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MILLER EX REL. NLRB v. CALIFORNIA PAC. MED. CTR.

March 27, 1992

ROBERT H. MILLER, Regional Director of Region 20 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, CALIFORNIA PACIFIC MEDICAL CENTER, Respondent.


The opinion of the court was delivered by: BARBARA A. CAULFIELD

MEMORANDUM AND ORDER

 This matter came before the court upon the verified petition of Robert H. Miller, Regional Director of Region 20 of the National Labor Relations Board, herein called the Board, supported by affidavits, declarations, and exhibits, for a preliminary injunction pursuant to Section 10(j) of the National Labor Relations Act, as amended (29 U.S.C., § 160(j)), herein called the Act, pending final disposition of the matter now pending before the Board, and upon issuance of an order to show cause why injunctive relief should not be granted as prayed in said petition. The court, having fully considered the pleading, affidavits, exhibits, briefs, and arguments of counsel, and the entire record in the case, holds that the requested injunction shall be issued.

 BACKGROUND

 The facts of this case are not significantly in dispute. On June 16, 1991, Children's Hospital of San Francisco ("Children's) and Pacific Presbyterian Medical Center ("PPMC") were merged into a new entity, California Pacific Medical Center ("CPMC"). The merger agreement provided that PPMC would be merged into Children's and that the latter entity would be the surviving corporation. It further provided that, upon the merger, the articles of incorporation of Children's would be amended to change the name of the corporation to CPMC. Moreover, the agreement stated that, upon merger, the separate existence of PPMC would cease and that CPMC would succeed, "without other transfer, to all rights and property" of PPMC and be subject to all debts and liabilities of PPMC.

 The new entity operates at the same locations in San Francisco as had PPMC and Children's. The hospital formerly known as Children's is referred to as the California Campus. The former cite of PPMC is designated the Pacific Campus. Of the 1370 nurses employed at the combined facility, approximately 80 work at both facilities.

 The nurses at the California Campus have retained essentially the same supervisors they had prior to the merger. After the merger, Penny Holland became the Vice-President of Nursing Services for Respondent. She is responsible for all nursing functions, including the planning and direction of patient care and overseeing all nursing services and surgical services. Prior to the merger, she held the same position at Children's.

 The nurses working in the Emergency Room, the Labor and Delivery Unit, and other units at the California Campus were subject to the same immediate supervision as when they worked for Children's before the merger. These immediate supervisors possess authority with respect to hiring, discipline, scheduling of work, evaluation of employees, granting time off, and directing work.

 A. Union Representation Prior to the Merger

 Prior to the merger, the 802 registered nurses at PPMC were not represented by a union. The 568 registered nurses employed at Children's were represented for purposes of collective bargaining, by California Nurses Association ("CNA"). CNA had represented the nurses at Children's since 1947. The most recent collective bargaining agreement between children's and CNA was effective on its face from August 1, 1988 to May 31, 1991. Although there were negotiations for a new collective bargaining agreement between Children's and CNA prior to the merger, no agreement was reached on a new contract.

 The registered nurses employed at Children's received different wages and benefits prior to the merger than the nurses at PPMC. Some of the nurses at Children's were compensated differently for hours worked in excess of eight than their counterparts at PPMC. The nurses at Children's were under a hospital-wide seniority system while the nurses at PPMC were under a departmental seniority system. The two hospitals had different requirements applicable to registered nurses with respect to Advanced Cardiac Life Support (ACLS) certification, an extensive cardiac care training.

 B. Respondent's Withdrawal of Recognition of CNA

 On July 11, 1990, Children's sent a letter to CNA informing them of the proposed merger. In response, CNA sought information concerning the nature of the merger. Specifically, CNA was concerned that the proposed merger "raised questions with respect to the bargaining relationship between CNA and Children's Hospital." For example, CNA sought information regarding the legal identity of the organizations involved (whether they are corporations, partnerships, non-profit associations, etc.). Additionally, CNA sought to find out the kind of transaction contemplated (i.e., a purchase or exchange of stock, a sale of assets, or other arrangements regarding ownership or control.) Children's refused to provide the requested information.

 As would be imagined, during the months prior to the merger all interested parties made attempts to get their affairs in order. Toward that end, on January 18, 1991, Victoria J. Williams, R.N., Vice President, Nursing Services of PPMC, sent a letter to all nurses at PPMC which addressed the issue of union representation. The letter purported to provide the reader with the position of PPMC as an institution on the unionization of the professional nurses. The letter provides in pertinent part:

 The primary purpose of PPMC and its nursing staff is to provide quality health care to our community on an uninterrupted basis. Any organization which imposes even the threat of a walkout, slowdown, or strike is inconsistent with that mission. Additionally, the restrictions that may come about under an inflexible contract can interfere with your ability to practice your profession. Rigid controls over scheduling, assignments, accountability, input mechanisms, etc. can adversely affect a quality environment. We firmly believe that as long as we meet our commitment to our professional nursing ...


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