NLRB Issues Decision on Bio-Medical Applications of California and Liberty Dialysis-Hawaii
Targeted News Service
WASHINGTON, July 29 -- The National Labor Relations Board issued the following decision (Case No. 20-RC-277446) by Region 20 Acting Director Dale K. Yashiki:
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC. AND LIBERTY DIALYSIS-HAWAII LLC; AND LIBERTY DIALYSIS-NORTH HAWAII LLC, SINGLE EMPLOYER/1, Employer, HAWAII NURSES' ASSOCIATION, OPEIU LOCAL 50, Petitioner
DECISION AND DIRECTION OF ELECTION
Bio-Medical Applications of California, Inc. and Liberty Dialysis-Hawaii LLC ("Liberty Dialysis-Hawaii") and Liberty Dialysis-North Hawaii LLC ("Liberty Dialysis-North Hawaii") (herein collectively referred to as "the Employer") are subsidiaries of Fresenius Medical Care North America ("Fresenius"). Fresenius operates dialysis clinics in the United States, including about 20 clinics in Hawaii that provide patients with outpatient dialysis medical care./2
Hawaii Nurses' Association, OPEIU Local 50/3 currently represents a bargaining unit of approximately 159 registered nurses (RNs), who are employed at the clinics ("existing unit")./4
The Petitioner and Liberty Dialysis-Hawaii have a collective-bargaining agreement for the existing unit that is effective from March 1, 2019 to February 28, 2022. The Petitioner seeks an Armour-Globe/5 self-determination election to add two (2) RNs, who are employed at the Liberty Dialysis-North Hawaii's clinic in Waimea,/6 Hawaii, to the existing unit. The parties stipulated that there is no collective-bargaining agreement covering the petitioned-for unit, and there is no contract bar to this proceeding.
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 Armour-Globe election is not appropriate in this case because Liberty Dialysis-Hawaii and Liberty Dialysis-North Hawaii are separate legal entities and employers and that the petitioned-for RNs do not share a community of interest with the Petitioner's existing unit. The Petitioner, on the other hand, asserts that Liberty Dialysis-Hawaii and Liberty Dialysis-North Hawaii are a single employer and that the petitioned-for RNs share a sufficient community of interest with its existing unit, such that their inclusion in the existing unit is appropriate. Moreover, the Petitioner asserts that a mail ballot election is appropriate, while the Employer contends that I should direct a manual election.
A hearing officer of the Board held a hearing in this matter on June 11, 14, and 21, 2021. The Employer and the Petitioner appeared at the hearing, and the parties filed timely post-hearing briefs, which I have duly considered. I have carefully considered the evidence and arguments presented by the parties, along with relevant legal precedent. The issues before me are whether the petitioned-for unit shares a sufficient community of interest with the existing unit to warrant an Armour-Globe election; whether Liberty Dialysis-Hawaii and Liberty Dialysis-North Hawaii are a single employer; and whether, as the Petitioner asserts, a mail ballot election is appropriate in this case.
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, Queens Medical Center, and physician partners./7
Liberty Dialysis-Hawaii is a joint venture between Liberty Dialysis-Hawaii, Bio-Medical Applications of California, Inc., and physician partners./8
As stated above, there are about 20 dialysis clinics in Hawaii under the Fresenius umbrella, RNs employed at about four of these clinics, including the North Hawaii and Oahu clinics, are unrepresented. There are three clinics on the Island of Hawaii (Big Island) which are the North Hawaii, Hilo, and Kona clinics. According to the Employer's website, "Fresenius Kidney Care dialysis centers are part of Fresenius Medical Care North America (FMCNA). Some centers may be known as Fresenius Kidney Care or Fresenius Medical Care, as well as other names. Every center listed in our dialysis finder is part of the Fresenius Kidney Care dialysis network." It appears that all of the clinics in the State of Hawaii are listed on the website and part of the Fresenius dialysis network. The Employer maintains a central telephone "help line" for all the clinics.
The petitioned-for unit of two (2) RNs work at the North Hawaii clinic, which is located inside the North Hawaii Community Hospital in Waimea, consist of Kristen Greenlee and Gaylyn Mattos. There are about 159 RNs in the existing unit, including 15-20 RNs who work in Hilo, the largest clinic on the Big Island, and about 5-6 RNs who work in Kona. In addition to RNs, the Employer employs patient care technicians (PCTs), who assist the RNs with patient care; unit clerks, who perform clerical duties at the front of the clinic, such as greeting patients and answering phones; and bio-medical employees, who appear to work with medical supplies and/or equipment. The record does not reflect that these employees are represented by the Petitioner or any other labor organization.
