Heights Hospital

National Labor Relations Board - Board DecisionsNov 21, 1975

221 N.L.R.B. 563 (N.L.R.B. 1975)

HEIGHTS HOSPITAL 563 Heights Medical Center , Inc. d/b/a Heights Hospital' and Teamsters Freight, Tank Line and Automobile Industry Employees Local Union 988, affiliated with International Brotherhood of . Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner . Case 23-RC-4222 November 21, 1975 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held in the above-captioned case on May 15 and 16, 1975, before Hearing Officer John P. Cearley. Following the hearing, the Regional Direc- tor for Region 23 transferred this case to the Board for decision pursuant to Section 102.67 of the Board's Rules and Regulations. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free of prejudicial error. They are hereby affirmed. The Board has considered the entire record in this case, including the parties' briefs, and hereby makes the following findings: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction. 2. Petitioner is a labor organization within the meaning of the Act. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and'Sectlon 2(6) and (7) of the Act. 4. The Employer is a Texas corporation engaged in the operation of a hospital in Houston, Texas, known as Heights Hospital, utilizing the services of approximately 400 employees. Petitioner seeks to represent a unit of service and maintenance employ- ees, including such classifications as: nurses aides, dietary, housekeeping, and maintenance employees, orderlies, patient escorts, ward clerks, supply clerks, laboratory clerical employees, and radiology employ- ees, including medical clericals, records clericals, and aides, but excluding professionals, technical employ- ees, office clericals, and the usual statutory exclu- sions . The Employer argues that the appropriate bargaining unit should include, in addition to those employee classifications sought by Petitioner, all i The name of the Employer appears as amended at the hearing. 2 Petitioner indicates in its beef, however, that it is willing to represent any of these employees if found by the Board to be nontechnical 3 Member Penello disagrees with the decision to exclude the technical 221 NLRB No. 81 licensed,vocational nurses (hereinafter referred to as LVN's), operating zoom technicians, EKG techni- cians, all laboratory employees, radiology employees, respiratory therapy employees, and admitting room employees. Petitioner objects to their inclusion, claiming that these employees are essentially techni- cal employees with a different community of inter- est.2 In Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975), the Board concluded that separate service and maintenance and technical units are appropriate in a hospital setting. We accordingly find the service and maintenance unit sought by Petitioner to be appropriate.3 The only remaining issue concerns whether the disputed classes of employees, as described above, qualify as technical employees and should therefore be excluded from this unit. In Barnert, the Board set forth the standards for determining which classifications of employees are technical. Thus the Board stated: ' the kinds of employees we would include in the technical unit are those whose specialized training, skills, education and job requirements establish a community of interest not shared by other service and maintenance employees. This separate community of interest is frequently evidenced by the fact that such employees are certified, registered, or licensed. However, we also find employees may meet such standards without having been certified, registered, or licensed, and, if they do, we shall include them in the technical unit. The Board further stated:- In determining whether the following categories of employees are technical employees we apply the Board's standard criteria that technical employees are those "who do not meet the strict requirements of the term `professional employee' as defined in the Act but whose work is of a technical nature involving the use of independent judgment and requiring the exercise of specialized training usually acquired in colleges or technical schools or through special courses." [Footnote omitted] Applying those standards to the disputed classifica- tions here, we make, the following findings: Licensed Vocational Nurses. The Employer employs approximately 40 LVN's. The State of Texas requires employees from the service and maintenance unit for the reasons set forth in the dissenting opinions in Barnert Memorial Hospital Center, 217 NLRB No. 132, and Newington Children's Hospital 217 NLRB No. 134 (1975). 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that all LVN's be licensed. The requirements for obtaining a license are high school education, 1 year of formal training as an LVN, and successful completion of a State-administered examination. All but three of the LVN's working for the Employer have ' satisfied these requirements. The remaining three were licensed upon waiver of certain of the requirements at the time the State imposed them because of their extensive past work experience. Administratively assigned to the department of nursing, the LVN's perform a gamut of bedside nursing care functions ranging from giving baths to patients and making beds to serving and feeding patients, giving enemas, inserting catheters, and sometimes administering medications. With respect to administering medication, the Employer distin- guishes between ,those LVN's who are authorized to provide medication-referred to as medication LVN's-and those who are not so authorized- referred to as patient care LVN's. The medication LVN's obtain that status by passing a test adminis- tered by the Employer. There is also an additional subclassification of LVN's referred to as charge LVN's. They appear to have certain team leadership functions in addition to their own work functions. In the department of nursing, the registered nurses are the highest paid classification, followed by the graduate nurses. The LVN's receive the next highest pay,, with the charge LVN's receiving approximately 5 