DECISION AND DIRECTION OF ELECTION
The Petitioner and Liberty Dialysis-Hawaii have a collective-bargaining agreement for the existing unit that is effective from
The parties stipulated, and I find that the following petitioned-for unit shares a community of interest and is appropriate for the purposes of collective bargaining: All Registered Nurses employed by the Employer at the Liberty Dialysis North Hawaii dialysis center, but excluding confidential employees, managers, guards, and supervisors as defined in the Act. However, the Employer contends that an
A hearing officer of the Board held a hearing in this matter on
For the reasons set forth below, I find that the petitioned-for RNs constitute a distinct, identifiable voting group that shares a community of interest with the existing unit. Moreover, I also find that Liberty Dialysis-Hawaii and Liberty Dialysis-North Hawaii constitute a single employer. Finally, I find that a mail ballot election is appropriate in this case. Accordingly, I am directing a self-determination election among the RNs to join the existing bargaining unit of RNs represented by the Petitioner. To provide a context for my discussion of these issues, I will first provide an overview of the Employer's operations. I will then present the relevant facts and reasoning to support my conclusions.
II. THE FACTS
A. The Employer's Operations and Hierarchy
In or about 2013, Fresenius purchased Liberty Dialysis. Liberty Dialysis-North Hawaii is a joint venture between Liberty Dialysis-North Hawaii,
Liberty Dialysis-Hawaii is a joint venture between Liberty Dialysis-Hawaii,
As stated above, there are about 20 dialysis clinics in
The petitioned-for unit of two (2) RNs work at the
Each clinic is supervised by a clinical manager (also known as a facilities manager) who oversees the day-to-day operations of the clinics, including hiring, disciplining, performance evaluations, assignments, scheduling, quality assurance, and repair and maintenance of the clinic. Clinical coordinators, who are directly underneath the clinical manager in authority, assist the clinical managers. Unit service coordinators, who work in the office of each clinic, assist clinical managers and clinical coordinators with, among other things, employee files and quality issues. The Employer also employs educators, who, in part, assign RNs to train employees, but it is not clear from the record if these employees are also RNs or in some other job classification./9
The clinical managers report to
Director Biegler and the other directors of operations report to Jocelyn Saccamago, Regional Vice-President, who in turn reports to
C. Labor Relations
Fresenius maintains a centralized human resources department that is responsible for all of the Fresenius clinics, with managers assigned to different regions.
D. Skills and Functions
The RNs who are employed at the
Hemodialysis is performed inside the clinic on an outpatient basis. Patients visit the clinic about three to four times per week, for three to six hours of treatment, and an RN on duty sees about 23 to 25 in-clinic patients per day. In contrast, PD is performed by the patient at home, but the patients are initially trained at a clinic by RNs who are certified in this type of dialysis. PD patients in
With respect to PD patients who are treated at the
E. Training and Equipment
All newly hired RNs for all of the Fresenius clinics attend the same monthly company-wide training, which is currently performed virtually. In addition, all RNs complete the same competency training individually on a computer. North Hawaii RNs also receive annual "water" training by bio-medical employees from
The equipment used by the RNs at the clinics is essentially the same. The only difference is the method by which bicarbonate, a solution used for dialysis treatment, is stored. In Kona, there is a central bicarbonate delivery system, while in
Electronic patient records for Fresenius clinics located in
F. Interchange and Contact between North Hawaii RNs and the Existing Unit
There is evidence of permanent interchange of employees between the three clinics on the
With respect to temporary interchange for in-clinic patient care, when a clinic is short-staffed, the clinic relies mostly on traveler nurses employed by an employment agency or clinical managers to cover shifts. However, in order to cover such shortages, RNs do work shifts at different clinics. Aside from a plant orientation and certification for PD RNs, RNs do not need any special training to work at other clinics.
In the past six months, RNs who work at the
With respect to the PD program, there is more evidence of regular temporary interchange of RNs./11
Since at least
For example, Kona RN Jane McClellan worked in
Educators who work at the
All the RNs who work at the
With respect to wages, North Hawaii RNs are paid
All the clinics on the
The RNs employed in
The applicable standard for evaluating the appropriateness of adding additional employees to a preexisting bargaining unit in a self-determination election is the Board's
Whether a voting group is an "identifiable, distinct segment" is not the same question as whether the voting group constitutes an appropriate unit.
In making a determination regarding the appropriateness of a multi-location unit, the Board examines the traditional community of interest factors as set forth above, as well as the degree of centralized control of management, geographical separation of the facilities, and bargaining history.