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 Nancy Biegler, Director of Operations, who is responsible for all of the operations of the North Hawaii, Hilo, and Kona clinics, including their financial needs, patient care, supplies, and equipment. Biegler is employed by Liberty Dialysis and ultimately, Fresenius. In or about 2015 or 2016, Director Biegler was promoted from the position of clinical manager at the North Hawaii clinic to the Director of Operations position she currently holds. Fresenius employs other directors of operations for the Kauai and Oahu regions in Hawaii.
Director Biegler and the other directors of operations report to Jocelyn Saccamago, Regional Vice-President, who in turn reports to Chris Smith, General Manager. Biegler does not maintain her own office. Rather, Biegler performs her work at the three clinics, and she is the highest ranking official present when she is at a clinic. North Hawaii RN Greenlee has consulted with Biegler about training programs, and Biegler approved Greenlee's transfer from the Kona to the North Hawaii clinic in April 2020.
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. Desiree Simone-Cullen, Lead Employee Relations Manager, and Riana Battles, Senior Employee Relations Manager, handle the labor relations for all the Hawaii clinics. Simone-Cullen is also the team lead for other employee relations managers who are responsible for clinics in other regions. Jasmine Elliott is the Vice-President of Human Resources. Simone-Cullen and Elliott focus mainly on Hawaii's clinics with represented employees, while Battles handles the clinics with unrepresented employees such as North Hawaii. However, Simone-Cullen and Elliott do not exclusively handle matters relating to the unrepresented employees and do deal with labor relations matters that arise in the North Hawaii clinic. Human Resources is involved in disciplinary matters, and human resources managers attend investigatory disciplinary meetings of employees that occur at the clinics. Human resources keeps copies of the disciplinary records of the employees who are employed at the clinics.
D. Skills and Functions
The RNs who are employed at the North Hawaii clinic and in the existing unit are responsible for providing direct patient care to dialysis patients, including preparing patient care plans, and administering medications. Dialysis is the cleaning of a patient's blood, and the clinics provide two types of dialysis: hemodialysis ("in-clinic") and peritoneal dialysis ("home dialysis or PD"). In North Hawaii, the clinic has a waiting room, a hemodialysis treatment floor, and some conference rooms.
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 North Hawaii are treated in a separate conference room that is separate from the in-clinic treatment floor.
At the North Hawaii clinic, there is generally only one in-clinic RN scheduled per shift on the hemodialysis treatment floor. Accordingly, the North Hawaii RNs perform work as charge nurses when they are on duty. Charge nurses must have six months of experience, but there is no evidence that any additional skill, aside from experience is required to work as a charge nurse. The collective bargaining agreement shows that RNs in the existing unit serve as charge nurses, as reflected by the additional wages they receive for that work under the collective-bargaining agreement.
With respect to PD patients who are treated at the North Hawaii clinic, there has never been a permanent PD nurse at North Hawaii. Rather, Hilo and Kona unit RNs who are certified in PD go to the North Hawaii clinic in order to treat PD patients. Once PD patients are trained to perform dialysis at home, they come to the North Hawaii clinic about once or twice per month for follow-up care. The PD room in the North Hawaii clinic is staffed only when patients are scheduled to come into the clinic, and about three to four PD patients are scheduled on those days. All PD patients are considered Kona patients regardless of where they receive treatment.
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 Hilo or Kona. On occasion, RNs from North Hawaii have traveled to Hilo for training, such as CPR training, but there is no evidence that this occurs very often.
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 North Hawaii, the bicarbonate solution is mixed separately for each treatment. However, there is no evidence that these differences in the bicarbonate delivery system requires any specific training or skills to perform. Bio-Medical staff and educators from Hilo sometimes bring supplies to the Kona clinic. The clinics also share a CPR training mannequin for the CPR training that is done every other year.
Electronic patient records for Fresenius clinics located in Hawaii are kept on the same computer programs. Since a patient may receive treatment at multiple clinics, RNs employed in North Hawaii and the existing unit access patient records outside their home clinic to perform their work. The Employer will grant such access to patient records to the RNs, as needed. For example, North Hawaii RN Greenlee can access patient records for the Kona clinic.
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 Big Island. Gaylyn Mattos began working at the North Hawaii clinic as a PCT in or about February 2017; was re-hired at the Kona clinic as an RN in or about October 2019 after attending nursing school; and in or about April 2020, transferred from the Kona clinic to the North Hawaii clinic. Mattos did not complete any paperwork at the time of her transfer to the North Hawaii clinic, and her seniority date remained the same. Elizabeth DeGrood, former clinical manager at the North Hawaii clinic, is currently working as an RN in the Hilo clinic. In or about June 2020, RN Ian Kubo, who no longer works for the Employer, transferred from Hilo to North Hawaii. In or about December 2020 or January 2021, RN Ruby Calibuyot, transferred from North Hawaii to Hilo.
