NLRB Regional Director Issues Decision on Sharp Healthcare v. AFL-CIO

WASHINGTON, March 13 -- The National Labor Relations Board issued the following decision by Regional Director William B. Cowen on Sharp Healthcare v. AFL-CIO:

DECISION AND DIRECTION OF ELECTION

Sharp Professional Nurses Network, United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO1 (Petitioner) filed a petition in the instant case under Section 9(c) of the National Labor Relations Act (the Act) seeking to add certain non-acute care registered nurses working at the Employer's clinics and urgent-care facilities, to its existing bargaining unit of Sharp Healthcare acute-care registered nurses. More specifically, in its petition, as amended, the Petitioner seeks an Armour-Globe self-determination election in which employees in the classifications of (Primary Care) Registered Nurse (Primary Care) RN, Registered Nurse-Triage (RN-Triage), Gastroenterology Registered Nurse (GI-RN), CT/MRI Registered Nurse (CT/MRI RN), Ophthalmology RN, Urgent Care Registered Nurse (UC RN), and Staff Development Specialist Registered Nurse2 would vote whether or not they wish to be included in an existing bargaining unit of acute-care registered nurses. Should I find a self-determination election to be inappropriate, the Petitioner has indicated a willingness to proceed to an election in any unit that I find appropriate.

The Petitioner claims that the petitioned-for unit, as amended, constitutes a distinct, identifiable group and the petitioned-for unit shares a community of interest with the Sharp Healthcare bargaining unit registered nurses (RNs) who work primarily at acute-care hospitals.

Both Petitioner and the Employer agree that Sharp Healthcare is an acute-care facility and that the Sharp Rees-Stealy (SRS) facilities are non-acute care facilities. However, the parties disagree as to the composition of the Sharp Healthcare RN bargaining unit. One the one hand, the Employer argues that it is a conforming unit under the Board's Health Care Rule. On the other hand, the Petitioner argues that it is a non-conforming unit because it is under inclusive in that it does not include all RNs working within the acute-care hospitals and it includes RNs who work outside of the acute-care hospitals in the traditional registered nurse unit. The Employer also contends that a self-determination election would be inappropriate because the Petitioner's request to add some SRS RNs to an acute-care hospital RN unit is not supported by case law. Additionally, the Employer claims that the petitioned-for unit, as amended, should include the classifications of Case Manager RN, Diabetes Specialist Educator RN, Cardio RN, and Pacemaker Clinic RN, because these excluded classifications share an overwhelming community of interest with the petitioned-for unit, as amended, and there is no rational basis for excluding these four classifications.

On December 30, 2016, and January 3, 4, 5, 6, 9, 10 and 11, 2017, a Hearing Officer of the Board held a hearing in this matter; the parties orally argued their respective positions, and thereafter each submitted a Memorandum of Points and Authorities. I have considered the record and relevant case law. For the reasons discussed below, I find the following:

1) an Armour-Globe election would not be appropriate in this case where Petitioner seeks to add some RNs working in SRS non-acute care facilities to a unit of RNs working at Sharp Healthcare acute-care facilities;

2) an SRS multi-facility unit would be appropriate because employees at the Employer's urgent-care centers and clinics share a community of interest; and

3) the petitioned-for unit, as amended, of (Primary Care) RN, RN-Triage, GI-RN, CT/MRI RN, Ophthalmology RN, and UC RN is a readily identifiable group based on classification and department, and employees in the petitioned-for unit share a community of interest. However, the excluded classifications of Case Manager RN, Diabetes Specialist Educator RN, Cardio RN, and Pacemaker Clinic RN should also be included in the petitioned-for unit because they share an overwhelming community of interest with the petitioned-for classifications, as amended, and there is no rational basis for excluding these four classifications.

