hear and decide this matter on behalf of the Board under Section 3(b) of the Act. I find that the hearing officer's rulings are free from prejudicial error and are affirmed; that the Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction; that the Petitioner is a labor organization within the meaning of the Act; and that a question affecting commerce exists concerning the representation of certain employees of the Employer.

I. Appropriateness of a self-determination election for the MOB LPNs

A. Facts

L+M Corporation is the parent corporation of four health care entities, all of which service patient populations in southeastern Connecticut and southwestern Rhode Island. Two of the entities, L+M Hospital in New London, Connecticut and Westerly Hospital in Westerly, Rhode Island, are community hospitals that provide inpatient care, emergency room care, inpatient and outpatient surgery, and imaging services. The third entity, Visiting Nurse Association of Southeastern Connecticut (VNASC), is a home health agency. The fourth entity, LMMG,7 is a medical group practice that employs physicians and other health care providers in a physician's office setting. LMMG operates 13 patient care facilities, most of which are located in southeastern Connecticut and southwestern Rhode Island.8

Bruce Cummings is the President and CEO of L+M Corporation, as well as the CEO of L+M Hospital and Westerly Hospital. LMMG President Dr. Chris Lehrach reports to Cummings.

The Hospital and LMMG are parties to an Affiliate Services Agreement, pursuant to which the Hospital provides certain administrative support and management services to LMMG in exchange for compensation. These services include legal support, financial/accounting management and tax preparation, payroll administration, employee benefit planning and administration, human resources support at the Director level, facilities management and support, marketing support, physician recruitment, and EAP services. As a result, employees of the Hospital and LMMG are covered by common corporate health insurance, dental, vision, 401(k), and EAP plans. The Hospital and LMMG are also parties to an agreement under which the Hospital provides certain information technology services to LMMG in exchange for compensation. The Hospital and LMMG each approve their own employment policies, some of which are identical or similar and some of which are different.

Some LMMG physicians refer patients to the Hospital for tests and inpatient care, but they are not required to do so and they also refer patients to other hospitals. LMMG and the Hospital maintain separate electronic medical records systems, and employees have access to the medical records of patients only at the entity at which they work.

Hospital and MOB employees share a common parking lot, with dedicated shuttles running separately from the parking lot to the MOB and to the Hospital. Hospital and MOB employees attend some common training events, but the record does not reveal how often this occurs.

As noted above, AFT represents a unit of LPNS, technical employees and technologists employed at the Hospital. Hospital LPNs are required to be graduates of an approved school of practical nursing and to be licensed by the State of Connecticut. Working under the direction of an RN, they care for acutely ill patients. LPNs work in various units at the Hospital, including the cardiac, neurology, orthopedic, and respiratory units. LPNs begin their shift by taking report from nurses on the prior shift and end their shift by giving report to the incoming nurses. They participate in interdisciplinary rounds. They are responsible for performing head-to-toe physical assessments of the patients on their unit, which include listening to lung and bowel sounds, checking for skin breakdowns and infections, and evaluating the patients' mental status; checking vital signs; flagging lab results for physicians; and reporting any changes in patient condition to an RN. They administer medications, although they do not generally administer IV medications. They also put patients on oxygen.

Hospital LPNs are required to demonstrate additional "competencies, " depending on the specific unit in which they work. For example, LPNs in the respiratory unit must demonstrate the following competencies: caring for patients who have a tracheostomy, patients who are dependent on a ventilator, patients who may be in isolation for conditions such as tuberculosis, thoracic surgical patients, dialysis patients, and peritoneal dialysis patients. They must also ensure that patients are breathing appropriately, assess and clean the site of tracheostomies, and check oxygen saturation levels, and they must be able to perform nasotracheal, endotracheal, and tracheostomy suctioning. LPNs in the cardiac unit must be able to interpret arrhythmias and intervene when necessary by reporting them to an RN or by initiating CPR and calling an emergency response team. LPNs on the neurology unit must be able to conduct neurological assessments, assist physicians during neurological procedures, care for patients wearing a "halo" brace used to stabilize the neck, monitor for infection, care for patients with a tracheostomy, and suction airways. LPNs with experience working in a doctor's office would not possess these competencies and would have to be trained to perform them.

In April 2014, LMMG opened a new facility, the MOB in New London. Several physicians' offices that had previously been located in various other buildings in New London and some physician practices that had previously leased space at the Hospital were consolidated into the MOB. With respect to those group practices that moved from leased space at the Hospital to the MOB, the providers and other employees of those practices were employees of LMMG rather than the Hospital both before and after the move, and the support staff in those practices, such as the receptionists and medical assistants, were non- union employees when those practices were located at the Hospital. When the MOB opened, the Hospital relocated a mini-laboratory and blood drawing station that had previously been located elsewhere to the MOB. The lab at the MOB is staffed by two to three phlebotomists who are employees of the Hospital and who are included in the service and maintenance unit.