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 Hilo or Kona clinics have covered shifts at the North Hawaii clinic about three or four times. For example, RNs employed at the Hilo clinic have worked shifts at the North Hawaii clinic as follows: Elizabeth DeGrood covered a shift in or about April 2021; Carrie Sergeant worked two shifts sometime between January and April 2021; and Lisa (last name unknown) may have covered a shift in or about January 2021. In addition, in or about fall 2020, Kona RN Rosemary Taylor worked a shift at the North Hawaii clinic. North Hawaii RNs work at other clinics less often./10
With respect to the PD program, there is more evidence of regular temporary interchange of RNs./11
Since at least December 2020, about once or twice per week, Hilo and Kona RNs have treated patients at the North Hawaii clinic and trained North Hawaii RN Greenlee, who is in the process of becoming PD certified./12
For example, Kona RN Jane McClellan worked in North Hawaii about two to three times per week taking care of patients and training Greenlee. Similarly, since at least January 2021, Kona RN Rosemary Taylor has trained Greenlee at the North Hawaii clinic. In or about May and/or June 2021, Hilo RN Carrie Sergeant, and Kona RN Barbara Gampon also worked in North Hawaii. Tara, last name unknown, an RN from Hilo or Kona, is also in the PD training program and has worked at the North Hawaii clinic. In contrast to Greenlee, North Hawaii RN Kaylyn Mattos, works exclusively on the hemodialysis treatment and does not interact with PD RNs when they come to the North Hawaii clinic.
Educators who work at the Hilo clinic have assigned the Hilo and Kona RNs to train Greenlee in North Hawaii. At the time of the hearing, Greenlee was expecting a baby and scheduled to go on maternity leave after the birth of her child. Greenlee is expected to assume PD responsibilities when she returns from maternity leave. The Employer is in the process of hiring additional RNs at the North Hawaii clinic, and if necessary, will use traveler nurses in the interim.
G. Wages, Hours, and Working Conditions
All the RNs who work at the North Hawaii clinic and the existing unit are subject to the Fresenius Medical Care Code of Ethics and Business Conduct and receive the same employee handbook. However, differences in terms and conditions of employment do exist, for the most part, by virtue of the collective bargaining agreement that applies to the existing unit.
With respect to wages, North Hawaii RNs are paid $51.93 and $53.72 per hour, respectively. They are also eligible to receive wage increases based on their level of education (3% to 8% of their base salary) and merit (1% to 5%), as well as quality bonuses ($200-$500). RN's in the existing unit receive $37.75 per hour to $54.93 per hour depending on their length of employment, and a charge nurse differential of about $3.00 per hour. Unit RNs are not eligible to receive any merit/education level wage increases or bonuses. North Hawaii RNs and the existing unit are entitled to receive evening/night differential wages but the wages differ. In addition, North Hawaii RNs receive overtime if they work over 40 hours per week only, but unit RNs receive overtime after working more than 8 hours per day. Paid holidays, as well as when RN can make vacation requests, are also different.
All the clinics on the Big Island are open Monday to Saturday. The North Hawaii clinic is open from about 5:00 a.m. to 9:00 p.m.,/13 the Hilo clinic is open from about 6:00 a.m. to 8:00 p.m. or 11:00 p.m., and the Kona clinic is open from about 5:00 a.m. to 10:00 p.m. North Hawaii RNs and the RNs in the existing unit are generally assigned to work 40 hours per week. North Hawaii RNs work 15 to 16 hour shifts certain days of the week, but RNs in the existing unit work eight (8) hour shifts per the collective-bargaining agreement.
The RNs employed in North Hawaii and those in the existing unit are eligible to receive the same health and dental benefits, but pay different premiums. Both groups are eligible to receive the same retirement plan. In addition, the Employer provides similar benefits to unrepresented RNs and RNs in the existing unit but with different terms, such as tuition assistance, paid jury duty, short-term disability benefits, and leaves of absence. Certain programs are offered to unrepresented RNs at a reduced rate, whereas unit RNs must pay the regular rates for such programs, including legal insurance, life insurance, accident insurance, critical illness insurance, and hospital care coverage. RNs who are not represented by the Petitioner are also eligible to receive some benefits that are not available to unit RNs such as commuter benefit reimbursement, employee referral program bonuses, and certain types of paid leave.
