01/24/2025: Employer Successfully Rebuts Single-Facility Presumption
Plus two cases involving disputes about supervisory status.
MarinHealth Medical Center (formerly Marin General Hospital), 20-RC-356371 (Regional Election Decision)
NLRB Region 20 issued a Decision and Direction of Election in the case involving MarinHealth Medical Center and the National Union of Healthcare Workers (NUHW). NUHW sought to represent 21 pharmacists in a collective bargaining unit. MarinHealth argued that the pharmacists were supervisors under Section 2(11) of the National Labor Relations Act (NLRA) due to their authority to assign work and responsibly direct pharmacy technicians. The Regional Director found that the pharmacists were not supervisors and directed an election.
Legal Analysis
Supervisory Status
The Regional Director concluded that the pharmacists did not meet the criteria for supervisory status under the NLRA. While they could request technicians to prioritize tasks, they lacked the authority to assign work or make personnel decisions. Pharmacists were not held accountable for technicians' performance, and their scheduling responsibilities were routine and did not involve independent judgment.
Assignment and Responsible Direction
The pharmacists did not assign work schedules to technicians, and their requests to prioritize tasks could be refused by technicians. Pharmacist Dylan Girardi, who handled scheduling, followed a template and pre-established policies, lacking independent judgment in his duties. The Regional Director found no evidence that pharmacists faced adverse consequences for technicians' mistakes, further undermining the claim of supervisory status.
Secondary Indicia
The Employer cited secondary indicia, such as the pharmacists' higher rank and Girardi’s additional pay for scheduling. However, the Regional Director held that secondary indicia alone are insufficient to establish supervisory status without primary indicia under Section 2(11) of the NLRA.
Conclusion
The Regional Director concluded that the pharmacists were not supervisors and directed an election to determine whether they wished to be represented by NUHW for collective bargaining.
Significant Cases Cited:
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified that to be a supervisor, an individual must use independent judgment and be accountable for the performance of others' work.
Croft Metals, 348 NLRB 717 (2006): Established that assignment authority must be independent, involve judgment, and rise above routine/clerical.
Entergy Mississippi, Inc., 367 NLRB No. 109 (2019): Found that dispatchers were supervisors because they assigned employees to places and prioritized outages using independent judgment.
The Brooklyn Hospital Center, 29-RC-335631 (Regional Election Decision)
NLRB Region 29 issued a Decision and Direction of Election in the case involving The Brooklyn Hospital Center and the New York State Nurses Association (NYSNA). NYSNA sought to include nurse educators in an existing bargaining unit of registered nurses through a self-determination (Armour-Globe) election. The Employer argued that the nurse educators were supervisors under Section 2(11) of the National Labor Relations Act (NLRA) and/or managerial employees, and that the collective bargaining agreement barred an election.
Legal Analysis
Supervisory Status
The Regional Director found that the nurse educators were not supervisors under the NLRA. While they assessed employee competencies during orientation and remediation, their assessments were reportorial and did not lead to personnel actions without further management input. They lacked authority to assign, promote, or discharge employees, and their recommendations did not result in independent personnel decisions.
Managerial Status
The Employer claimed the nurse educators were managerial due to their involvement in policy development and attendance at leadership meetings. However, the Regional Director found their discretion was limited by established policies and regulatory standards. Their role in policy and curriculum development was subject to upper management approval, and they did not exercise significant independent judgment in formulating or implementing high-level policies.
Secondary Indicia
The Employer cited secondary indicia of supervisory status, such as attendance at leadership meetings and equivalent pay to nurse supervisors. However, the Regional Director held that secondary indicia alone are insufficient to establish supervisory status without primary indicia under Section 2(11) of the NLRA.
Health Care Rule
The Board’s Health Care Rule allows for a unit of all registered nurses in acute care hospitals. The Regional Director found that the nurse educators, as registered nurses, shared a community of interest with the existing bargaining unit, making their inclusion appropriate.
Self-Determination Election
The Regional Director concluded that a self-determination election was appropriate. The nurse educators constituted a distinct group that shared a community of interest with the existing unit, and the election would allow them to vote on inclusion.
Contract Bar Doctrine
The Employer argued that the collective bargaining agreement barred an election because it excluded nurse educators. The Regional Director found that a mere exclusion did not constitute a clear and unmistakable waiver of the union’s right to seek representation. The neutrality clause in the agreement did not prevent the union from organizing the nurse educators or filing a petition with the NLRB.
