Newington Children's Hospital

National Labor Relations Board - Board Decisions

May 5, 1975

217 N.L.R.B. 793 (N.L.R.B. 1975)

NEWINGTON CHILDREN'S HOSPITAL 793
Newington Children's Hospital amdDistrict 1199, Na-
tional Union of Hospital and Health Care Em-
ployees, RWDSU, AFL-CIO,' Petitioner. Case
1-RC-13524
May 5, 1975
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Joseph A. Stupak of
the National Labor Relations Board. Following the
chose of hearing, the Regional Director for Region 1
transferred this case to the Board for decision. Briefs
were filed by the Employer and the Petitioner.
On January 16, 1975, the Board, having determined
that this and a number of other cases in the health care
industry presented issues of importance in the adminis-
tration of the National Labor Relations Act, as
amended, scheduled oral argument in several of the
cases, including this one, as well as oral argument on
the general question of the composition of appropriate
bargaining units in the health care industry. Member
Kennedy dissented from the grant of oral argument.
Oral arguments were heard on January 27, 1975. Briefs
amici curiae were filed by interested parties and have
been carefully considered by the Board.
The Board, having duly considered the Hearing Of-
ficer's rulings made at the hearing, finds they are free
from prejudicial error. They are hereby affirmed. Upon
the entire record in this case,' including the parties'
briefs, the oral arguments, and the amici briefs, the
Board finds:
1. The Employer is a general pediatric hospital, with
its sole place of business in Newington, Connecticut,
where it is engaged in the operation of a private, non-
profit, health care facility. The parties have stipulated
and we find that the Employer's gross annual revenue
exceeds $250,000, that the Employer annually receives
goods from outside the State of Connecticut having an
annual value exceeding $50,000, and that the Employer
is engaged in commerce within the meaning of the Act.
We further find that it will effectuate the purposes of
the Act to assert jurisdiction herein.
1 It was agreed at the hearing that Petitioner's correct name is that which
appears in the petition Such name differs slightly from the name appearing
as correct in the transcript, which we assume to be a transcript error.
2 At the hearing, a stipulation entered into by the Employer and the
Petitioner provided for the introduction, as a joint exhibit, of a transcript of
the hearing before the State Labor Relations Board in Hartford, Connecti-
cut This hearing was based on a similar petition filed by the Petitioner with
the State Labor Relations Board seeking a unit similar to that sought in the
above-entitled case. Such petition was filed with the State before the effec-
tive date of the 1974 amendment to the Act and, apparently, has since been
withdrawn.
2. The parties stipulated and we find that the Peti-
tioner is a labor organization within the meaning of the
National Labor Relations Act.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and (2)(6)
and (7) of the Act.
4. Petitioner seeks to represent a unit of service and
maintenance employees including nurses aides,
housekeeping, dietary, maintenance, engineering, pho-
tography, orthotic, and prosthetic employees, but ex-
cluding supervisors and technical, clerical, and profes-
sional employees. In support of its position the
Petitioner contends that the service and maintenance
employees sought in the petition have different wage
rates, working hours, skills, uniforms, educational re-
quirements, and other working conditions separate and
apart from those enjoyed by professional, technical,
and clerical employees it seeks to exclude from the unit.
The Employer disagrees, contending that the appro-
priate bargaining unit should include, in addition to
those employee classifications sought in the petition, all
licensed practical nurses (hereinafter referred as
LPN's), additional technical classifications, and other
employees who perform functions related to those of
unit personnel. In support of its position, the Employer
argues that the petitioned-for unit would lead to frag-
mentation of the Employer's work force and would
create a multiplicity of bargaining units. The Employer
also contends that Petitioner seeks a unit which lacks
a community of interest as demonstrated by the fact
that the employees sought are physically located all
over the hospital's main building, are administratively
assigned to 13 different departments, and vary as to
function, skill, pay grade, and hours. The Employer
argues further that the hospital is a unique institution
which is responsible for the total rehabilitation of a
child, requiring that all personnel work together and,
consequently, be represented in a single unit.
The service and maintenance employees in the unit
sought by Petitioner perform primarily manual and
routine job functions. Accordingly, the Employer re-
quires only minimal qualifications for employment in
these positions. Service and maintenance employees are
generally paid less than the employees excluded by
Petitioner and interchange is extremely limited due to
the educational and licensing requirements of the ex-
cluded positions.
