DECISIONS

Island Hospital, Decision 12570 (PECB, 2016)

 

                                                       STATE OF WASHINGTON

 

                  BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

In the matter of the petition of:   Washington state nurses association   Involving certain employees of:   ISLAND HOSPITAL (Skagit County public HOSPITAL district no. 2)

CASE 27224-E-15   DECISION 12570 - PECB     ORDER REMANDING CASE

 

 

Linda Machia, Labor Representative, for the Washington State Nurses Association.

 

Matthew W. Lynch, Attorney at Law, Sebris Busto James, for Island Hospital (Skagit County Public Hospital District No. 2).

 

 

On May 18, 2015, the Washington State Nurses Association (union) filed a representation petition concerning five unrepresented Registered Nurses working at the Lopez Island Medical Clinic (Lopez Clinic).  The Lopez Clinic is affiliated with Island Hospital (employer or hospital).  The petitioned-for employees seek the opportunity to vote on their inclusion in an existing bargaining unit of nurses at the hospital. 

 

The employer objects to including the Lopez Clinic nurses in the same bargaining unit as the hospital nurses.  The employer argues that the resulting bargaining unit would be inappropriate because the Lopez Clinic nurses have a distinct and separate community of interest from the hospital nurses.  The union asserts that the Lopez Clinic nurses share a community of interest with the hospital nurses and therefore inclusion of the petitioned-for employees would result in an appropriate bargaining unit.  

 

Because the parties disagreed about the appropriateness of the union’s petition, the matter was forwarded to hearing.  Hearing Officer Erin Slone‑Gomez conducted a hearing on August 14, October 15, and November 20, 2015, and the parties filed post-hearing briefs.

The Lopez Clinic nurses perform similar work to the hospital nurses and share a community of interest with the hospital nurses.  However, the Lopez Clinic nurses also perform similar work to the nurses at the employer’s other family care and specialty clinics.  Including the nurses at just one of the employer’s seven family care and specialty clinics while excluding the nurses at the others would result in undue fragmentation of the employer’s workforce and leave the unrepresented nurses as a fringe group.  The union will be granted the opportunity to amend its petition to seek an appropriate bargaining unit configuration consistent with this decision.

 

BACKGROUND

 

The employer provides health services to the residents of Skagit and San Juan Counties through its hospital in Anacortes, Washington, and seven clinics throughout Skagit and San Juan Counties.  The clinics include four family care clinics and three specialty clinics.  Approximately 107 of the employer’s 536 full-time equivalent employees work at the clinics, including 12 nurses.  One hundred and sixty-three nurses work at the hospital. 

 

The Hospital and Home Health Department

The hospital is a 43-bed acute care facility that consists of several departments, including Obstetrics, Emergency, Acute Care/ICU, Laboratory Services, and Home Health/Employee Health.  The Emergency Department is certified as a Level III trauma center.  It is continually staffed and always has a physician on duty.  The hospital dissuades the public from using that department as a primary care facility. 

 

The nurses in the Home Health/Employee Health Department (Home Health) provide care to individuals in their homes throughout the counties and perform wound care, disease management, medication management, safety in the home, and end-of-life care.  The Home Health nurses were historically located in the hospital but recently moved to their own building adjacent to the hospital.  The Home Health Department is staffed Monday through Friday from approximately 8:00 a.m. until 4:30 p.m.

 

The hospital is run by a Chief Executive Officer (CEO) and overseen by six elected commissioners.  The nurses in the hospital, including those working in Home Health, report through an organizational structure headed by the hospital’s Chief Patient Care Executive, a registered nurse, who reports directly to the CEO.

 

The union currently represents a bargaining unit of all full-time, part-time, and per-diem nurses at the hospital, excluding head nurses and other supervisors.  Although the Home Health nurses are now located in a separate facility, the parties still consider those nurses to be included in the bargaining unit.  The bargaining unit does not currently include any nurses working for the family care or specialty clinics.

