Compton Hill Medical Center

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1547 (N.L.R.B. 1980)

COMPTON HILL MEDICAL CENTER 1547 Missouri Pacific Employees' Hospital Association and St. Louis-Little Rock Hospitals, Inc. d/b/a Compton Hill Medical Center' and Allied Serv- ices Division, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Ex- press and Station Employees (AFL-CIO-CLC), Petitioner. Case 14-UC-79 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELI.O, AND TRUES DAI I. On December 20, 1979, the Regional Director for Region 14 issued his Decision and Order dis- missing a petition whereby the Petitioner sought to clarify the bargaining unit by including the job classifications of physical therapist, medical tech- nologist, medical laboratory technologist, and sec- retary. Thereafter, the Petitioner filed a request for review of the Regional Director's decision to dis- miss the instant petition, contending that the Re- gional Director made erroneous findings of fact and conclusions of law with respect to the disputed classifications.2 On February 28, 1980, the Board I Although the parties stipulated that both Missouri Pacific Emploees' Hospital Association, hereinafter the Association, and St. Louis-Little Rock Hospitals, Inc d/b/a Compton Hill Medical Center, hereinafter Compton, are each engaged in commerce within the meaning of the Act. the parties were unwilling to stipulate that Compton and the Association are "joint employers" we hold, however, that a finding with respect to whether Compton and the Association are joint or single employers oni the one hand, or separate employers on the other, is unnecessary under the circumstances herein. Thus, the certifiation discussed infrau, which issued on September 28, 1978, whereby the Petitioner herein was certified as the representative of certain employees. also named both Compton and the Association as the Employer In addition, the current collective-bar- gaining agreement states at Rule 1, par. (b), that: It is understood in the negotiation of this Agreement that at this hos- pital the non-professional and/or non-licensed personnel as set forth in paragraph (a) is involved in two corporations, that is, Missouri Pa- cific Employes' [sic] Hospital Association and St Louis-Little Rock Hospitals. Inc., doing business as (d/b/a) Compton Hill Medical Center, and that in various instances the duties performed interlock, and that in the acceptance of the Agreement by both parties, it is understood that for the purpose of the Agreement and its application the employees in the two corporations are considered as equal and one Rule 2, par. (b), states that: Where the term "Management"-"Hospital" or "Employer" appear in this Agreement, it shall be understood to mean the Management of the Missouri Pacific Employes' (sic) Hospital Association and St Louis-Little Rock Hospitals, Inc. d/b/a Compton Hill Medical Center. It is therefore clear that, regardless of the relationship between Compton and the Association insofar as it concerns our assertion of jurisdiction over these entities, the unit sought to be clarified includes employees em- ployed by Compton and the Association, respectively 2 The Petitioner's request for review conceded that the classification of physical therapist was in existence prior to the current contract as well as the current certification, and withdrew, in effect. its request that the Board review the Regional Director's decision as to that classification In addition, although the petition herein and the Petitioner's request for review apparently distinguished between medical technologists and medi- cal laboratory technologists, the record reveals. and the Petitioner's brief 251 NLRB No. 206 by telegraphic order, granted the Petitioner's re- quest for review, remanded the case to the Region- al Director for a hearing on the issues, and ordered the case transferred to the Board for decision. The hearing opened on April 16, 1980, and closed on April 22, 1980. Following the close of the hearing, the Regional Director transferred this proceeding to the Board for decision. Thereafter, the parties filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Association and Compton are engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert ju- risdiction herein. 2. The Petitioner is a labor organization within the meaning of Section 2(5) of the Act. 3. Prior to 1974, the Petitioner was recognized by Compton and the Association as the exclusive bargaining representative of their service, mainte- nance, and office clerical employees, excluding professional and confidential employees, guards, and supervisors as defined in the Act. On September 28, 1978, the Petitioner was certi- fied as the collective-bargaining representative of the following employees of Compton and the Asso- ciation as an addition to the recognized unit it al- ready represented: All licensed practical nurses, laboratory tech- nicians, x-ray technicians, respiratory therapy trainees and respiratory therapy aides, E.K.G. technicians, physical therapy assistants, physi- cal therapy aides, certified operating room technicians, and central supply technicians em- ployed by the Employer at its St. Louis, Mis- souri, facility; excluding professional employ- ees, office clerical employees, confidential em- ployees, guards and supervisors as defined in the Act, and all other employees.3 Subsequent to the September 1978 certification, the parties signed, on March 15, 1979, a memoran- dum of agreement with an effective date of May 1, makes clear, that it seeks to include in the certified unit those individuals classified as medical technologists 3 The current collective-bargaining agreement, effective May 1, 1978. through April 30, 1981, included a classification of "clerks." The record is not clear, however, as to whether or how this "clerk" classification dif- fers from the excluded classification of "olffice clerical employees." a r d - 1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1978, which