NLRB Issues Decision on Mountain View Health Care & Rehabilitation Center

WASHINGTON, June 24 -- The National Labor Relations Board issued the following decision and direction of election (Case 04-RC-241150) by Region 4 Director Dennis P. Walsh:

MOUNTAIN VIEW HEALTH CARE AND REHABILITATION CENTER, LLC, Employer

and

RETAIL WHOLESALE AND DEPARTMENT STORE UNION (RWDSU), Petitioner

REGIONAL DIRECTOR'S DECISION AND DIRECTION OF ELECTION

The parties dispute the unit placement of a group referred to as "PRN" Certified Nursing Assistants (CNAs). The Petitioner seeks an election to determine whether those employees wish to be represented in an already-certified unit of full and part-time CNAs. The Employer contends that they do not share a sufficient community of interest with that unit and therefore should not be allowed to decide whether they want to join it. The parties have stipulated, however, that the PRN employees only differ from the full and part-time CNAs in a couple of respects, i.e., they do not receive certain benefits and they are scheduled differently. Because there is no dispute that they share a community of interest with the existing unit in all other respects, I am directing an election to allow them to decide whether they want to be included in that unit.

Petitioner (Retail Wholesale and Department Store Union) seeks a self-determination election, commonly referred to as an Armour Globe/1 election, to ascertain whether approximately 47 PRN Certified Nursing Assistants (CNAs), Flex-time CNAs, Super Flex-Time CNAs, and Per Diem CNAs (collectively referred to as PRN CNAs)/2 wish to be included in an existing unit of all full time and part-time CNAs and Restorative Aides./3 The Employer (Mountain View Health Care and Rehabilitation Center, LLC) contends, however, that the unit is inappropriate because the petitioned-for-unit does not share a sufficient community of interest with the existing bargaining unit as they have different benefits and rules for assignment. Because the classifications perform the same duties, share common supervision, and have the same skills and training, I have concluded that the petitioned-for-unit share a community of interest with the existing unit, and shall order the petitioned-for Armour-Globe election.

BOARD LAW

A. Armour-Globe Elections

An Armour-Globe self-determination election permits employees who share a community of interest with a unit of already represented employees to vote on whether to join the existing unit.

NLRB v. Raytheon Co., 918 F.2d 249, 251 (1st Cir. 1990); Armour & Co., supra; Globe Machine & Stamping Co., supra. The Board has long recognized that a self-determination election is the proper mechanism by which an incumbent union adds unrepresented employees to its existing unit 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).

B. Community of Interest

The Act requires that a petitioner seek representation of employees in an appropriate unit, not the most appropriate unit possible. Overnite Transportation Co., 322 NLRB 723 (1996); P.J. Dick Contracting, Inc., 290 NLRB 150 (1988); Morand Bros. Beverage, 91 NLRB 409, 418 (1950), enfd. 190 F.2d 576 (7th Cir. 1951). Procedurally, the Board examines the petitioned-for unit first. If that unit is appropriate, the inquiry ends. Wheeling Island Gaming, Inc., 355 NLRB 637, fn. 2 (2010); Bartlett Collins Co., 334 NLRB 484 (2001). It is only where the petitioned-for unit is not appropriate that the Board will consider alternative units which may or may not be units suggested by the parties. Bartlett Collins Co., supra; Overnite Transportation Co., 331 NLRB 662, 663 (2000).

In PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the Board reinstated the traditional community-of-interest standard for assessing the appropriateness of a petitioned-for unit. When deciding whether a group of employees shares a community of interest, the Board considers whether the employees sought are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work; 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. Id. slip op. at 11 (quoting United Operations, Inc., 338 NLRB 123, 123 (2002)); Park Manor Care Center, Inc., 305 NLRB 872 (1992) (examining these factors in a nonacute healthcare facility). All relevant factors must be weighed in determining community of interest.

In determining whether per diem or on-call employees should be included in a unit with regular full-time employees, the Board considers the similarity of the work performed and the regularity and continuity of employment. S.S. Joachim & Anne Residence, 314 NLRB 1191, 1193 (1994); Trump Taj Mahal Casino Resort, 306 NLRB 294, 295 (1992). The Board's objective in deciding the eligibility of per diem nurses, for example, is "to distinguish 'regular' part-time employees from those whose job history with the employer is sufficiently sporadic that it is most accurately characterized as 'casual.'" Sisters of Mercy Health Corp., 298 NLRB 483, 483 (1990).