The MOB, which has three floors, is now one of LMMG's largest locations. It employs about 120 employees, including about fifty providers, or about one third of LMMG's 163-167 providers. The MOB provides the following outpatient services: primary care, walk-in care, obstetrics/gynecology, cardiology, neurology, psychiatry/behavioral medicine, sleep medicine, physiatry/pain management, general surgery, neurosurgery, hand surgery, rehabilitation medicine, the Joslin Diabetes Center, and lab services. The MOB is about .8 mile from the Hospital and is substantially closer to the Hospital than any of the other LMMG facilities.

LMMG maintains a single job description for its nurses, who are required to have graduated from an accredited nursing school and to be licensed either as an RN or an LPN. All LMMG nurses, regardless of their licensure, perform within the scope of practice of an LPN.9 In this regard, they work under the direction of physicians and, unlike RNs, are not permitted to diagnose or treat patients on their own.

The MOB employs three nurses who work as LPNs: Jarai Blevins works as a primary care nurse, Aida Melendez works at the MOB's Joslin Diabetes Center, and Lorna Joyner works at the MOB's cardiology practice one day a week.10 MOB LPNs work in an outpatient setting. They take vital signs and weights, record patients' conditions and reactions to treatments into medical records, instruct patients in the collection of samples and tests, communicate test results, and educate patients, for example, in how to use an inhaler or glucometer. They perform minor wound care. They respond to phone calls from patients about medical issues and triage patients to ensure patients with emergency situations are seen promptly, which involves reporting to and relaying instructions from a physician. They follow up with prescription refill requests, maintain exam rooms for necessary supplies, and assist providers with exams and procedures. Unlike the Hospital LPNs, MOB LPNs do not care for acutely ill patients. They do not do a head-to-toe assessment, do not listen to lung or bowel sounds, do not routinely administer medications, and do not suction airways or flag lab results. Their functions are similar to those of the LMMG medical assistants, except that they are also able to give immunizations and intramuscular and subcutaneous injections.

LPNs at the Hospital report to various nurse managers and/or assistant directors of nursing, who report to nursing directors, who report, in turn to the Hospital's Vice President of Patient Care Services. The Hospital's nurse managers, nursing directors, and vice president of patient care services have no supervisory responsibility for the LPNs who work at the MOB. The MOB LPNs report to LMMG Clinical Nurse Manager Kathryn Roccon, who directly supervises the nurses at all of the LMMG sites.11 Roccon supervises no employees at the Hospital.

The Hospital operates on a 24/7 basis, and LPNs at the Hospital work the traditional three day, evening, and night nursing shifts. They are required to work every other weekend and every other holiday. LPNs at the Hospital are permitted to swap shifts with one another. The MOB, like all of the LMMG facilities, is generally open from about 8 a.m. to 5 p.m. The LPNs at the MOB work either from 8 a.m. to 4:30 p.m. or from 8:30 a.m. to 5 p.m. They do not work nights, weekends, or holidays.12 They are never on call and are not permitted to swap shifts.

Apart from whatever contact may be occasioned by the shared parking lot or common training, there is no evidence of contact between LPNs at the MOB and the Hospital. LPNs at the Hospital and LPNs at the MOB never fill in for one another, nor is there evidence that any MOB LPNS have taken jobs at the Hospital or vice versa.13

B. Analysis and conclusion

A self-determination election is a proper method by which a union may add unrepresented employees to an existing unit. Globe Machine & Stamping; 3 NLRB 294 (1937); Armour & Co., 40 NLRB 1333 (1942). Such an election may be appropriate regardless of whether the employees in question may be found to be a separate appropriate unit. Great Lakes Pipe Line Co., 92 NLRB 583, 584 (1950). The appropriateness of a self-determination election, sometimes referred to as an "Armour-Globe" election, depends on the extent to which the employees to be included share a community of interest with unit employees and on whether the employees to be added constitute an identifiable, distinct segment so as to constitute an appropriate voting group. Warner-Lambert Co., 298 NLRB 993, 995 (1990); Unisys Corporation, 354 NLRB 825, 829 (2009).

As for the community-of-interest factors, in determining whether a petitioned-for multi-facility unit is appropriate, the Board considers (1) similarity in skills, duties, and working conditions, (2) functional integration, (3) employee contact and interchange, (4) centralized control of management and supervision, (5) geographic proximity, and (6) bargaining history. Verizon Wireless, 341 NLRB 483, 485 (2004); Clarion Health Partners, 344 NLRB 332, 334 (2005); Laboratory Corp. of America Holdings; 341 NLRB 1079, 1081-1082 (2004). It is irrelevant that some larger or smaller unit might also be appropriate or most appropriate, and the Petitioner's position regarding the scope of the unit is also a relevant consideration. International Bedding Company, 356 NLRB No. 168 (2011), slip op. at 2.