 

The Family Care and Specialty Clinics

The employer operates four family care clinics that provide primary care to individuals residing near the clinics: Fidalgo Medical Associates, Lopez Island Medical Clinic, Orcas Medical Center, and Anacortes Family Medicine.  These clinics are designated as “rural health clinics” by the Washington State Department of Health and must comply with rural health clinic-specific regulations.[1]  The employer also operates three specialty clinics: Island Surgeons, Sleep Wellness Center, and Psychiatry & Behavioral Health.  Both the family care and specialty clinics report through an organizational structure headed by the hospital’s Chief Financial Officer, not a registered nurse, who reports directly to the CEO. 

 

The Lopez Clinic is located on Lopez Island.  The clinic building and medical equipment are owned by the Catherine Washburn Memorial Association, a non-profit organization focused on ensuring medical care is available on Lopez Island.  The Lopez Clinic provides primary care to patients through scheduled daily appointments or walk-ins during the daytime.  There are two “health care providers”—a doctor and an advanced registered nurse practitioner.  The clinic staffs five nurses, one certified medical assistant, and one licensed practical nurse that work under the direction of the health care providers.  The Lopez Clinic staff report to a clinic manager, who in turn reports to the Director of Family Care and Specialty Clinics.  The director visits the Lopez Clinic as well as the other clinics on a recurring basis.  Neither the clinic manager nor the director are nurses. 

The hospital nurses and the Lopez Clinic nurses, as well as the other family care and specialty clinic nurses, perform similar duties and possess similar skills.  All nurses in the employer’s workforce attend the same new employee orientation and receive additional training within their respective departments based on their previous experience.  The nurses at both the clinics and the hospital receive the same benefits packages, including medical insurance, dental insurance, vision insurance, and retirement.  Although the hospital nurses receive different pay rates than the clinic nurses, the differences are a product of the employer and union’s negotiated collective bargaining agreement.

 

The licensure requirements for the nurses are similar.  All nurses—whether they work at one of the clinics, the hospital, or in patients’ homes—must be appropriately licensed under Chapter 18.79 RCW.  Requirements for additional experience and certifications, such as advanced cardiac life support and basic life support, vary across the organization.  All nurses must adhere to the standards of care and practice required by law including the “five-step nursing process,” which comprises assessment, diagnosis, planning, implementation, and evaluation.  WAC 246-840-700. 

 

DISCUSSION

 

Applicable Legal Standards

The creation and maintenance of appropriate bargaining units is a function of this agency.  RCW 41.56.060.  The purpose of this function is to ensure there is a community of interest among the employees sufficient to enable them to bargain effectively with their employer.  Quincy School District, Decision 3962‑A (PECB, 1993).

 

RCW 41.56.060(1) provides that this agency, in examining whether there is a community of interest, consider “the duties, skills, and working conditions of the public employees; the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the public employees; and the desire of the public employees.”  While each factor is considered in each case, no one factor dominates the others.  King County, Decision 5910‑A (PECB, 1997).  When making bargaining unit determinations, the Commission seeks to avoid fragmentation and potential work jurisdiction disputes.  King County, Decision 6696 (PECB, 1999).  Bargaining unit determinations are made on a case-by-case basis.  King County, Decision 5910-A.

 

Again, this agency’s role is to determine whether there is a community of interest, not the best community of interest.  Consequently, the fact that other groupings of employees may also be appropriate, or even more appropriate, does not render the proposed configuration inappropriate.  Snohomish County, Decision 12071 (PECB, 2014); City of Winslow, Decision 3520-A (PECB, 1990).

 

Self-Determination Elections

The union filed this representation petition seeking to allow the petitioned-for employees to vote on their inclusion in the existing nurses bargaining unit.  The self‑determination election process is one method for modifying existing bargaining units.  WAC 391-25-440.  The process is designed to allow unrepresented employees the opportunity to express their desires and choose whether to be included in an existing appropriate bargaining unit that the petitioning union already represents.  Pierce County, Decision 10992 (PECB, 2011).