percent more than ,the medication LVN's, and the medication LVN's receiving approximately 5 percent more than the patient care LVN's. The ward clerks and operating room technicians are next in line on the pay scale, receiving approximately 10 percent less than the lowest paid LVN. Based on the licensing and formal training require- ments and also the nature of the LVN's job functions, which appear to require the exercise of independent judgment in the care given individual patients, we fmd the LVN's to be technical employ- ees with a different community of interest from the service and maintenance employees. While we recognize, as the Employer contends, that the LVN's in issue here appear overall to have less complex and responsible job, functions than the LPN's in Barnert, supra, we nonetheless find - the work functions of these LVN's to`be sufficiently technical in nature as to require a substantial exercise of independent judgment. Moreover, contrary, to the Employer's contention, we think that the patient care LVN's have a closer compuunity of interest with the other LVN's and technicals than with the service and maintenance employees; and, therefore, even though they, of all the LVN's, exercise the least amount of 4 Cf. Barnert, supra, where the Board found the certified technicians to be techtucals because of the special training and directional responsibility independent judgment in the performance of their work, we find them nonetheless to be technicals and shall exclude them from the unit. Operating Room Technicians: The Employer em- ploys two operating room technicians in the depart- ment of nursing. One of the technicians has been certified by the American Operating Room Nurses Association after having received 6 weeks of class- room and clinical training at another local hospital. However, neither the Employer nor the State requires a certification or license to perform as an operating room technician. The principal job functions of the operating room technicians are to hand surgical instruments to physicians in surgery and to scrub the operating rooms. These duties' are for the most part routine and do not require the use of any substantial degree of independent judgment. Both the, certified and the noncertified technician perform the same duties, and there is no evidence that the certified technician has training or, other directional responsibilities with respect to the noncertified technician. Based on the similar' job functions of the two technicians, which we find to be somewhat routine in nature, and also on, the fact that no special extensive training or certification is required to perform the work, we find the operating room technicians are not technicals, but are rather more closely aligned in interests with the service and maintenance unit.4 We shall therefore include them in that unit. EKG Technicians: The Employer employs two EKG technicians in the department of nursing. These employees conduct electrocardiograph tests which trace a patient's heart activity. The work, while specialized, basically is routine and can be and is on occasion performed by other employees., There are no special educational or licensing requirements for the job; the minimal training needed is provided directly by the Employer. Petitioner indicates in its brief to the Board that it is prepared to include this classification of employees in the unit as nontechni- cals. , Based on the above, we fmd the EKG technicians are' not technicals and should be included in the service and maintenance unit. Laboratory Employees: The employees in dispute here are the 13 technicians who work in the -laboratory department and whose principal function is to conduct the tests performed in the laboratory. No special training or licensing is required to fill these positions. Although five of the technicians are registered with private professional organizations after having satisfied their particular requirements, the Employer does not distinguish between the registered and nonregistered employees in the assign- those individuals had with respect to the noncertified technicians HEIGHTS HOSPITAL ment of work or pay,'nor do theregistered, employees appear to have any training' or directional responsi- bilities with respect to those not registered. All , the technicians except one are regularly rotated around the test stations; 5 they receive their work orders from physicians and perform their testing functions by follp g standard procedures devel- oped by the department head for all the tests conducted in the laboratory. Technicians are not permitted to vary from these procedures. Because the test procedure is' provided and must be strictly conformed to, ' the nature of the work is routine and appears to require little exercise of independent judgritent; 'and, inasn! uch as no special educational or licensing requirements are needed for the job, we find the laboratory ,technicians are not technical employees and, thus, appropriately belong in the service and maintenance unit .6 Radiology Technicians: The Employer employs seven radiology, technicians in the radiology depart- ment who are principally responsible for taking X- rays of patients. Four of the seven are registered with the American Registry of Radiologic Technologists. In order to be registered with that organization, a technician must complete 24 months of training in an approved hospital program and pass an examination. Although it does ' not require registration, the Em- ployer does require each technician to have complet- ed a hospital-approved training program. The three nonregistered employees have all completed such a program; two of these individuals are registered in foreign countries and the third and only remaining individual has 20 years of experience. When an X-ray is ordered by a physician, the radiology technician takes the patient into the X-ray room, loads the film in the machine, and takes the exposure requested on the requisition form. Although the technicians do not evaluate the developed X-ray, they are required to exercise some independent judgment and utilize their training in the positioning of