A. Board Law regarding the Armour-Globe Doctrine
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 Armour-Globe doctrine. Under Armour-Globe, employees sharing a community of interest with an already represented unit of employees may vote whether they wish to be included in the existing bargaining unit. NLRB v. Raytheon Co., 918 F.2d 249, 251 (1st Cir. 1990). An incumbent union may petition to add unrepresented employees to its existing unit through an Armour-Globe election if the employees sought to be included share a community of interest with unit employees and "constitute an identifiable, distinct segment so as to constitute an appropriate voting group." Warner-Lambert Co., 298 NLRB 993, 995 (1990) (citing Capital Cities Broadcasting Corp., 194 NLRB 1063 (1972)). See also Rush University Medical Center v. NLRB, 833 F.3d 202, 209 (D.C. Cir. 2016). The burden is on the Petitioner to show that the petitioned-for unit shares a community of interest with the existing unit. Id.
Whether a voting group is an "identifiable, distinct segment" is not the same question as whether the voting group constitutes an appropriate unit. St. Vincent Charity Medical Center, 357 NLRB 854, 855 (2011) (citing Warner-Lambert, above at 995). A certifiable unit need only be an appropriate unit, not the most appropriate unit. International Bedding Co., 356 NLRB 1336, 1337 (2011) (citing Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950), enfd. 190 F.2d 576 (7th Cir. 1951)); see also Overnite Transportation Co., 322 NLRB 723 (1996) (the unit sought need not be the ultimate, or the only, or even the most appropriate unit). In the health care industry, the Board has held that a self-determination election does not implicate undue proliferation because the procedure adds employees to an existing unit and does not result in the creation of a separate, additional unit. St. Vincent Charity Medical Center, supra, at 854.
In PCC Structurals, Inc., 365 NLRB No. 160, slip op. at 1 (2017), the Board re-affirmed the traditional community of interest factors to be considered as follows: whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer's other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised./14
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. Alamo Rent-A-Car, 330 NLRB 897 (2000).
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 Hawaii. Although a significant portion of the record focuses on the RNs who work at the Hilo and Kona clinics, those clinics appear to be representative of the existing unit.
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 North Hawaii clinic and the Petitioner's existing unit. The differences in wages and benefits is the sole factor that somewhat supports the Employer's position that the North Hawaii RNs lack a sufficient community of interest with the existing unit and this factor is not particularly helpful in the Armour-Globe context.
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 North Hawaii have the same skills and perform the same functions, i.e. providing dialysis treatment to patients, assessing those patients, and administering medications. Moreover, the two RNs are supervised by the same clinical manager, are paid a similar wage rate, and are entitled to the same benefits. Since the North Hawaii RNs are an appropriate standalone unit, it is clear the RNs, therefore, constitute a distinct-and-identifiable segment of employees. See St. Vincent, supra, at 855-856.
2. Skills, Functions, and Training
The RNs in North Hawaii and the RNs in the existing unit who are trained to perform hemodialysis and/or PD have the same skills and perform the same functions, receive the same training, and have the same licensing requirements. Prince Telecom, 347 NLRB 789, 793 (2006); Cheney Bigelow Wire Works, Inc., 197 NLRB 1279 (1972). This is evidenced by the fact that RNs work shifts at different clinics and treat patients from different clinics.
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 North Hawaii clinic uses a different bicarbonate delivery system to deliver patient care, the evidence shows that the RNs who work at the Kona and Hilo clinics have worked at the North Hawaii clinic, and vice-versa, and are able to use the different delivery methods of bicarbonate to treat patients. In fact, absent a plant orientation, RNs seamlessly work at different clinics. Accordingly, I find that the nature of the RNs skills and functions weighs in favor of finding a community of interest with the petitioned-for unit.
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. Arvey Corp., 170 NLRB 35 (1968); Transerv Sys., 311 NLRB 766 (1993). Another example of functional integration is when the Employer's workflow involves all employees in the sought-after unit. Evidence that employees work together on the same matters, have frequent contact with one another, and perform similar functions is relevant when examining whether functional integration exists. Transerv Sys., supra.
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 Hilo and Kona have contact with North Hawaii RN Greenlee, one of two petitioned-for RNs. All three clinics on the Big Island appear on the Fresenius Kidney Care dialysis network public web page, and the public can call a central "help line". Patients travel to different clinics to receive dialysis treatment, and PD patients are considered "Kona" patients even though they may receive PD treatment at the North Hawaii clinic. Moreover, RNs use a central database when they need to access patient record at different clinics. Accordingly, I find that the employees comprise a functionally integrated group engaged in the same pursuit and that the factor of functional integration supports the petitioned-for unit in this case.