I. The Employer's Operations and Hierarchy

Sharp Healthcare operates seven acute-care facilities in San Diego County. Since 1998, through a Board certification, Petitioner has represented a unit of acute-care RNs working at Sharp Healthcare. Currently, the Sharp Healthcare acute-care unit of RNs consists of about 5,000 members.3

Sharp Rees-Stealy Medical Group, Inc. (SRS Group) is a professional medical corporation composed of physicians licensed to practice medicine in the State of California. The physicians work out of the Sharp Rees-Stealy (SRS) facilities. The SRS facilities are owned or leased by Sharp Healthcare, which has an agreement with the SRS Group to provide nonphysician staff for the SRS facilities. SRS is an operational division within Sharp Healthcare. SRS provides full services from primary care to specialty care. SRS consists of: five urgent-care centers (which are open 365 days a year); seven retail pharmacies; 22 clinics (two of which are connected to urgent-care centers and are typically only open Monday through Friday); and four administrative locations. All of the SRS facilities are located in San Diego County.

SRS is headed by Senior Vice President and CEO Stacey Hrountas, who reports to Sharp Healthcare CEO Michael Murphy. SRS is divided into three general divisions: (1) Patient Care Services, (2) Health/Provider Services, and (3) Ancillary Services. Vice President and Chief Nursing Officer Katherine Rief (Rief) oversees the Patient Care Services division. Patient Care Services consists of the operation of the SRS clinics, which includes the patients seen at the SRS facilities, who receive either primary and/or specialty care treatment. Typically, each department at each SRS facility has its own local supervisor. Those supervisors in turn report to a director.

The Directors reporting to Rief include Mary Jo Webb, Director of SRS Nursing Services; and David Byron, Director of SRS Urgent Care, Staff Development and Special Projects. The Health/Provider Services division involves case and patient management.

Health/Provider Services is headed by Vice President Vicki DeBaca (DeBaca). The Directors reporting to DeBaca include Janet Appel, Director of SRS Population Health; Kara Bourne, Director of SRS Utilization Management; and Paula Burich, Director of SRS Health Management and Patient Support. The third division is the Ancillary Services division, in charge of radiology, laboratory, and pharmacy. The department is headed by Melissa Korican.

However, RNs working in the classifications of CT/MRI are managed by Rief since Korican lacks an RN license. Christopher Hayman, Director of SRS Ancillary Services, reports to Korican.

II. Employee Classifications

Petitioner petitioned for employees in the following classifications: (Primary Care) RN, RN-Triage, GI-RN, CT/MRI RN, Ophthalmology RN, and UC RN. There are four employee classifications as to which the parties disagree whether they should be included or excluded from the petitioned-for unit: Case Manager RN, Diabetes Specialist Educator RN, Cardio RN, and Pacemaker Clinic RN.4 These four employee classifications were originally included in the petition-for unit. At the hearing, Petitioner amended the petition to exclude these four employee classifications, arguing that these four employee classifications do not share a community of interest with the petitioned-for unit, as amended.

Full-time RNs working in the urgent-care centers work 12-hour shifts, three times a week, while full-time RNs working at the clinics work either an 8- or 10-hour shift. All of the RNs in the petitioned-for unit share the professional license and training requirements to be a registered nurse. SRS operates a central HR Department that handles all matters pertaining to human resources and labor relations for all SRS employees. Regardless of classification or department, all RNs enjoy the same benefit options (such as health, dental, life insurance, disability benefits, retirement package, and paid time-off). As such, personnel-related documents pertaining to employees are all maintained in the same Taleo computer system and employee information is coded on the same Lawson system.

The hourly wage rate of all SRS RNs is determined under the same compensation model. Seniority (based on years of service) is calculated in the same manner for all SRS RNs, and honored when employees transfer to other departments. Likewise, disciplinary rules and policies are the same for all SRS RNs. SRS RNs also attend the same orientation program dedicated to SRS general procedures, and most attend common competency training and other Employer programs. Additionally, all RNs are required to attend the same orientation program, and all employees are encouraged to attend the "Sharp Experience," an annual 2-day event.