included in the collective-bargaining agreement all those classifications added by virtue of the certification. The Petitioner contends that the position of medical laboratory technologist, certain office clerical positions, 4 as well as the positions of finan- cial administrator, patient care coordinator, and Care unit ward manager should be included in the existing unit by virtue of their community of inter- est with the represented employees. Compton and the Association contend that cer- tain of the classifications which the Petitioner seeks to include were in existence prior to the 1978 con- tract and certification, that the employees in ques- tion have no community of interest with the certi- fied unit, that several of the office clerical employ- ees are confidential employees, and that the medi- cal laboratory technologists are professional em- ployees. Thus, Compton and the Association oppose inclusion of any of these classifications in the existing unit. Subsequent to investigation, but prior to the hearing in this case, the Regional Director dis- missed the petition for clarification, finding that the medical laboratory technologists were employed at the time the Petitioner herein filed a petition for certification in 1978; that such employees did not participate in the 1978 representation election and were not included in the unit; and that they were not included in any collective-bargaining agree- ment. The Regional Director also found that the secretarial classifications which Petitioner seeks to include in the certified unit existed at the time that a petition for certification was filed in 1978, that the employees in these classifications did not par- ticipate in the 1978 election; and that these classifi- cations are not included in any collective-bargain- ing agreement. The Regional Director made no specific findings as to the classifications of financial administrator, patient care coordinator, and Care unit ward manager. For the reasons set out below, we shall dismiss the petition for clarification as it relates to the clas- sifications of medical laboratory technologist, sec- retary to the Administrator, secretary to the Medi- cal Office, secretary to the Associate Director of Nursing, and patient care coordinator, although not necessarily for the reasons relied upon by the Re- gional Director. Contrary to the Regional Direc- 4 The office clerical positions which Petitioner would have us include are: Secretary to the Administrative Assistant for Environmental Re- sources, secretary to the Administrative Assistant for Patient Care, Secre- tary to the Associate Director of Nursing, secretary to the Administrator, Medical Office Secretary to the Associate Administrator and Controller, and Secretary to the President of the Association. In its brief to the Board. the Petitioner concedes that the secretary to the Administrative Assistant for Human Resources should not be included as that position is confidential in nature. tor, we shall clarify the unit to exclude the secre- tary to the Administrative Assistant for Human Re- sources, the secretary to the Administrative Assist- ant for Patient Care, the secretary to the Adminis- trative Assistant for Environmental Services, and the secretary to the Associate Administrator and Controller; we shall include the classifications of secretary to the President of the Association, Fi- nancial Administrator of the Association, and Care unit ward manager. Medical Laboratory Technologists Contrary to the Regional Director, and because the record evidence is blurred on this issue, we de- cline to find that the classification of medical labo- ratory technologist was in existence when the Peti- tioner herein filed its petition for certification in 1978. The record is clear, however, that the posi- tion of medical laboratory technologist falls within the statutory definition of "professional employ- ee." 5 Thus, medical laboratory technologists, as opposed to medical laboratory technicians, have completed a 4-year college program leading to a Bachelor of Science degree, and are also registered with the American Society of Clinical Pathologists (ASCP). Although technologists may perform manual operations similar to those performed by technicians in preparing specimens for testing, only the medical laboratory technologists are permitted to exercise their independent judgment and discre- tion in the interpretation and analysis of the medi- cal tests performed. Thus, the medical laboratory technologists herein resemble those described in .Nathan and Miriam Barnert Memorial Hospital As- sociation d/b/a Barnett Memorial Hospital Center, 217 NLRB 775, 781-782 (1975), who were found to be professional employees and excluded from the unit found appropriate. In accordance with that Decision, we find the medical laboratory technolo- gists to be professional employees who cannot be ' Sec. 2(12) of the Act states: The term "professional employee" means (a) any employee engaged in work (i) predominately intellectual and varied in character as opposed to routine mental, manual, me- chanical. or physical work:; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be stand- ardized in relation to a given period of time, (iv) requiring knowl- edge of an advanced type in a field of science or learning customar- ily acquired by a prolonged course of specialized intellectual instruc- tion and study in an insititution of higher learning or a hospital, as distinguished from a general academic education or from an appren- ticeship or from training in the performance of routine mental. manual, or physical processes; or (b) any employee, who i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of para- graph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph a). COMPTON HILL MEDICAL CENTER 1549 added to the unit without a separate election as re- quired by Section 9(c)(1) of the Act. Accordingly, we shall dismiss the unit clarification petition as to this classification. Secretary to Administrative Assistant