In Barnert Memorial Hospital Center,' issued this
day, we set forth in some detail the reasons for conclud-
ing that technical employees in a health care institu-
tion, who are generally licensed, certified, or registered,
constitute a readily identifiable group of technical em-
3 Nathan and Miriam Barnert Memorial Hospital Association, d/b/a
Barnert Memorial Hospital Center, 217 NLRB No 132
217 NLRB No. 134
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees with a community of interest separate and dis-
tinct from that of service and maintenance employees,
and thus may constitute an appropriate unit. We note
that such technical employees are more highly trained
in medical technical procedure, either through comple-
tion of higher level formal education programs or spe-
cial technical training programs, or both, are higher
skilled and often higher paid, often work in separate
laboratories or areas, and perform work requiring a
higher degree of responsibility and initiative than do
the service and maintenance employees.
In Barnert, we concluded that LPN's, because of the
requirements that they receive special schooling, pass
qualification examinations, and be licensed by the State
before they can perform as LPN 's were appropriately
classified as technical employees. We reaffirm that con-
clusion herein, because we are satisfied that it naturally
derives from the fact that their education, training,
qualifications, skills, and duties clearly differentiate
their interests from those of service and maintenance
employees generally and give them interests in com-
mon with technical employees who are subject to the
same sort of schooling, licensing , registration, or cer-
tification requirements; requirements which at once
demonstrate their qualification for, and competency in,
performing the duties of their specialty.
It is true that in Barnert the petitioner sought to
represent technical' in a separate unit, whereas here
Petitioner seeks simply to exclude them from the serv-
ice and maintenance unit. We see nothing in this cir-
cumstance which compels the conclusion that these
technical employees must be included in the service and
maintenance unit which Petitioner seeks to represent.
In the first place a service and maintenance unit in
a service industry is the analogue to the plantwide pro-
duction and maintenance unit in the industrial sector,
and as such is the classic appropriate unit.' Secondly,
the technical employees do constitute a group of em-
ployees with interests sufficiently distinct and separate
from those of service and maintenance employees that
they may constitute a separate appropriate unit; thus
their exclusion will not leave them without realistic
opportunity to seek representation for collective-bar-
gaining purposes. Thirdly, the establishment of both a
service and maintenance unit and technical unit cannot
realistically be said to constitute the sort of undue pro-
liferation of bargaining units which the Congress di-
rected the Board to prevent.' Finally, and of equal if
not greater importance, is the fact that Section 9(b) of
the Act directs the Board to make unit determinations
which "assure employees the fullest freedom in exercis-
ing the rights guaranteed by this Act." It seems obvious
4 The President and Directors of Georgetown College for Georgetown
University, 200 NLRB 215, 216 (1972)
5 See the discussion in Barnert Memorial Hospital Center, supra
to us that "fullest freedom" is not assured by the policy
advocated by our dissenting colleagues of placing in a
unit of employees, which is otherwise appropriate,
other employees which the Petitioner does not seek to
represent, and may not be qualified to afford adequate
representation, where such additional employees may
also constitute an appropriate unit.' While such a
combined unit may also be appropriate, it is a well-
established principle that nothing in the policy of the
Act can be said to place upon a union the obligation of
seeking the largest appropriate unit, or even the most
appropriate unit; it is enough that the unit sought is an
appropriate unit.'
For the foregoing reasons we are satisfied that the
service and maintenance unit excluding LPN's and
other technical employees in an appropriate unit.
Though Petitioner sought the exclusion of technical
employees, the parties are in dispute as to whether
certain employees are technical employees and thus
subject to exclusion from the unit.
Applying the criteria stated in Barnert Memorial
Hospital, it is obvious that certain disputed employees
must be excluded from the service and maintenance
unit as technicals. The dental lab technicians must take
a 2-year dental laboratory course and be relicensed
every year. Although the record is not wholly clear as
to the orthotists and prosthetists whom the Petitioner
would include, it is apparent that the Employer prefers
employees in these positions to possess the national
certification acknowledged by the State of
Connecticut.' By the same token, the Employer pre-
fers that its medical technologists be registered by the
American Society of Medical Technologists and that
they attend an approved school of medical
technology.' The electroencephalography-technolo-
gists I and II must be certified by the American Board
of Registration for Electroencephalogenic Technolo-
gist or at least be eligible for part I of the exam.10 The
surgical technicians must complete a formal technician
training program approved by the ' National Associa-
6 Such added employees may well determine the question against repre-
sentation, though the other employees desire representation by Petitioner
which has sought to represent them
I See discussion in Barnert Memorial Hospital Center, supra.