A. Petitioned-for Employee Classifications

(Primary Care) RN is the basic classification of RN within SRS for registered nurses who do not have a specific specialization, and who work in a number of different departments providing basic nursing functions. In total, there are about 46 RNs that fall within this classification who work throughout the Employer's clinics: (Scripps Ranch, Rancho Bernardo, Central Downtown, South Chula Vista, Sorrento Mesa, Grossmont Medical Plaza, Del Mar, Carmel Valley, Central Point Loma, Murphy Canyon, Central San Diego Admin, Frost Street, and SRS Administration). Each clinic typically has its own RN supervisor. Mary Jo Webb (Webb) is the director in charge of overseeing all of the departments in which Primary Care RNs work (Allergy, Dermatology, Family Medicine, Internal Medicine, IM/Peds, MSK Clinic, Nursing Float Pool, Occupational Medicine, Orthopedic Surgery, SDM Nursing Float Pool, and Wound Healing Clinic).

Urgent Care RNs (UC RN) are responsible for triaging the patients admitted at an urgentcare center. The UC RNs work with an urgent-care doctor in developing and implementing a patient's treatment plan. SRS employs about 90 urgent-care RNs who work in one of the five urgent-care centers (Sorrento Mesa, Rancho Bernardo, Central Downtown, South Chula Vista, and Grossmont Medical Plaza). Similarly, each urgent-care center has a local supervisor who supervises the Urgent Care RNs. David Byron, Director Urgent Care Staff Development and Special Projects, oversees all five urgent-care centers.

Triage RNs are primarily responsible for answering telephone calls from SRS patients seeking medical advice. There are about 20 Triage RNs working at nine of the SRS clinics (Otay Ranch, Rancho Bernardo, Central Downtown, Chula Vista, Sorrento Mesa, Scripps Ranch, Del Mar, Central San Diego Administration, and Grossmont Medical Plaza). Again, each facility has a Triage RN supervisor. Webb oversees the departments that employ Triage RNs (Family Practice, Internal Medicine, Obstetrics/Gynecology, and Pediatrics).

Gastroenterology RNs (GI RN) are generally divided into doctor's nurses and procedural nurses, although many of the GI RNs perform both duties. Procedural nurses assist physicians in performing a number of medical procedures, including colonoscopies, endoscopies, and PEG tube placements. As a doctor's nurse, GI RNs work with a doctor managing his/her patients, including following up with patients. In total, there are about 40 GI RNs who work at Scripps Ranch or the San Diego Administration clinic. Jenina Saphara supervises the GI RNs working at Scripps Ranch, and Rayni Largent supervises the GI RNs working at Central San Diego Administration. Again, Webb is responsible for overseeing this department. CT/MRI Registered Nurses (CT/MRI RN) are responsible for performing CT scans or MRI scans on patients. They also provide patient education and conscious sedation for patients undergoing these procedures. CT/MRI RNs also monitor pediatric patients who have been anesthetized. There are three employees in this classification who work at the North Mira Vista clinic, and are all supervised by Blong Thao. As noted above, even though the CT/MRI RNs are organized under the Ancillary Services division, overseen by Melissa Korican, it is Patient Care Services VP Rief who is ultimately responsible for these RNs.

Lastly, the Ophthalmology RNs assist ophthalmologists in the clinic with a variety of procedures. This involves things such as providing injections required for retinal pictures of the vasculature around the eye. There is only one employee in this classification, who works out of the Outpatient Pavilion clinic and is supervised by Martin Deleon. Webb also oversees this department.

B. Excluded Employee Classifications from the Amended Petitioned-for Unit

1. Case Managers

Case Managers are divided across a number of specializations with four different job titles (Primary Care Case Managers, Inpatient Case Managers, Diabetes Care Management Case Managers, and Utilization Management Case Managers) and work distinctions. However, regardless of their specialization or job title, case managers' job duties are essentially the same: working as liaisons between the patient and the care team. Primary Care Case Managers (also known as Chronic Care Case Managers under the Population Health Department) are generally responsible for following-up with patients once they have been discharged from a Sharp Healthcare hospital or a skilled-nursing facility. There are about 26 employees in this classification working out of 10 SRS clinics, with 10 employees telecommuting, and these employees occasionally come into the facilities to meet with patients. Janet Appel is the Director of the Population Health Department.