Assuming that the MOB nurses constitute an appropriate voting group, I find that they do not share a sufficient community of interest with the employees in the Hospital's LPN and technical unit to warrant an Armour-Globe election.14

In this regard, the duties and skills required of LPNs at an acute care hospital are very different from those who work in a physician's office setting. LPNs at the Hospital assess and treat acutely ill patients, which requires a different skill set from that required of LPNs who work in a doctor's office. The working conditions of the two groups are distinct, in that LPNs at the Hospital provide around-the- clock care, including weekends and holidays, while LPNs at the MOB work only Monday through Friday during the day. LPNs at the Hospital may swap shifts, while LMMG LPNs may not. Visiting Nurses Association, 324 NLRB 55, 55 (1997)(nurses at a visiting nurses agency have separate and distinct work functions, skills, and working conditions - work setting, dress, daily routine, and different hours - and perform more general functions rather than the specialized functions performed by nurses at an acute care hospital). The MOB and Hospital LPNs are separately supervised. Each entity has its own human resources department, with a separate hiring process. LPNs at the two sites never fill in for one another, there is no evidence of permanent interchange between the two settings, and there is very little evidence of any work-related contact between the two groups of nurses other than possible contact at occasional common training events or at a shared parking lot. While there is some functional integration between MOB and the Hospital, in that the Hospital provides certain services to LMMG pursuant to their Affiliated Services Agreement and Information Technology Agreement, and MOB physicians refer patients to the Hospital, each entity has its own electronic medical records system, to which only its employees have access.

In reaching this conclusion, I acknowledge that some factors militate in favor of finding a community of interest between the two groups. Thus, the MOB and the Hospital are less than a mile apart. Because of the Affiliated Services Agreement, MOB and Hospital employees share many corporate-wide benefits and payroll administration. Several Hospital and MOB policies are identical or similar, albeit approved separately by each entity. I find that these factors are outweighed by the two key elements of separate supervision and lack of interchange, as well as by the other factors set forth above.

II. Appropriateness of a self-determination election for the MOB service and maintenance employees

A. Facts

The service and maintenance unit at the Hospital includes employees who perform various clerical functions similar to those of the petitioned-for MOB service and maintenance employees, albeit with different titles. Thus, scheduling coordinators in the Hospital's Radiology Department coordinate the scheduling of outpatient appointments and obtain documentation for insurance and pre- certification. Scheduling coordinators in the Operating Room answer phones, schedule surgeries, relay information to physicians and patients, and ensure that patient demographic information is correct. Receptionists at the Hospital Information Desk greet and direct patients and visitors, answer the phone, and call for wheelchair assistance. Registrars register patients prior to admission or testing, obtain demographic and financial information, process requisitions for diagnostic testing, process payments, prepare patient cards and ID bracelets, and assign beds.

Administrative assistants provide administrative support such as word processing and scheduling for department managers. Patient services specialists greet patients, answer phones, collect demographic information from patients, verify insurance, collect insurance copays, and schedule appointments for patients. These positions generally require a high school diploma or equivalent, with a medical background preferred.

The service and maintenance unit at the Hospital also includes medical assistants, who are employed in the Hospital's Cancer Center, Occupational Health Department, and Employee Health Department. They take patients' vital signs, prepare patients, equipment, and rooms for procedures, collect and label blood and urine samples, prepare charts for physicians, and cover phones and the front desk when needed. The medical assistants must be graduates of an accredited medical assistant program.

Finally, the service and maintenance unit at the Hospital includes phlebotomists, two to three of whom staff the lab operated by the Hospital at the MOB.15

The petitioned-for employees at the MOB include patient coordinators, patient navigators, and surgical schedulers,16 all of whom work within a group referred to as the Call Center or Patient Access Center. The MOB employs about 15 patient coordinators. Some of them work in the "Check In" area, where they greet patients, obtain demographic and insurance information from patients, collect insurance copays, scan insurance cards, answer the phones, and schedule patient appointments. The remaining patient coordinators work in another area out of view of patients. They answer the phones, direct calls to providers, and schedule appointments.

The MOB employs five or six patient care navigators. They coordinate patient referrals from primary care physicians to specialists as well as referrals for imaging and other medical tests. They obtain referral authorizations from physicians, verify insurance information to determine if a referral is needed, pre- certify certain tests as required by insurance companies, schedule appointments for testing, and notify the patients of appointments and any necessary instructions. This position requires an associate's degree, with a bachelor's degree preferred.

The MOB employs three surgical schedulers, who schedule patient surgeries upon receiving orders from physicians and physician assistants, which involves calling the facility where the surgery will take place to book it with that facility's scheduler. They coordinate appointments for any pre-surgery testing, and obtain pre-certification for surgeries from insurance companies. This position requires a high school diploma or GED, with an associate's degree in a medical field preferred.

The MOB employs about 31 medical assistants, who are assigned to particular practices, such as primary care, cardiology, and obstetrics/gynecology. The medical assistants bring patients from the waiting area to an exam room, take their vital signs, update information such as the patient's family history and medication list, document the reason for the patient's visit, and prepare the patient's chart and the room for the physician. They collect urine, blood, or tissue samples as ordered. After the exam, medical assistants at the MOB check out the patient by printing out a clinical summary of the visit, answering medical questions, and checking on prescription refills. They are required to be Certified Medical Assistants. A high school diploma is required and an associate's or bachelor's degree is preferred.

The complete text of the report is available at (xitenow.com/browse.php?u=74Fyv1XM3FYmn043W957M%2Bo%2BhfYV7S5f9scEfkgtXkT1E7ECExHUaw6KV%2BY7BAt5cXIhX0hE&b=5)

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