for Human Resources This position, which the Petitioner concedes should not be included in the certified unit by virtue of its confidential nature, involves working closely with Linda Oakley, the Administrative As- sistant for Human Resources. Oakley's position corresponds to that of a personnel director. Thus, Oakley deals with the Union (the Petitioner herein) with respect to the grievance machinery as well as in a negotiating context. In this regard, Oakley sits on the Administrative Council, a body composed of the Administrator (Berhow), Administrative As- sistant for Patient Care (White), Administrative As- sistant for Enviromental Services (Nettlehorst), As- sociate Administrator (Goldstein), and the Admin- istrative Assistant for Community Relations and Materials Management (Burst). The council is re- sponsible, inter alia, for determining management positions and strategy for negotiations with the Pe- titioner herein, as well as other unions with whom Compton and the Association have collective-bar- gaining relationships. 6 Thus, on the basis of the record evidence and the Petitioner's concession, we find that the secretary to the Administrative Assist- ant for Human Resources is a confidential employ- ee and should therefore be excluded from the unit. Preexisting Classifications As noted supra, on September 28, 1978, the Peti- tioner was certified as the representative of certain technical employees of Compton and the Associ- ation, and the parties thereafter included these em- ployees within the scope of their May 1, 1978, col- lective-bargaining agreement. The record reflects that the following classifications were in existence prior to May 1, 1978, but are not covered in the current collective-bargaining agreement: secretary to the Administrator, in existence since at least 1974; Patient Care Coordinator, in existence since 1976; and secretary to the Medical Office, in exist- ence since 1945. 7 The position of secretary to the Administrative Assistant for Patient Care8 is pres- ' The record reflects that the Operating Engineers represents a unit of employees; and that the Missouri Nurses Association represents a unit of registered nurses I The position of secretary to the Medical Office has been held by Dorothy Daley since 1945. The evidence shows that Jean Fowler has also been placed in that classification so as to succeed Daley when she retires. a The Administrative Assistant for Patient Care is Amy White, who occupied the position of Nursing Director until her new position was cre- ated October 19, 1979, as the result of an increased workload. The Asso- ently held by Karen Grassi, and the position of sec- retary to the Associate Director of Nursing is held by Willa Brinkley. Prior to the creation of the posi- tion of Administrative Assistant for Patient Care, Brinkley served as White's secretary while White was Director of Nursing. Brinkley has held this po- sition since June 21, 1973. The record reflects, and we find, that, although Brinkley now works for Kincannon rather than White, Brinkley nonetheless remains the secretary to an individual whose pri- mary area of concern is the administration of the nursing service at Compton. We therefore hold that the classification of secretary to the Associate Director of Nursing is a position that predated the current collective-bargaining agreement but is not included therein. Accordingly, and in agreement with the Regional Director, we find that the peti- tion for clarification as it relates to the classifica- tions of secretary to the Administrator, Patient Care Coordinator, secretary to the Medical Office, and secretary to the Associate Director of Nursing raises a question concerning representation and must therefore be dismissed. See, generally, Plough, Inc., 203 NLRB 818 (1973), and AMF Electro Sys- tems Division, AMF, Incorporated, 193 NLRB 1113 (1971). Classifications Excluded From the Unit as Confidential Employees As discussed above, the Administrative Assistant for Patient Care (White), the Administrative Assist- ant for Environmental Services (Nettlehorst), and the Associate Administrator (Goldstein) are mem- bers of the Administrative Council-a group which, as part of its duties, formulates labor rela- tions policies and determines management propos- als and strategy during contract negotiations. The classifications we now consider are secretaries to these administrative heads. As part of their duties, these secretaries (Grassi, Soest, and Horan) are re- quired to type and file minutes of Administrative Council meetings, as well as type contract propos- als formulated by the respective Administrative As- sistants, and which would then be discussed at the Administrative Council.9 Thus, like the individual found to be a confidential employee in South Caro- lina Education Association, 240 NLRB 542, 543 ciate Director of Nursing is Virginia Kincannon. The unit placement of the position of secretary to the Administrative Assistant for Patient Care swill be fully discussed, infra, in the section entitled "Classifications Ex- cluded from the Unit as Confidential." White, as Administrative Assistant for Patient Care, oversees employ- ces represented by the Petitioner herein (I.PN's and nurses aides. for ex- ample); likewise. Nettlehorst has jurisdiction over laundry employees. who are also represented by this Petitioner. Goldstein, as Associate Ad- ministrator, is involved with labor relations policy and negotiations on an overall basis 1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1979), Grassi, Soest, and Horan all have access to future bargaining proposals, bargaining strategies, and supporting data. The Board has defined confi- dential employees as those who "assist and act in a confidential capacity to persons who formulate, de- termine, and effectuate management policies in the field of labor relations." The B. F. Goodrich Compa- ny, 115 NLRB 722, 724 (1956). Accordingly, in view of the position of White, Nettlehorst, and Goldstein on the Administrative