The Board has included per-diem RNs in a single bargaining unit with regularly scheduled RNs when they performed the same work and were regularly employed. Id. To determine whether they are regularly employed, the Board has utilized the eligibility formula set forth in Davison-Paxon Co., 185 NLRB 21, 24 (1970). To be eligible to vote under this formula, per-diem employees must work an average of four or more hours per week in the 13 weeks preceding the election eligibility date. S.S. Joachim & Anne Residence, supra; Sisters of Mercy Health Corp., supra. The Board has generally not found that per-diem RNs have a separate community-of-interest warranting a unit separate from other RNs at a single medical facility. See S.S. Joachim & Anne Residence, supra; Sisters of Mercy Health Corp., supra.

APPROPRIATENESS OF THE PETITIONED-FOR UNIT

The Employer, a Pennsylvania corporation, provides rehabilitation services and nursing home care to patients at its Scranton, Pennsylvania facility. The Petitioner has represented all fulltime and regular part-time CNAs and Restorative Aides at the Employer's Scranton facility since the Union was certified on June 14, 2018 in Case 04-RC-220072.

The parties stipulated that the petitioned-for-unit and the existing bargaining unit share a community of interest in all but two factors: rules of assignment and benefits. Accordingly, the petitioned-for-unit of PRN CNAs and the regular full and part-time CNAs and Restorative Aides share all the other community of interest factors, including common supervision and having the same duties, skills and training.

The parties stipulated that two documents detailing the different rules of assignment and different benefits demonstrated the only differences between the PRN CNAs and the existing bargaining unit. PRN employees can only be scheduled by Nursing Administration, Staffing Coordinator or Department Head, and full-time and part-time CNAs cannot request PRNs to replace them in schedules without prior authorization. There are different requirements for the PRN CNAs who were hired before February 2018 and those hired after February 2018. PRNs hired after February 2018 are required to work one weekday and weekend shift per month while PRNs hired prior to February 2018, only had to work one shift in a 90-day period. For PRN/Flex employees hired after February 2018, they are required to work one weekday shift and one weekend shift. PRN Super Flex employees are required to work eight weekday shifts and one weekend shift. The Employer mandates that PRN/Flex employees work one holiday in the summer and one holiday in the winter and are paid time and half for working the holiday. Full and parttime CNAs are required to work every other weekend and every other holiday. Full and part-time CNAs also receive time and half for working a holiday, but full-time employees have the option of receiving an additional day's pay or an additional day off within 30 days.

Unlike the full-time and part-time employees, none of the PRN CNAs receive any benefits including PTO, health, dental, vision, 401(k), life insurance or bereavement leave. PRN/Flex employees receive an additional $3.00/hour and all PRN/Flex and Super Flex employees receive a shift differential for working from 3 p.m. until 11 p.m. and from 11 p.m. until 7:00 a.m. However, there is no record evidence regarding the hourly rate or any applicable shift differentials for the regular full and part-time CNAs.

The parties stipulated during the hearing that PRN CNAs can consistently be scheduled to work in a certain wing for continuity of care reasons with patients or clients. As PRN CNAs can cover shifts performed by regular CNAs as long as there is supervisory approval, the record establishes a certain interchangeability and functional integration. The stipulated evidence regarding the rules of assignment for PRN CNAs simply establishes that a supervisor needs to approve a PRN CNA's schedule, including when a PRN CNA replaces a regular CNA on the schedule. Supervisory approval for scheduling purposes does not outweigh the interchangeability of the employees where PRN CNAs perform the same work as the full and part-time CNAs.

The Board has long held that part-time employees who do not receive the Employer's fringe benefits will not be excluded from the bargaining unit solely on that basis, especially when the employees share a community of interest with the rest of the bargaining unit. Quigley Industries, Inc., 180 NLRB 486 (1969); see also Six Flags/White Water &American Adventures, 333 NLRB 662 (2001) (seasonal maintenance employees' exclusion from participating in various fringe benefits does not, by itself, support excluding them from the bargaining unit). The PRN CNA's work is essentially identical to the full and part-time CNAs. As the PRN CNAs and the existing bargaining unit CNAs perform exactly the same duties alongside each other, the differences in their scheduling and benefits, including any difference in compensation, are not significant enough to require separate units. See Wheeling Island Gaming, Inc., 355 NLRB 637 fn. 2 (2010). I reject the Employer's argument that the size of the petitioned-for unit requires a separate bargaining unit as this is not a critical factor which would outweigh all the other substantial factors in favor of finding a community of interest between the two groups of employees.