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 NLRB 429 (1993); Gray Drug Stores, Inc., 197 NLRB 924 (1972); Carter Camera Shops, 130 NLRB 276, 278 (1961). With respect to permanent interchange, RN Gaylyn Mattos transferred from the Kona clinic to the North Hawaii clinic in or about April 2020; RN Elizabeth DeGrood, former clinical manager at North Hawaii is currently an RN at the Hilo clinic; RN Ruby Calibuyot transferred from North Hawaii to Hilo in or about December 2020 or January 2021; and RN Ian Kubo transferred from Hilo to North Hawaii in or about June 2020.
With respect to temporary interchange, in the past six months, RNs from Hilo or Kona have covered about 3 or 4 shifts on the hemodialysis treatment floor in North Hawaii. North Hawaii RNs have worked at other clinics far less often. However, since at least December 2020, there has been significant temporary interchange by virtue of the PD program, such as Kona RN Jane McClellan who worked in North Hawaii and trained Greenlee about two to three times per week. While North Hawaii RN Mattos does not have much contact with the PD RNs in the existing unit, Greenlee, who is half of the petitioned-for unit, has had extensive contact with them. Although the Employer argues that once Greenlee returns from maternity leave, she will perform all of the PD work and RNs from other clinics will not work in North Hawaii, I give more weight to the Employer's pattern of interchange among employees versus speculation regarding what the Employer will do after Greenlee returns from maternity leave.
Moreover, the Employer's reliance on Catholic Healthcare West, 344 NLRB 790 (2005) is misplaced. In that case, there was no evidence of regular temporary interchange or contact among employees, whereas in this case, North Hawaii RN Greenlee has had substantial contact with the PD RNs who work at Hilo and Kona. Moreover, although the Board does not consider permanent transfers as significant as temporary transfers to establish actual interchange, in Catholic Healthcare, unlike in this case, there was no evidence of permanent interchange. See Red Lobster, 300 NLRB 908, 911 (1990). Accordingly, I find that the factor of interchange supports the petitioned-for unit in this case.
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 North Hawaii and the existing unit are paid wage rates within the same approximate range. RNs in North Hawaii are eligible to receive wage increases, including merit or educational wage increases, in part, because they are not covered by the collective-bargaining agreement. Both groups of RNs are eligible for the same health and dental insurance and retirement plans. While North Hawaii RNs are eligible to receive some additional benefits such as paid caregiver and parental leave, unit RNs receive other benefits as set forth in the collective bargaining agreement.
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 North Hawaii facility. Accordingly, differences caused by contract are not useful to the determination of whether an Armour-Globe election is appropriate because the differences exist due to the very issue in the case, i.e. one group of employees is represented and another group is not.
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 Big Island and is ultimately responsible for patient care, supplies, equipment, and the financial needs of each clinic. Biegler works at each clinic in lieu of having her own office. Moreover, a central human resources department is responsible for collective bargaining and is involved in disciplinary matters for all of the clinics. Disciplinary records of employees are kept at each clinic and by the human resources department. Finally, aside from differences that pertain to the collective-bargaining agreement, the RNs are subject to the same handbook and Fresenius policies.
The Employer cites to Avista Utilities, 19-RC-246233 (September 4, 2019) (unpublished) to support its contention that the RNs lack common supervision because they have different first-line supervision. However, the decision in Avista does not show the same level of overarching supervision by the department manager as by Director Biegler over the clinics. Moreover, in Avista, the petitioned-for unit of cooks had different job classifications, functions, and skills from the existing unit which included electricians and machinists, and there was no evidence of interchange among the employees.
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 Big Island and the centralized nature of the Employer's labor relations provide an adequate basis to establish meaningful bargaining over the employees in the unit. See Capital Coors Co., 309 NLRB 322 (1992) (common overall supervision with other factors sufficient to find community of interest despite unit employees' separate immediate supervision).
7. Geographic Distance
The North Hawaii clinic is approximately an hour and a half drive from the Hilo and Kona clinics. Although the facilities are not close to each other, the record shows that the existing unit is already a multi-facility unit, and that the Petitioner and the Employer have engaged in meaningful bargaining with respect to other facilities located on multiple islands in Hawaii. Moreover, RNs who are part of the existing unit and Director Biegler frequent the North Hawaii clinic as part of their work. Accordingly, I do not find that the geographic distance an impediment to finding that the petitioned-for multi-facility unit is an appropriate unit.
8. Bargaining history
There is no evidence that the RNs who work at the North Hawaii clinic have been represented by the Petitioner or any other labor organization.