I note that in applying the community of interest factors above, the appropriate analysis is between the RNs and the entire existing unit of RNs who are employed at the clinics in
B. Application of Board Law regarding the Armour-Globe Doctrine to this Case
As explained in more detail below, based on the record evidence and weighing the factors above, I find that the factors of similar skills, functions, and training, common supervision, centralized labor relations, degree of functional integration, and interchange and contact between employees fully support the Petitioner's position with respect to the community of interest between the RNs who work at the
1. Separate Appropriate Unit and Distinct-and-Identifiable Segment
While the petitioned-for employees need not constitute a separate appropriate unit by themselves, in order to be added to an existing unit, as noted above, the parties in this case agree that the RNs are a separate appropriate unit for the purposes of collective bargaining. I find this position is supported by the record evidence. Specifically, the RNs in
2. Skills, Functions, and Training
The RNs in
Although the Employer contends that North Hawaii RNs have different skills because they serve as charge nurses during their shift, RNs in the existing unit also perform work as charge nurses, as evidenced by the fact that RNs in the existing unit receive a wage differential for charge nurse work. Moreover, although charge nurses must have six months of experience before they serve in that capacity, there is no evidence, as the Employer contends, that different skills are required to perform work as a charge nurse. Moreover, while the
3. Degree of Functional Integration
Functional integration generally refers to employees at separate facilities participating in various stages of an employer's operation so that they constitute integral part of a single work process. Budget Rent A Car Systems, supra, at 885. For example, functional integration exists when all of the employees in the sought-after unit work on different phases of the same product or a single service as a group.
The petitioned-for unit and the existing unit of RNs are simultaneously engaged in the same work to perform the Employer's essential function of providing dialysis care to patients at the clinics. With respect to home dialysis, RNs from
4. Interchange and Contact Between Employees
There is evidence of permanent and temporary interchange that supports the petitioned-for unit. See J&L Plate, 310
With respect to temporary interchange, in the past six months, RNs from
Moreover, the Employer's reliance on
5. Wages, Hours, and Working Conditions
North Hawaii RNs and RNs in the existing unit must follow the same Fresenius company policies and employee handbook. RNs in
I find that the overarching working conditions for the petitioned-for RNs and the RNs in the existing unit are substantially similar, and most differences are primarily due to the existence of the collective bargaining agreement for the existing unit and the absence of union representation at the
6. Supervision and Centralized Control of Management and Labor Relations
While each clinic has its own clinical manager who supervises the day-to-day operations of each clinic, Director Biegler oversees all three clinics on the
The Employer cites to
Accordingly, I find that the evidence, when considered as a whole, supports a finding that the North Hawaii RNs should be included in the existing bargaining unit. While the evidence shows that the clinical managers run the day-to-day operation of the clinics at the local level, Director Biegler supervises all the clinics on the
7. Geographic Distance
8. Bargaining history
There is no evidence that the RNs who work at the
For the reasons above, I find that the petitioned-for RNs share a community of interest with the existing unit. The evidence shows that the RNs have the same skills, functions, and training, common supervision, centralized labor relations and are functionally integrated with each other, and that there is interchange and contact among the employees. Although there are some differences in the terms and conditions of employment, this factor is not particularly useful in an
C. Board Law regarding Single Employer
The term "single employer" applies to situations where apparently separate entities operate as an integrated enterprise in such a way that "for all purposes, there is in fact, only a single employer."
The most critical of these factors is centralized control over labor relations. Common ownership is not determinative of single-employer status in the absence of such a centralized policy.
The Board has regularly found health institutions to constitute a single employer with one another or with their parent corporations. See, e.g.,
D. Application of Board Law regarding Single-Employer Status to this Case
I find that the record evidence establishes that Liberty Dialysis-North Hawaii and Liberty Dialysis-Hawaii constitute a single employer and single integrated enterprise within the meaning of the Act.
1. Common Ownership or Financial Control
Although, as the Employer contends, Liberty Dialysis-North Hawaii and Liberty Dialysis-Hawaii are separate legal entities, the record shows that they are both subsidiaries of Fresenius. The details of the exact financial relationship between the entities is unknown, but Director Biegler, who is employed by Fresenius, is responsible for the financial needs of the
2. Common Management
I also conclude that Liberty Dialysis-North Hawaii and Liberty Dialysis-Hawaii share common management. The clinical manager at each facility runs the day-to-day operations of the clinics, including hiring, firing, scheduling, discipline, and appraisals. However, Director Biegler, who supervises the clinical managers, is responsible for all areas of operations for all the clinics on the
As such, the common management does not point to an arm's length relationship between the entities. I find that this level of common management of Liberty Dialysis-North Hawaii and Liberty Dialysis-Hawaii weighs in favor of finding single employer status. Cf.