Council and their involvement in determining labor relations policies, in addition to the fact that Grassi, Soest, and Horan act for them in a confidential capacity, we find these secretaries to be confidential employees and shall exclude from the unit the classifications occupied by them.10 Care Unit Ward Manager The "Care" unit ward manager position is held by Verlyl Jones, who has occupied this job since April 1979.11 The Care unit is a drug and alcohol abuse treatment facility on Compton's premises, but which is jointly operated by Compton and an orga- nization known as Comp-Care. Although Comp- Care contracts with Compton to provide this serv- ice, Jones is an employee of Compton and is paid by it. She has, however, received some training from the Comp-Care organization with respect to her duties. The record reflects that, although Jones reports to both Compton's head nurse and the Comp-Care director, the head nurse is responsible for establishing Jones' daily routine. Jones' duties involve evaluating the progress of Care unit pa- tients, consulting with the Care unit counselor, and sitting in on meetings involving both counselors and patients. Jones' patient evaluations are given to the head nurse who forwards them to Comp-Care. In her work in the Care unit, Jones comes into contact with RN's and LPN's (the latter classifica- tion being represented by the Petitioner herein.) Based upon all the evidence, and because there is no other unit in which Jones could be included, we shall clarify the unit involved herein to include the classification of Care unit ward manager. 1 2 '0 The Regional Director, in dismissing the petition, apparently based his decision on his finding that these positions were in existence prior to the 1978 contract and certification The record reflects, however, that these three positions came into being between September and November 1979. " Jones was hired prior to April 1979 as an outpatient clerk, a unit position, and promted into her current job. 12 In reaching this conclusion, we are also mindful of the congressional policy against the undue proliferation of hospital units. Our decision here is contrary to that of the Regional Director, who made no specific find- ings with respect to this classification. We do note, however, that the record is clear that this position came into being in 1979. Secretary to the President of Missouri Pacific Employees' Hospital Association This position, occupied by Marala Temprateep, was created in April 1980. She works for Allan Bestall, president of the Association. The record reflects that the Association has only recently se- parted from Compton. The record is not clear, however, as to when the job of Association Presi- dent came into existence and how long the presi- dent has had his own secretary. In addition, it is not clear that the duties of the Association Presi- dent have remained the same since the separation of Compton and the Association. Based upon all the evidence, we are therefore unwilling to find, as Compton and the Association urge, that the re- sponsibilities now discharged by Marala Tempra- teep existed prior to 1978. Contrary to Compton and the Association's posi- tion, the record is clear that Bestall does not sit on the Administrative Council, and that he is not in- volved with the formulation of management's labor relations policies, nor does he engage in any of the activity attendant to contract negotiations. Accord- ingly, based on all of the record evidence and be- cause Temprateep's job duties are similar to those performed by the represented clerks at the Associ- ation,'3 and contrary to the Regional Director, we will clarify the existing unit to include the classifi- cation of secretary to the President of Missouri Pa- cific Employees' Hospital Association. Financial Administrator of Missouri Pacific Employees' Hospital Association The employee occupying this position is Vickie Thomaser, who assumed these duties on April 8, 1980. There is no contention that this position ex- isted prior to 1978, nor is there any evidence that Thomaser serves in a confidential capacity. Comp- ton and the Association argue that the Financial Administrator does not share a community of inter- est with the unit employees. The record reflects, however, that Thomaser is engaged in performing routine bookkeeping functions, and does not exer- cise independent judgment with respect to the fi- nancial concerns of the Association, nor does she formulate the Association's financial policies. She thus appears to perform tasks not unlike those clerks already represented by the Petitioner herein. Accordingly, and contrary to the Regional Direc- tor who made no specific factual findings with re- spect to this particular classification, we clarify the existing unit to include the classification of Finan- ':1 It should be noted that the Petitioner represents approximately eight employees at the Association. COMPTON HILL MEDICAL CENTER 1551 cial Administrator to the Missouri Pacific Employ- ees' Hospital Association. ORDER It is hereby ordered that the petition for clarifi- cation of the unit under consideration herein be, and it hereby is, dismissed with respect to the fol- lowing classifications: Medical laboratory technolo- gists, secretary to the Administrator, secretary to the Medical Office, secretary to the Associate Di- rector of Nursing, and Patient Care Coordinator. IT IS FURTHER ORDERED that the collective-bar- gaining unit under consideration herein be, and it hereby is, clarified to include the classification of Care unit ward manager, secretary to the President of Missouri Pacific Employees' Hospital Associ- ation, and Financial Administrator of Missouri Pa- cific Employees' Hospital Association; and exclude secretary to the Administrative Assistant for Human Resources, secretary to the Administrative Assistant for Patient Care, secretary to the Admin- istrative Assistant for Environmental Services, and secretary to the Associate Administrator and Con- troller.