8 In fact, the position description reads that certification is a requirement.
The record indicates that the orthotist or prosthetist trainee has "a clinical
affiliation with New York University" and is at the hospital on a temporary
-basis In this circumstance, we shall exclude the orthotist or prosthetist
trainee from the service and maintenance unit
9 In finding the medical technologists to have a community of interest
sufficiently different from that of the service and maintenance employees
justifying their exclusion, we do not consider whether the medical technolo-
gists may, in fact, be professionals It is enough for the purposes of this
Decision to find that they are properly excluded from the unit
10 The job description for technologist trainee-EEG indicates that these
trainees are required to have completed 1 year of college or university
education and, as trainees, are in the line of progression for promotion to
become EEG technologists I when they have completed the program of
additional training which they are now pursuing Accordingly, we shall
exclude them from the service and maintenance unit
NEWINGTON CHILDREN'S HOSPITAL ,
tion for the Training of Surgical-Technicians and must
be eligible to take a certification exam. The job descrip-
tion for the chief technician requires that this in-
dividual be a professional nurse, or have LPN training
or special training as an orthopedic technician. The
radiologic technologists must have 2 years of radiologic
technology school and a certification with the Ameri-
can Registry of Radiologic Technologists, and the res-
piratory therapy technician must also carry certifica-
tion. The recreation activity specialist must have
Completed a formal course of instruction in a specialty
field.'
The most obvious factor differentiating these em-
ployees from the service and maintenance employees is
that they, like other technical employees, are preferably
certified by a school, licensed by the State, or registered
by an association establishing and, maintaining stand-
ards of proficiency and performance in their fields of
competency. Of course, the LPN's fit within this cate-
gory since they must be licensed by the State of Con-
necticut. The duties and responsibilities required of
these employees demand technical knowledge, skills,
training , and judgment . Proficiency in these areas re-
quires special education and the uniqueness of their
responsibilities and skills is demonstrated by their li-
censes, certifications, and registrations. We shall there-
fore exclude them and other technical employees from
the service and maintenance unit found appropriate
herein.
Other disputed employees, however, must be in-
cluded in the unit petitioned for. There is no basis for
excluding the photographer-cinematographer-televi-
sion technician (apparently considered to be a technical
employee by the Employer), or the leather technicians
and the orthotic footwear technicians (alleged to be
technical employees by the Petitioner), since these em-
ployees are not required to complete higher level for-
mal education programs or special technical training
programs or to be licensed, registered, or certified.
Therefore, we shall include these classifications and the
recreation attendant in the service and maintenance
unit.
We shall also include in the service and maintenance
unit all clerical employees who are not business office
clerical employees. 'Z The hospital clericals (as con-
trasted with business office clericals) are located geo-
graphically throughout the hospital, within various de-
partments composed of other service and maintenance
employees. Their ,work and working conditions are
materially related to unit work. For example, the clerk
I1 in the operation room- is in the nursing department,
11 The recreation attendant is not required to possess any special qualifica-
tions which would justify the exclusion of this employee from the unit
sought
12 Mercy Hospitals of Sacramento, Inc , 217 NLRB 765 (1975).
795
relays and receives messages from the operating room,
and is supervised by the operating room supervisor.
The ward clerks are also in the nursing department, are
supervised by the head nurse, answer-the patients' in-
tercom, and give and receive telephone messages. In the
housekeeping department, the secretary I acts as a
secretary to the executive housekeeper, coming in con-
stant contact with other housekeeping employees who
have questions throughout the day. Clearly these em-
ployees must be included in a service and maintenance
unit.'s
On the other hand, there are business office clericals
whose community of interest is not related to that of
the unit sought. The bookkeeper and cashier in the
business office appear to be such employees. Since Peti-
tioner sought to exclude all business-related employees
as a class, regardless of their location in the hospital or
related with unit employees, and since the Employer
sought to include virtually all of the business em-
ployees, the issue of whether particular classifications,
of these employees have a community-of interest with
other employees in the unit was not litigated in detail.
Accordingly, we are unable on this record, except to
the extent indicated above, to determine definitively
which classifications are business office clericals, to be
excluded, and which are properly within the service
and maintenance unit.14
On the basis of the foregoing, we find that the follow-
ing employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All service and maintenance employees employed
by the Employer, including hospital clerical em-
ployees; but excluding licensed practical nurses
and other technical employees, medical technolo-
gists, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the
Act.' 5
[Direction of Election omitted from publication.] 16
13 St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin,
Inc., 217 NLRB 787 (1975).
14 See, however, St. Catherine's Hospital, supra; Sisters of St Joseph of
Peace, 217 NLRB 797 (1975). In the event that the parties are unable to agree
as to the status of any particular employees, except those specifically re-
ferred to and placed above, such employees may, of course, vote subject to
challenge.