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 Armour-Globe analysis. Accordingly, analyzed as a whole, the factors support the Petitioner's argument that the RNs who work at the North Hawaii clinic and the RNs in the existing unit share a sufficient community of interest to support the petition. In addition, the above factors support that the multi-location unit sought by the petition is appropriate.
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." NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1122 (3d. Cir. 1982). The principal factors the Board considers in determining whether the integration is sufficient for single-employer status are the extent of: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See, e.g. Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255, 256 (1965); South Prairie Constr. Co. v. Operating Engineers Local 627, 425 U.S. 800, 802, fn. 3 (1976); Spurlino Materials, LLC, 357 NLRB 1510, 1515 (2011); Mercy Hosp. of Buffalo, 336 NLRB 1282, 1283-1284 (2001); Grass Valley Grocery Outlet, 332 NLRB 1449 (2000); Mercy Gen'l Health Partners Amicare Homecare, 331 NLRB 783 (2000).
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. Mercy Gen'l Health Partners, supra, at 784; see AG Comm. Systems Corp., 350 NLRB 168, 169 (2007). A determination of single-employer status does not determine the appropriate bargaining unit.
The Board has regularly found health institutions to constitute a single employer with one another or with their parent corporations. See, e.g., Beverly California Corp., 326 NLRB 232 (1998); Pathology Inst. Inc., 320 NLRB 1050 (1996); Hospital San Rafael, Inc., 308 NLRB 605 (1992); The Child's Hospital, 307 NLRB 90 (1992). For example, in Northern Montana Health Care Ctr., a subsidiary of Northern Montana Health Care, Inc., 324 NLRB 752 (1997), the Board upheld the administrative law judge's finding that a non-acute long-term patient care center, a hospital, and their parent corporation constituted a single employer. In so doing, the judge noted, in part, that there was common ownership, a common president, a chief executive officer, and centralized control of labor relations. See also Avanti Health System, LLC, 357 NLRB 1661 (2011) (Board upheld administrative law judge's finding of single employer status, in part due to common managers and policies at two hospitals.) Cf. Mercy Gen'l Health Partners, supra, at 783 (Board overturned regional director's finding of single employer status because subsidiaries each had completely separate management structures that did not interact, employees were subject to separate personnel policies, were separately supervised, and did not interchange with each other).
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 North Hawaii, Hilo and Kona clinics, including the purchasing of supplies and equipment, which implies that all three clinics have a financial relationship. Accordingly, I find that common ownership weighs in favor of finding single employer status.
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 Big Island. Biegler reports to Jocelyn Saccamago, Regional Vice-President who, in turn, reports, to Chris Smith, the General Manager, both of whom are employed by Fresenius and manage the facilities at issue. In addition, aside from the requirements of the collective-bargaining agreement, the clinical manager and Director Biegler apply the same policies, procedures, and code of conduct to the RNs who work at these facilities. It is implied that clinical managers communicate with each other and/or through Director Biegler, by virtue of the fact that RNs from the existing unit perform work at the North Hawaii clinic to cover shifts or as part of the PD program.
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. Sprinkler Fitters Union 699, 365 NLRB No. 83 (2017) (Board upheld administrative law judge's conclusion that subsidiaries did not constitute a single employer where managers or supervisors among entities did not overlap and each entity operated independently).
3. Centralized Control of Labor Relations
There is also a centralized human resources department. Although Lead Employee Relations Manager Desiree Simone-Cullen focuses on the existing unit and Senior Employee Relations Manager Battles focuses on the unrepresented clinics, such as North Hawaii, this does not appear to be a formal division of labor. As such, the record shows that Simone-Cullen has assisted in matters dealing with the North Hawaii clinic. Moreover, the labor relations managers report to the same vice-president of human resources and ultimately, fall under the same supervisory hierarchy for all the Fresenius clinics. Moreover, the RNs who work in North Hawaii and the existing clinics are subject to the same overall policies and employee handbook. Accordingly, I find that the centralized control of labor relations weighs in favor of single-employer status.
4. Interrelationship of Operations
The evidence shows that the North Hawaii clinic and the clinics in the existing unit have interrelated operations. See Centurion Auto Transport, Inc. 329 NLRB 394 (1999). All the clinics on the Big Island, and it appears all the Fresenius clinics, share the same website, and the same telephone help line. Director Biegler is responsible for the finances of all the clinics on the Big Island, which shows that the entities have a financial relationship. The same employee handbook and code of ethics and conduct applies to all of the Fresenius clinics, and the same health and dental insurance and retirement plans are applicable to the North Hawaii RNs, as well as those in the existing unit.