The Inpatient Case Managers perform a similar role. While the Inpatient Case Managers do not work out of the SRS clinics or urgent-care facilities, but instead work at one of the Sharp Healthcare acute-care hospitals, the Inpatient Case Managers are generally working with an SRS physician in the care of a former SRS patient who has been admitted into a Sharp Healthcare hospital. In total, there are seven Inpatient Case Managers who report to Melanie Payawal, the Inpatient Case Management Manager; she in turn reports to Kara Bourne, the Director of Utilization Management.

Likewise, Diabetes Care Management Case Managers perform a similar role to that of the Primary Care Case Managers and Inpatient Case Managers, but specifically oversee patients with diabetes. There are 14 employees in this classification. Janet Appel, the Director of Population Health, is responsible for this department. The Diabetes Care Management Case Managers work out of nine SRS clinics, with three of them telecommuting. However, depending on their patients' needs, Diabetes Care Management Case Managers will travel to the various SRS clinics to meet with patients.

Similarly, the Utilization Management Case Managers perform the same tasks as the other case managers, but specifically work with patients who require either high-cost services or services required outside of Sharp Healthcare or the SRS clinics. In this role, the Utilization Management Case Managers focus on facilitating the transfer of a patient to a new facility or approving the usage of high-cost services, and therefore communicate between a patient, the medical team, and the administration. In total, there are 11 employees in this classification working out of the Sharp Healthcare Administrative Office (referred to as Spectrum) or teleworking from home (four employees telecommute). Kara Bourne, Director Utilization Manager, oversees this department.

The Primary Care Case Managers and the Utilization Management Case Managers work 8-hour shifts, Monday through Friday (excluding holidays). The Inpatient Case Management Managers work 7-days a week, including holidays. As to the Diabetes Care Management Managers, they work 8-hour days, 5-days a week, or 9-hour days, 4 1/2-days a week.

2. Diabetes Specialist Educator RN

Diabetes Specialist Educator RNs focus on educating patients diagnosed with diabetes, and work almost exclusively with patients who have been recently diagnosed with diabetes or recently experienced a change in their medical condition. Diabetes Specialist Educator RNs require a certified specialist education.5 There are three employees in this classification, who all report to Kelly Young. Each of these employees is based at a different SRS clinic, but will travel to other SRS clinics as needed to meet with patients.6

The complete text of the report is available at (https://apps.nlrb.gov/link/document.aspx/09031d45823b1ec8).

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1 The Petitioner's name appears as amended at the hearing.

2 At the hearing, the Hearing Officer instructed the parties that the issue of whether the Staff Development Specialists classification (consisting of five employees) should be included or excluded from the petitioned-for unit would not be litigated. Rather, Staff Development Specialists would be allowed to vote subject to challenge. I thus make no conclusion as to this classification's inclusion or exclusion from the petitioned-for unit.

3 The current Sharp Healthcare Unit is defined as follows: All full-time and regular part-time Registered Nurses, including per diem Registered Nurses, employed in classifications for which a Registered Nurse license is required and who work at the following facilities: San Diego Hospital Association, 8695 Spectrum Center Court, San Diego, California; Grossmont Hospital, 5555 Grossmont Center Drive, La Mesa, California; Sharp Chula Vista Medical Center, 751 Medical Center Court, Chula Vista, California; Sharp Coronado Hospital and HealthCare, 250 Prospect Place, Coronado, California; Sharp Mary Birch Hospital for Women and Newborns, 3003 Health Center Drive, San Diego, California; Sharp Memorial Hospital, 7901 Frost Street, San Diego, California; Sharp Mesa Vista Hospital, 7850 Vista Hill Avenue, San Diego, California, and its El Cajon and University Heights satellite facilities; Sharp Memorial Outpatient Pavilion, 3075 Health Center Drive, San Diego, California. Also included are all Home Health Registered Nurses, Hospice Registered Nurses, and Registered Nurses employed at all skilled-nursing facilities offered through the aforementioned facilities.

4The petitioned-for unit, as amended, consists of approximately 200 SRS RNs. The Employer argues that approximately 270 SRS RNs are included in the appropriate unit, which includes the petitioned-for unit classifications and the four classifications at issue here.

5 However, the record and evidence suggest that at least one employee in the Diabetes Education Department does not have a Diabetic Specialist Education certification, but she nonetheless performs the same duties.