3. Centralized Control of Labor Relations
There is also a centralized human resources department. Although Lead Employee Relations Manager
4. Interrelationship of Operations
The evidence shows that the
With respect to patient care, patients travel to different clinics for treatment, and RNs perform work at different clinics, for example, Kona and Hilo RNs perform work at the
Finally, as explained in detail above, there is both permanent and temporary interchange among the RNs who work at
Based on the above, I find that common ownership, centralized labor relations, common management, and the interrelationship of operations weigh in favor of finding that Liberty Dialysis-Hawaii and Liberty Dialysis-North Hawaii constitute a single employer. Accordingly, I conclude that Liberty Dialysis-Hawaii and Liberty Dialysis-North Hawaii are a single employer within the meaning of the Act.
IV. A MAIL-BALLOT ELECTION IS APPROPRIATE
The Petitioner argues that a mail ballot election is more appropriate in this case given that one of the two (2) RNs eligible to vote in the election will be on maternity leave at the time the election is conducted. In contrast, the Employer desires a manual election and opposes a mail ballot election.
The Board's longstanding policy is that elections should, as a general rule, be conducted manually. However, a Regional Director may reasonably conclude, based on circumstances to conduct an election by mail ballot "where circumstances tend to make it difficult for eligible employees to vote in a manual election" or where a manual election is not practical. See NLRB Casehandling Manual (Part Two) Representation Proceedings, Sec. 11301.2./15
This includes a few specific situations addressed by the Board, including where voters are "scattered" over a wide geographic area, "scattered" in time due to employee schedules, in strike situations, or other "extraordinary circumstances."
In exercising discretion in such situations, a Regional Director should also consider the desires of all the parties, the likely ability of voters to read and understand mail ballots, the availability of addresses for employees, and what constitutes the efficient use of Board resources.
The Employer argues that a mail ballot election is not warranted under the Board's decision in
In addition, the 14-day testing positivity rate in
Given these extraordinary circumstances, it would be unsafe and unwise to conduct a manual-ballot election in this case. A manual election requires a gathering of voters, party representatives, Board agents, and observers. The Board's mail-ballot process eliminates the inherent safety risks and equally ensures that employees can conveniently and freely exercise their right to vote. In this regard, I note that if an employee tests positive for COVID-19, suspects they may have COVID-19 due to symptoms, has an elevated temperature, or must be quarantined due to COVID-19 exposure, they will be deprived of their vote in a manual election, as there is no absentee ballot or remote voting options under the Board's manual election rules. This is a risk that should be avoided as there are only two voters in the voting unit. A mail-ballot election avoids this significant potential pitfall and ensures that all have a safe and convenient opportunity to vote regardless of their exposure to COVID-19 or health status./18
Furthermore, there is no known date on which the circumstances I have described above will change. Indeed, the pandemic is currently trending in the wrong direction. As a result, a mail-ballot election in this matter will allow for holding of the election "at the earliest date practicable" consistent with the Board's Rules and Regulations Section 102.67(b).
Accordingly, in order to give the employees the fullest and safest opportunity to vote in the election, I am directing a mail ballot election.
For the reasons stated above, I find that (1) the Petitioner has established that the petitioned-for unit of RNs who work at the
1. The rulings at the hearing are free from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein.
3. The Petitioner is a labor organization within the meaning of Section 2(5) of the Act and claims to represent certain employees of the Employer.
4. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
5. The following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time registered nurses (RNs) employed by the Employer at the Liberty Dialysis North Hawaii dialysis center located at
VI. DIRECTION OF ELECTION
A. Election Details
The election will be conducted by mail. The mail ballots will be mailed to employees employed in the appropriate collective-bargaining unit by staff members from the office of the
All ballots will be commingled and counted at a location to be determined by the Regional Director at
Any person who has not received a ballot by noon on
B. Voting Eligibility
Eligible to vote are those in the unit who were employed during the payroll period ending immediately preceding the date of this Decision, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off.
Employees engaged in an economic strike, who have retained their status as strikers and who have not been permanently replaced, are also eligible to vote. In addition, in an economic strike that commenced less than 12 months before the election date, employees engaged in such strike who have retained their status as strikers but who have been permanently replaced, as well as their replacements, are eligible to vote.
Ineligible to vote are (1) employees who have quit or been discharged for cause since the designated payroll period; (2) striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date; and (3) employees who are engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced.