patients and in the handling of the X-ray equipment and film. Based on the Employer's requirement that an employee filling this position must complete an approved training program, the uniformly high amount of training which the employees presently filling these positions have, and the nonroutine nature of their regular work functions, we find these employees to be technicals and we shall, therefore, exclude them from the unit. 5 The one exception is the laboratory histologist who is regularly assigned to work with the pathologist. Although this individual has satisfied the requirements for registration with the American Society of Clinical Pathologists , the record does not establish that this individual's work functions are substantially different from the other laboratory technicians 565 Respiratory Therapists: The 'Employer employs seven respiratory therapists in the respiratory therapy department. There, are no state licensing require- ments and the Employer only requires a high school education to fill these positions. However, two of the seven therapists have been certified by the American Association of Respiratory Therapists. In order to become certified, an individual must complete a year of formal training, have a year of experience, and must also pass an exam. Although the certified therapists perform essentially the same job functions as do the noncertified individuals, they are paid at about a 10-percent-higher wage level. Of the remain- ing five individuals, one has not yet completed training as a trainee; this individual earns approxi- mately 25 percent less than the other four individuals who have completed training but are noncertified. The record establishes that approximately 6 months on-the-job training is required to qualify an individu- al to perform all the operations that respiratory therapists may be called upon to perform. The regular work functions of the therapist are to administer positive breathing treatments and aerosol medications prescribed by the attending physician. Respiratory therapy procedures are established by the department head and are very precise. The technicians must follow these procedures very closely in the operation of the respiratory equipment. They are, however, authorized to draw medications which are used in the equipment and are sometimes called upon to prepare heparinized syringes. It is also very important for the therapist to know when the respiratory machine is not functioning properly and be able to administer the correct oxygen mixture manually if necessary-commonly known as "bagging the patient." This skill is particularly important for it may mean the life or death of the patient. Notwithstanding that these therapists follow thera- py procedures laid out by their department head, based on the extensive on-the-job training required to prepare a therapist to perform all his, functions, and the obvious exercise of independent judgment required to properly monitor the respiratory equip- ment , recognize when it is malfunctioning, and then take emergency, manual, life-or-death corrective action, we conclude that all the respiratory therapists are technicals. Accordingly, we shall exclude them from the unit sought herein. Admitting Employees: The admitting department is located on the first floor in a separate office but in with respect to the amount of independentjudgment required in performing thejob 6 Cf. Barnert, supra, where the Board found the laboratory employees to be technicals under circumstances where they had extensive training and registration requirements and they were authorized and expected to offer their recommendations and opinions to physicians with respect to the test results 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same general area as the other business offices. It is headed by a supervisor, and has both clerical employees and patient escorts performing the func- tions necessary to admitting patients to the hospital. The parties are in agreement that the patient escorts should be included in the service and maintenance unit; only the clericals are in dispute, with the Petitioner taking the position that they are office clericals and the Employer contending that their function is more akin to those performed by others in the service and maintenance unit. The functions performed by the admitting depart- ment clericals include: interviewing patients and obtaining the information necessary for admission to the hospital, placing patients in the proper ward for the illness diagnosed, performing chest X-rays on almost all of the incoming patients to detect and prevent the spreading of infectious diseases, and, finally, the clericals may on occasion also escort patients to their room or laboratory when patient escorts are not available. Considering the nature of their regular job func- tions, particularly the relatively small amount of time they spend on traditional office clerical functions and the relatively substantial amount of time they spend with the individual patient in screening, X- raying, and assigning and escorting patients to their proper wards, we find the admitting department clericals have interests more closely aligned to the service and maintenance unit.7 On the basis of the foregoing, we find the following employees of the Employer constitute a unit appro- priate for collective bargaining within the meaning of Section 9(b) of the Act: All service and maintenance employees em- ployed by the Employer including nurses aides, orderlies, housekeeping and dietary employees, ward clerks, supply clerks, maintenance employ- ees, laboratory clericals radiology , employees, clericals, and aides, medical records clericals, operating room technicians, EKG technicians, laboratory employees, and admitting room cleri- cals, including patient escorts; excluding LVN's, respiratory therapy technicians, radiology techni- cians, office clericals, professional employees, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] 7 Sisters of St Joseph of Peace, 217 NLRB No 135 ( 1975). See also St Catherine 's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc, 217 NLRB No. 133 (1975)