In its Notices of Proposed Rulemaking generally setting forth the appropriate units in acute care hospitals, the Board commented that in non-acute hospitals: [T]here is less diversity in nursing homes among professional, technical and service employees, and the staff is more functionally integrated [cites to testimony omitted]. Generally, nurses provide a less intensive, lower level of care to patients in skilled and extended care facilities, and thus receive lower salaries than that paid in acute care hospitals [cites to testimony omitted]...[T]here is for the most part little difference in the duties of LPNs and nurses' aides [cites testimony omitted]. Both are primarily responsible for providing nursing care to patients.

Park Manor, supra, 365 NLRB at 876 (citing 53 Fed.Reg. 33928, 284 NLRB 1516, 1567 (1987)). Similar to RNs and LPNs, in the instant case, both the PRN CNAs and the employees in the existing bargaining unit are primarily responsible for providing care to patients.

I find that the petitioned-for-unit for PRN CNAs constitutes a readily identifiable group, and they share a community of interest with the existing bargaining unit based on all the community of interest factors that they share, including performing the same duties, common supervision, interchange, and having the same skills and training as the bargaining unit CNAs. I find that any differences in scheduling and benefits are not significant enough to warrant a finding that these classifications do not share a community of interest. Since the petitioned-for employees share a community of interest with the employees in the existing bargaining unit, I find that an Armour Globe election is appropriate and I shall order an Armour Globe election to determine whether the petitioned-for employees wish to be included in the existing bargaining unit.

CONCLUSION

Based upon the entire record in this matter and in accordance with the discussion above, I conclude and find as follows:

1. The rulings made 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.

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, if added to the existing unit,

constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act:

Included: All PRN Certified Nursing Assistants (CNAs), Flex-time CNAs, Super Flex-Time CNAs, and Per Diem CNAs/4 employed by the Employer at its facility located at 2309 Stafford Avenue, Scranton, Pennsylvania.

Excluded: All other employees, guards and supervisors as defined in the Act.

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 Retail Wholesale and Department Store Union (RWDSU) as part of the existing unit of full-time and regular part-time Certified Nursing Assistants (CNAs) and Restorative Aids employed by the Employer at its 2309 Stafford Avenue, Scranton, Pennsylvania facility.

A. Election Details

The election will be held on Monday, July 15, 2019 from 6:00 a.m. - 8:00 a.m. and 2:00 p.m. - 4:00 p.m. in the Chapel at the Employer's facility located at 2309 Stafford Avenue, Scranton, Pennsylvania.

B. Voting Eligibility

Eligible to vote are those in the unit who were employed during the payroll period ending June 22, 2019 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. Unit employees in the military services of the United States may vote if they appear in person at the polls.

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 June 26, 2019. 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

Pursuant to Section 102.67(k) of the Board's Rules, the Employer must post copies of the Notice of Election accompanying this Decision in conspicuous places, including all places where notices to employees in the unit found appropriate are customarily posted. The Notice and the ballots will be published in the following languages: English and Spanish. 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. of 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. 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 14 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.

A request for review may be E-Filed through the Agency's website but may not be filed by facsimile. 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.

Dated: June 24, 2019

DENNIS P. WALSH, REGIONAL DIRECTOR

NATIONAL LABOR RELATIONS BOARD

REGION 04

100 E Penn Square

Suite 403

Philadelphia, PA 19107

* * *

1/ The procedures is so named because it originated in Globe Machine & Stamping Co., 3 NLRB 294 (1937), and was refined in Armour & Co., 40 NLRB 1333 (1942).

2/ The term PRN or flex refer to the same group of employees.

3/ There is no evidence in the record concerning the number of employees in the existing bargaining

unit.

4/ Employees in the unit are eligible to vote if they worked an average of four or more hours of work per week in the 13 weeks preceding the election eligibility date. Sisters of Mercy Health Corp., 298 NLRB 483 (1990); Davison-Paxon Co., 185 NLRB 21 (1970).