C. Voter List
As required by Section 102.67(l) of the Board's Rules and Regulations, the Employer must provide the Regional Director and parties named in this decision a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters.
To be timely filed and served, the list must be received by the Regional Director and the parties by
Unless the Employer certifies that it does not possess the capacity to produce the list in the required form, the list must be provided in a table in a Microsoft Word file (.doc or docx) or a file that is compatible with Microsoft Word (.doc or docx). The first column of the list must begin with each employee's last name and the list must be alphabetized (overall or by department) by last name. Because the list will be used during the election, the font size of the list must be the equivalent of
When feasible, the list shall be filed electronically with the Region and served electronically on the other parties named in this decision. The list may be electronically filed with the Region by using the E-filing system on the Agency's website at www.nlrb.gov. Once the website is accessed, click on E-File Documents, enter the NLRB Case Number, and follow the detailed instructions.
Failure to comply with the above requirements will be grounds for setting aside the election whenever proper and timely objections are filed. However, the Employer may not object to the failure to file or serve the list within the specified time or in the proper format if it is responsible for the failure.
No party shall use the voter list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.
D. Posting of Notices of Election
Notices of Election will be electronically transmitted to the parties, if feasible, or by overnight mail if not feasible. Section 102.67(k) of the Board's Rules and Regulations requires the Employer to timely post copies of the Board's official Notice of Election in conspicuous places, including all places where notices to employees in the unit are customarily posted. The Notice must be posted so all pages of the Notice are simultaneously visible. In addition, if the Employer customarily communicates electronically with some or all of the employees in the unit found appropriate, the Employer must also distribute the Notice of Election electronically to those employees. The Employer must post copies of the Notice at least 3 full working days prior to
Pursuant to the stipulation of the parties, the Notice of Election and ballots will be provided in English.
Failure to follow the posting requirements set forth above will be grounds for setting aside the election if proper and timely objections are filed.
RIGHT TO REQUEST REVIEW
Pursuant to Section 102.67 of the Board's Rules and Regulations, a request for review may be filed with the Board at any time following the issuance of this Decision until 10 business days after a final disposition of the proceeding by the Regional Director. Accordingly, a party is not precluded from filing a request for review of this decision after the election on the grounds that it did not file a request for review of this Decision prior to the election. The request for review must conform to the requirements of Section 102.67 of the Board's Rules and Regulations.
Pursuant to Section 102.5(c) of the Board's Rules and Regulations, a request for review must be filed by electronically submitting (E-Filing) it through the Agency's web site (www.nlrb.gov), unless the party filing the request for review does not have access to the means for filing electronically or filing electronically would impose an undue burden. To E-File the request for review, go to www.nlrb.gov, select E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the request for review should be addressed to the Executive Secretary,
Neither the filing of a request for review nor the Board's granting a request for review will stay the election in this matter unless specifically ordered by the Board. If a request for review of a pre-election decision and direction of election is filed within 10 business days after issuance of the decision and if the Board has not already ruled on the request and therefore the issue under review remains unresolved, all ballots will be impounded. Nonetheless, parties retain the right to file a request for review at any subsequent time until 10 business days following final disposition of the proceeding, but without automatic impoundment of ballots.
* * *
1/ The Employer's and the Petitioner's correct legal names appear by stipulation of the parties.
2/ The Employer stipulated, and I find that
3/ The parties stipulated, and I find, that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act.
4/ The parties stipulated, and I find that the unit description of the existing unit is "All nurses who can legally practice as registered nurses in the
8/ The record is silent regarding what the nature of the relationship between
9/ The record is silent regarding the number of clinical coordinators, unit service coordinators, or educators or their supervisory status under Section 2(11) of the Act or agency status under Section 2(13) of the Act .
10/ Sometime in 2014, North Hawaii RN Greenlee covered a few shifts at the Kona clinic. In or about
11/ Sign-in sheets for the
12/ RN Mattos, the other RN employed in
13/ The Employer's website states that the
14/ Since this case involves a self-determination election, aside from the traditional community of interest factors, I have primarily analyzed the facts pursuant to the Warner-Lambert standard discussed, above, rather than under the Board's more recent decision in
15/ I note the provisions of the Casehandling Manual are not Board directives or procedural rules. The Casehandling Manual is issued by the General Counsel, who does not have authority over matters of representation, and it is only intended to provide nonbinding guidance to regional personnel in the handling of representation cases. See Representation-Case Procedures, 84 Fed. Reg. 39930, 39937 fn. 43 (2019) ("the General Counsel's nonbinding Casehandling Manual");