Conclusion
The Regional Director concluded that the nurse educators were not supervisors or managerial employees and that the collective bargaining agreement did not bar an election. A self-determination election was directed to allow the nurse educators to vote on inclusion in the existing bargaining unit.
Significant Cases Cited:
Globe Machine & Stamping, 3 NLRB 294 (1937): Established self-determination elections.
Armour & Co., 40 NLRB 1333 (1942): Reinforced self-determination elections.
NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Clarified the definition of a supervisor under the NLRA.
Oakwood Healthcare, 348 NLRB 686 (2006): Further clarified the definition of a supervisor.
UMass Memorial Medical Center, 349 NLRB 369 (2007): Held that a mere exclusion from a bargaining unit does not waive the union’s right to seek representation.
Underwood Fruit and Warehouse Company, LLC d/b/a Mount Adams Fruit, 19-RC-356795 (Regional Election Decision)
NLRB Region 19 issued a Decision and Direction of Election in the case involving Underwood Fruit and Warehouse Company, LLC d/b/a Mount Adams Fruit and the United Food and Commercial Workers Local 3000 (UFCW). The UFCW sought to represent a single-facility bargaining unit of employees at the Employer’s Bingen, Washington facility. The Employer objected, arguing that the only appropriate unit was company-wide, including its facilities in Bingen, Dallesport (Washington), and Odell (Oregon). The Employer also argued that the UFCW should be collaterally estopped from pursuing a single-facility unit based on a prior 2023 decision involving the same parties.
Legal Analysis
Collateral Estoppel
The Regional Director found that collateral estoppel did not apply in this case. In the 2023 case, the UFCW sought a multi-facility unit (Bingen and Dallesport), and the single-facility presumption did not apply. In this case, the UFCW sought a single-facility unit (Bingen), triggering the single-facility presumption. Since the legal issues were not identical, the Regional Director concluded that the UFCW was not precluded from seeking a single-facility unit.
Single-Facility Presumption
The Board has long held that a single-facility unit is presumptively appropriate unless the opposing party can show that the facility has been so effectively merged or functionally integrated that it has lost its separate identity. To determine whether the presumption has been rebutted, the Board examines: (1) central control over daily operations and labor relations; (2) similarity of employee skills, functions, and working conditions; (3) degree of employee interchange; (4) distance between locations; and (5) bargaining history.
Central Control: The Regional Director found that the Employer’s labor relations and daily operations were highly centralized. Human resources, hiring, and supervision were managed by individuals based in Bingen, with limited local autonomy at the other facilities. This factor weighed in favor of rebutting the single-facility presumption.
Similarity of Skills, Functions, and Working Conditions: Employees at all three facilities performed nearly identical tasks, used the same equipment, and had similar job classifications. The Regional Director found that this factor supported a multi-facility unit.
Employee Interchange: There was significant interchange between the facilities, particularly during cherry season when nearly all employees were temporarily transferred to Dallesport. Additionally, employees frequently moved between Bingen and Odell, especially during slow periods. This factor strongly supported a multi-facility unit.
Distance Between Locations: The facilities were relatively close, with Bingen 10 miles from Odell and 18 miles from Dallesport. While distance is typically a factor favoring a single-facility unit, the Regional Director found that the proximity and frequent interchange between facilities minimized its significance.
Bargaining History: There was no relevant bargaining history, so this factor was neutral.
Conclusion
The Regional Director concluded that the Employer had met its burden to rebut the single-facility presumption. The centralized control, similarity of employee roles, and significant employee interchange supported a multi-facility unit. The Regional Director directed an election in a unit that included employees at all three facilities.
Significant Cases Cited:
Carry Companies of Illinois, 310 NLRB 860 (1993): Established that Board decisions in representation cases have preclusive effect in subsequent cases.
Wolf Creek Nuclear Operating Corp., 365 NLRB No. 55 (2017): Clarified the elements of issue preclusion in NLRB cases.
Trane, 339 NLRB 866 (2003): Outlined the factors for determining whether a single-facility unit is appropriate.
Hilander Foods, 348 NLRB 1200 (2006): Emphasized the importance of local autonomy in determining unit appropriateness.
Waste Management of Washington, Inc., 331 NLRB 309 (2000): Found that significant employee interchange and centralized control can rebut the single-facility presumption.