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 North Hawaii clinic for the PD program. PD patients are considered "Kona" patients, whether or not they receive care at the North Hawaii clinic. The patient records are kept on the same database, and RNs are allowed to access patient records from other clinics, as necessary to perform their work. The record also shows that bio-medical employees and/or educators bring supplies from one clinic to another, as needed, and the clinics share a CPR mannequin. Cf. Mercy Gen'l Health Partners, supra, at 783.
Finally, as explained in detail above, there is both permanent and temporary interchange among the RNs who work at North Hawaii and the existing unit. At the supervisory level, Director Biegler is the former clinical manager of the North Hawaii clinic. Elizabeth DeGrood, former clinical manager at North Hawaii is currently an RN at the Hilo clinic. Accordingly, I find that the operations of the North Hawaii clinic and the clinics in the existing unit weigh in favor of finding single-employer status.
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.
Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to ensure the fair and free choice of bargaining representatives, and the Board, in turn, has delegated the discretion to determine the arrangements for an election to Regional Directors, including the ability to direct a mail ballot election where appropriate. Ceva Logistics US, 367 NLRB 628, 628 (2011) (cases cited therein); San Diego Gas & Electric, 325 NLRB 1143, 1144 (1998) (citing NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946); Halliburton Services, 265 NLRB 1154, 1154; National Van Lines, 120 NLRB 1343, 1346 (1958)). "It is well established that a Regional Director has broad discretion in determining the method by which an election is held, and whatever determination a Regional Director makes should not be overturned unless a clear abuse of discretion is shown." Nouveau Elevator Industries, Inc., 326 NLRB 470, 471 (1998) (citing San Diego Gas at 1144 fn. 1; National Van Lines at 1346).
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. San Diego Gas, above at 1145. Thus, while there is a clear preference for conducting manual elections in ordinary circumstances, Board law vests Regional Directors with discretion to order a mail ballot election under the guidelines in San Diego Gas, including extraordinary circumstances, and provides that Regional Directors should tailor the method of conducting an election to "enhance the opportunities of all to vote." Ibid.
The Employer argues that a mail ballot election is not warranted under the Board's decision in Aspirus Keweenaw, 370 NLRB No. 45 (2020), which addresses the propriety of mail ballot elections in the context of the COVID-19 pandemic. In its post-hearing brief, the Employer cited to COVID-19 positivity rate statistics that were current as of June 24, 2021, the most recent statistics available at the time that the brief was submitted. However, as of July 26, 2021, the most recent statistics to date, the 14-day trend in the number of new confirmed cases of Covid-19 in Hawaii County (where the North Hawaii Clinic is located) is increasing./16
In addition, the 14-day testing positivity rate in Hawaii County is at 5.9%, higher than the minimum 5% percent allowed for in Aspirus Keweenaw. The Hawaii County COVID statistics reflect a 201% increase in new cases in the previous 14-day period. In addition, the statewide positivity rate is at 4.6% (reflecting a 139% increase in new cases over the previous 14 days) and continues to rise as more travelers visit the state from other parts of the country. This increased travel from the mainland and between the islands is particularly relevant because in this case, a Board Agent (and possibly the party representatives) must fly from Oahu/17 to the Big Island, exposing themselves to all other travelers on the plane and at the airports.
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 North Hawaii clinic constitute a distinct, identifiable voting group that shares a community of interest with the existing unit; (2) that Liberty Dialysis-North Hawaii and Liberty Dialysis-Hawaii constitute a single employer; and (3) that a mail ballot election is appropriate under the circumstances 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. Based upon the entire record in this matter and in accordance with the discussion above, I conclude and find as follows:
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 67-1123 Mamalahoa Hwy., Suite 112, Waimea, HI 96743, excluding confidential employees, managers, guards, and supervisors as defined by the Act.
VI. DIRECTION OF ELECTION
The National Labor Relations Board will conduct a secret ballot election among the employees in the unit found appropriate above. Employees will vote whether or not they wish to be represented for purposes of collective bargaining by Hawaii Nurses' Association, OPEIU Local 50, the Petitioner. If a majority of valid ballots are cast for representation by the Petitioner, they will be taken to have indicated the employees' desire to be included in the existing unit of registered nurse employees currently represented by the Petitioner. If a majority of the valid ballots are not cast for representation, they will be taken to have indicated the employees' desire to remain unrepresented.
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 National Labor Relations Board, SubRegion 37 (Region 20), on August 5, 2021. Voters must sign the outside of the envelope in which the ballot is returned. Any ballot received in an envelope that is not signed will be automatically void. Voters must return their mail ballots so that they will be received in the National Labor Relations Board, SubRegion 37 office by close of business on August 26, 2021. In order to be valid and counted, the returned ballots must be received at the SubRegion 37 office prior to the counting of the ballots.