6 There was no evidence presented as to these employees' work schedules other than that two are full-time employees and one is a part-time employee.

7 There was no evidence presented as to this employee's work schedule other than that she is a full-time employee.

8 The Employer contends that Child's Hospital Inc., 307 NLRB 90 (1992), where the Board applied the Health Care Rule to a joint nursing home/acute-care facility, is inapplicable in this case. In agreement with the Employer, I note that a critical fact relied upon in Child's Hosp. Inc., is not present here. In Child's Hosp. Inc., the Board found that the three facilities at issue were a single employer, a fact that was not litigated in this case. I therefore make no finding as to this issue.

9 The Employer argues that the Petitioner is barred from representing the petitioned-for unit of employees, as amended. In support, the Employer cites the parties' collective-bargaining agreement (CBA) which states the following: Excluding: All other professional employees (emphasis added), physicians, nonprofessional employees, technical employees, business office clerical employees, skilled maintenance employees, guards, and supervisors as defined in the Act. Additionally, the CBA between the parties states that All Bargaining Unit employees, hereinafter called "employees" or "Bargaining Unit," shall be covered by this Agreement. RNs working at clinics shall not be covered by this Agreement (emphasis added).

In Briggs Indiana Corp., 63 NLRB 1270 (1945) the Board recognized a restriction on a union's right to petition for an election to represent a specific group of employees, finding enforceable a union's contractual agreement not to represent those employees during a collective-bargaining agreement's term. Thereafter, in Cessna Aircraft Co., 123 NLRB 855, 856 (1959), the Board established that the Briggs Indiana rule applies "only where the contract itself contains an express promise on the part of the union to refrain from seeking representation of the employees in question or to refrain from accepting them into membership."

Here, in looking at the contractual language alone, the evidence does not support a finding that Petitioner made an express promise that it would refrain from representing registered nurses working at the SRS facilities. Rather, the language appears to be nothing more than the parties' understanding as to whom the CBA would and would not apply. This language cannot be interpreted as Petitioner's express promise that it would not represent SRS nurses in the future. UMass Mem'l Med. Ctr., 349 NLRB 369, 369-70 (2007) (citing Women and Infants' Hosp. of R.I., 333 NLRB 479 (2001)) ("[a]s a contract clause excluding a particular group of employees from its coverage does not bar a union from seeking to represent those employees via a self-determination election during the contract's term, the Petitioner never waived its right to seek a self-determination election among the petitioned-for employees). Additionally, the record indicates that during the parties' latest series of negotiations, regarding the acute-care nurses unit, there was no discussion regarding SRS RNs. I thus find no merit to the Employer's claim that Petitioner is barred from representing the employees in the petitioned-for unit, as amended.

10 At the hearing, there was some testimony regarding the RNs under the Sharp Healthcare (SHC) Health Management Department, whose primary job is to provide a variety of health education, health coaching, wellness, and preventative classes for SRS patients. It is the Petitioner's position that these employees' duties closely resemble those performed by the Diabetes Specialist Educator RN, and thus, these employees are improperly classified as "RNs" and should not be considered (Primary Care) RNs for purposes of the petition. Given that these employees' job duties are strikingly similar to those performed by the Diabetes Specialist Educator RN, who share a community of interest with the petitioned-for unit, the SHC Health Management Department RNs should also be included in the petitioned-for unit.

11 Sharp Healthcare, a California corporation, with facilities in various locations throughout San Diego County, California, is engaged in the business of providing healthcare services, including healthcare services delivered through Sharp Rees-Stealy, an operating division of Sharp Healthcare. During the past 12 months, a representative period, Sharp Healthcare, in conducting its operations, derived gross revenues in excess of $250,000, and purchased and received at its California facilities goods valued in excess of $5,000 directly from points located outside the State of California.

12 Because this is a mail ballot election, the undersigned requests that one copy of the list be furnished in the form of mailing labels, if possible, for use by the Regional Office in mailing the voting kit to employees. While the Employer is not required to comply with this request, its cooperation in doing so will assist in promptly sending mail ballots to each employee's correct address and maximize employee participation in the election.

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