 

As a threshold matter, a self-determination election is inappropriate if the number of petitioned‑for employees equals or exceeds the number of employees in the existing bargaining unit because the majority status of the underlying unit is called into question.  Id.  The resulting bargaining unit must also continue to be appropriate following the addition of the petitioned-for employees.  Id.  The unit determination criteria identified in RCW 41.56.060(1) is applied to the resulting bargaining unit.

 

Application of Standards

Including only the nurses at the Lopez Clinic in the union’s existing bargaining unit while excluding the nurses at the other clinics would unduly fragment the employer’s workforce and result in an inappropriate bargaining unit.  While the Lopez Clinic nurses perform many of the same duties as the hospital nurses, the nurses at the family care and specialty clinics also perform the same work, share similar skills, and enjoy some of the same working conditions.

 

When making bargaining unit determinations, this agency has a long-standing policy of avoiding unnecessary fragmentation of the workplace into multiple bargaining units.  Ben Franklin Transit, Decision 2357-A (PECB, 1986); Municipality of Metropolitan Seattle, Decision 2358-A (PECB, 1986).  This agency has previously rejected proposed unit configurations that organize one of several similar groups of employees within a workforce of a single employer on fragmentation grounds.  See Skagit County Public Hospital District 2, Decision 7240 (PECB, 2000) (rejecting a bargaining unit configuration that included some but not all of the employer’s family care and specialty clinics).  Additionally, fringe groups of employees have historically been incorporated into bargaining units to which they logically relate.  City of Centralia, Decision 3495-A (PECB, 1990).

 

The existing nurses bargaining unit includes 163 of the 175 nurses employed by the employer.  It is virtually a horizontal bargaining unit of all of the nurses in the employer’s workforce.  The union proposes to allow the five nurses at the Lopez Clinic the opportunity to vote on their inclusion in the existing nurses bargaining unit.  The union’s proposed bargaining unit configuration would leave unrepresented seven clinic nurses who have a community of interest with the Lopez Clinic nurses and the existing bargaining unit.

 

Allowing the nurses at one clinic to organize while leaving the remaining nurses unrepresented would leave those remaining nurses as a fringe group of employees even though the duties, skills, and working conditions of all the nurses are similar.  The union’s proposed bargaining unit configuration would also bifurcate the clinic nurses into multiple groups.[2]  This is particularly true in this instance where the union’s proposed bargaining unit configuration would include 168 of the employer’s nurses while leaving just seven nurses unrepresented.    

 

Fragmentation is an issue because the duties, skills, and working conditions of the all of the nurses demonstrate a community of interest between the employees.  All of the nurses act under the direction of a health care provider, as required by rural health care regulations.  Although the Lopez Clinic nurses and other clinic nurses have separate lines of direct supervision, all of the clinic nurses still perform the same nursing duties as the hospital nurses.  On occasion, emergencies have occurred at the clinics where clinic nurses were required to perform emergency care while transportation to a hospital was arranged.  This is evidenced by testimony of two nurses that previously worked in the hospital and Home Health.  One employee testified that she stopped working per diem shifts at the hospital only after being hired as a nurse at the Lopez Clinic because the employer has a policy forbidding clinic nurses from working at the hospital.

 

The employer asserts that all of the clinic nurses, including those at the Lopez Clinic, do not share a community of interest with the hospital nurses because the clinic nurses provide a substantially different scope of medical services than the hospital nurses.  To support this argument, the employer points out that the Lopez Clinic nurses provide primary care that differs in nature from the fluctuating and often emergent nursing demands at the hospital.  Primary care is typically provided through scheduled appointments, and the Lopez Clinic nurses typically work during set daytime schedules with limited work on weekends.  The hospital nurses, on the other hand, work a variety of different schedules. 

 

The employer also argues that the level of nursing care required at the family care clinics is of a lesser nature than that of the home health care nurses who work independently and hospital nurses who provide care for emergency and acute care purposes.  The employer highlights the fact that there is no requirement that nurses staff the family care clinics, and the Lopez Clinic nurses work closely and often interchangeably with the clinic’s certified medical assistant and licensed practical nurse.