All ballots will be commingled and counted at a location to be determined by the Regional Director at 1:00 p.m. on August 30, 2021./19
Any person who has not received a ballot by noon on August 16, 2021, should immediately contact the SubRegion 37 office at (808) 541-2814 with the National Labor Relations Board, or by either calling the Region 20 Office at (415) 356-5130 or our national toll-free line at 1-844-762-NLRB (1-844-762-6572).
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 July 30, 2021. The list must be accompanied by a certificate of service showing service on all parties. The Region will no longer serve the voter list.
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 Times New Roman 10 or larger. That font does not need to be used but the font must be that size or larger. A sample, optional form for the list is provided on the NLRB website at www.nlrb.gov/what-we-do/conduct-elections/representation-case-rules-effective-april-14-2015.
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 12:01 a.m. on the day of the election and copies must remain posted until the end of the election. For purposes of posting, working day means an entire 24-hour period excluding Saturdays, Sundays, and holidays. However, a party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting, and likewise shall be estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution.
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, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. A party filing a request for review must serve a copy of the request on the other parties and file a copy with the Regional Director. A certificate of service must be filed with the Board together with the request for review.
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.
Dated: July 28, 2021
Dale K. Yashiki, Acting Regional Director
National Labor Relations Board, Region 20
901 Market Street, Suite 400
San Francisco, California 94103
* * *
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 Liberty Dialysis-North Hawaii LLC, a Hawaii limited liability company with a place of business in Kamuela, Hawaii, has been engaged in providing outpatient medical care. During the past twelve-month period ending May 31, 2021, Liberty Dialysis-North Hawaii LLC derived gross revenues in excess of $250,000, and during the same period, it purchased and received good and supplies in excess of $5,000 directly from suppliers outside the State of Hawaii. The parties also stipulated, and I find, that Liberty Dialysis-North Hawaii LLC is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act ("the Act") and is subject to the jurisdiction of the National Labor Relations Board (the Board). Additionally, the Employer stipulated, and I find that Bio-Medical Applications of California, Inc., a Delaware corporation with an office and place of business in various locations in Hawaii, and Liberty Dialysis-Hawaii, LLC, a Hawaii limited liability company with an office and place of business in various locations in Hawaii, have both been engaged in providing outpatient medical care. During the past twelve-month period ending May 31, 2021, Bio-Medical Applications of California, Inc. and Liberty Dialysis-Hawaii LLC have both separately and jointly derived gross revenues in excess of $250,000, and during the same period have purchased and received, both separately and jointly, goods and supplies in excess of $5,000 directly from suppliers outside the State of Hawaii. The parties also stipulated, and I find, that Bio-Medical Applications of California, Inc. and Liberty Dialysis-Hawaii LLC are each separately, and together jointly, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and are subject to the jurisdiction of the Board.
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 State of Hawaii and who are working as registered nurses ... employed by the Employer at its Hawaii facilities."
7/ Queens Medical Center is an investor in the joint venture. The record is silent regarding the nature of the relationship between the physician partners and Liberty Dialysis-North Hawaii.
8/ The record is silent regarding what the nature of the relationship between Bio-Medical Applications of California, Inc. and Liberty Dialysis-Hawaii.
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 October 2020, North Hawaii RN Gaylyn Mattos covered two shifts at the Kona clinic.
11/ Sign-in sheets for the North Hawaii clinic covering certain dates from December 2020 to early June 2021, show that Jane McClellan worked at the facility 36 times and Carrie Sergeant worked at the facility six (6) times.
12/ RN Mattos, the other RN employed in North Hawaii, is not certified or in training to perform PD work and does not have contact with the PD nurses from Hilo and Kona when they work in the North Hawaii clinic.
13/ The Employer's website states that the North Hawaii clinic is open from 5:00 a.m. to 4:00 p.m. or 7:00 p.m. depending on the day of the week, but the North Hawaii RNs testified that they work until 9:00 p.m. on certain days of the week.
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 PCC Structurals, Inc., 365 NLRB No. 160 (2017), which overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011). The Board has indicated that Specialty Healthcare was not the correct standard for determining whether an Armour-Globe self-determination election was appropriate, and this remains true after PCC Structurals. See Republic Services of Southern Nevada, 365 NLRB No. 145, slip op. at 1, fn. 1 (2017).
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"); Patient Care, 360 NLRB 637, 638 (2014) (citing Solvent Services, 313 NLRB 645, 646 (1994); Superior Industries, 289 NLRB 834, 837 fn. 13 (1988)); San Diego Gas, above at 1145 fn. 5 (and cases cited therein). See also Sunnyvale Medi