 

The operational differences between the Lopez Clinic and hospital do not disturb the community of interest between the clinics and the hospital.  The employer points to the different systems used by the nurses at the two locations as well as their funding sources as evidence that the employees lack a community of interest.  The employees at the clinics use some but not all of the employer’s electronic medical record software systems.  The clinic employees use a telephone that is not directly connected to the hospital’s telephone network, use different computer servers, and operate out of a building that is not owned by the employer.  The employer also established facts demonstrating differences in how the Lopez Clinic, the hospital, and the Home Health Department are funded and how services are billed to clients.  While this logistical information may be important to the employer in its administration of a complex public hospital district, these differences are slight compared to the similarities of the employees, who all perform medical services in the employer’s operation.

 

CONCLUSION

 

The union’s proposed bargaining unit configuration is inappropriate.  Although the Lopez Clinic nurses perform many of the same duties as the hospital nurses, other nurses at the family care and specialty clinics also share the same duties.  Including the Lopez Clinic nurses in the existing nurses bargaining unit while excluding the other family care and specialty clinic nurses would result in undue fragmentation of the employer’s workforce.  The union’s proposed bargaining unit configuration would leave also leave the family care and specialty clinic unrepresented nurses as a fringe group in the employer’s workforce.  The union will be given an opportunity to amend its petition consistent with this decision.[3]

 

FINDINGS OF FACT

 

1.                  Island Hospital is a public employer within the meaning of RCW 41.56.030(12).

 

2.                  The Washington State Nurses Association (union) is a bargaining representative within the meaning of RCW 41.56.030(2).

 

3.                  The employer provides health services to the residents of Skagit and San Juan Counties through its hospital in Anacortes, Washington.  The hospital also provides services to residents through the Home Health/Employee Health Department.  The hospital and Home Health department employ 163 registered nurses. 

 

4.                  The union represents a bargaining unit of registered nurses at the hospital and in the Home Health Department described in Finding of Fact 3. 

 

5.                  The employer also operates seven family care and specialty clinics throughout Skagit and San Juan Counties.  The clinics include four “rural health clinics” (Fidalgo Medical Associates, Lopez Island Medical Clinic, Orcas Medical Center, and Anacortes Family Medicine) and three specialty clinics (Island Surgeons, Sleep Wellness Center, and Psychiatry & Behavioral Health). 

 

6.                  The family care and specialty clinics described in Finding of Fact 5 employ a total of 12 registered nurses, five of which work at the Lopez Clinic. 

 

7.                  The family care and specialty clinics report through an organizational structure headed by the hospital’s Chief Financial Officer, not a registered nurse, who reports directly to the Chief Executive Officer. 

 

8.                  All nurses in the employer’s workforce attend the same new employee orientation and receive additional training within their respective departments based on their previous experience.  The nurses at both the clinics and the hospital receive the same benefits packages, including medical insurance, dental insurance, vision insurance, and retirement.

 

9.                  The licensure requirements for the nurses are similar.  All nurses—whether they work at one of the clinics, the hospital, or in patients’ homes—must be appropriately licensed under Chapter 18.79 RCW.  Requirements for additional experience and certifications, such as advanced cardiac life support and basic life support, vary across the organization.  All nurses must adhere to the standards of care and practice required by law including the “five‑step nursing process,” which comprises assessment, diagnosis, planning, implementation, and evaluation.  WAC 246-840-700. 

CONCLUSIONS OF LAW

 

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.

 

2.                  Based upon Findings of Fact 5 through 9, all of the registered nurses employed at the employer’s family care and specialty health clinics share a community of interest.  Including the nurses at just one clinic while excluding the other family care and specialty clinic nurses would unduly fragment the employer’s workforce. 

 

ORDER

 

The representation petition filed by the Washington State Nurses Association is REMANDED to the Representation Case Administrator for further processing consistent with this decision.

 

ISSUED at Olympia, Washington, this  28th  day of April, 2016.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

MICHAEL P. SELLARS, Executive Director

 

 

This order may be appealed by filing

timely objections with the Commission

under WAC 391-25-660.