15 Since the inclusion of the hospital clerical employees changes the
composition of the unit specifically sought, the Petitioner may not wish to
proceed to an election in this unit, or, desiring to do so, may have an
inadequate showing of interest In these circumstances, we direct Petitioner
to notify the Regional Director within 10 days of this Amended Decision
whether it wishes to proceed to an election, and, if so, to submit at the time
such additional showing of interest as may be required to support its peti-
tion
16 [Excelsior footnote omitted from publication ]
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBERS KENNEDY AND PENELLO, dissenting:
For the reasons set forth in our dissent in Barnert
Memorial-Hospital Center,17 issued today, we disagree
with our colleagues' emphasis on the licensure, regis-
tration, and certification of technical employees in ex-
cluding them from the unit of service and maintenance
employees. In view of the congressional mandate to
avoid proliferation of bargaining units in the health
care industry and the express congressional approval of
this Board's decision in Extendicare of West Virginia,
Inc., d/b/a St. Luke's Hospital," to establish broader
units in this industry by including technical employees
in a unit of service and maintenance employees, we find
the unit found herein to be inappropriate.
The principal factor relied on by our colleagues to
exclude technical employees from the service and main-
tenance unit herein is the fact that they have been
"licensed, certified, or registered." As we stated in our
dissent in Barnert, this Board should not surrender its
responsibility in unit determinations to States, schools,
or associations.
The result reached by the majority in this case is
illustrative of the fears voiced by Congress. Not only
will this decision result in undue proliferation of units,
but the criteria on which our colleagues rely will create
confusion within the units. The unit placement of sev-
eral categories of employees illustrates this confusion
resulting from the new approach of the new majority.
For example, we do not believe that the certification of
the orthotists and prosthetists mystically destroys the
community of. interest which these employees share
with the service and maintenance employees. While
certification is based upon a high school education and
a 4-year apprenticeship, in no way does it tend to estab-
lish that orthotists and prosthetists have a community
of interest separate and apart from that of other senior
craftsmen included in the service and maintenance
unit.
Our colleagues in the majority glibly state that "the
establishment of both a service and maintenance unit
and a technical unit cannot realistically be said to con-
stitute the sort of undue proliferation of bargaining
units which Congress directed the Board to prevent."
In our view, the opposite conclusion is true. Surely, in
view of both the House and Senate Reports19 concern-
ing the health care amendments, no less comprehensive
unit than a service and maintenance unit including
technical employees is justified.
17 217 NLRB 775_(1975)
1s 203 NLRB 1232 (1973)
19 S. Rept 93-766, 93d Gong., 2d sess. 5 (1974), H. Rept. 93-1951, 93d
Cong., 2d sess. 7 (1974).
20 134 NLRB 1101 (1961)
The -majority position is directly contrary to the
policy followed by the Board since The Sheffield
Corporation,20 where it was announced that the Board
was abandoning its practice of automatically excluding
all technical employees from other units whenever their
unit placement is in issue . In Sheffield, the Board de-
cided no longer to use an "automatic - placement for-
mula," but to give effective weight to the overriding
consideration of the community of interests of such
employees with other nontechnical employees. The
new test set forth in Sheffield requires the Board to
"make a pragmatic judgment in each case, based upon
an analysis of the following factors, among others:
desires of the parties, history of bargaining, similarity
of skills and job functions , common supervision, con-
tact and/or interchange with other employees,
similarity of work conditions, type of industry, organi-
zation of plant, whether the technical employees work
in separately situated and separately controlled areas,
and whether any union seeks to represent technical
employees separately."21
In the instant case, our colleagues ignore the Shef-
field precedent and apply a mechanical rule of exclud-
ing "licensed , certified , or registered" employees from
hospital service and maintenance units. We note that
the majority has excluded other "technical" employees,
who are not licensed , certified , or registered , but who
meet the majority 's additional , but somewhat confus-
ing, test for exclusion as technical employees. However,
at least as to those employees who are licensed , certi-
fied, or registered , the majority is departing from long-
standing Board precedent by failing to undertake a
meaningful examination and evaluation of the overrid-
ing consideration of the community of interests of such
employees with other hospital employees.22
The effect of the new approach taken by the majority
herein is to impose a mechanical approach to unit
placement only in the health care industry , the very
industry in which Congress has admonished the Board
to avoid undue proliferation of bargaining units. We do
not approve of such an untenable result.
As stated in our dissent in Barnert, we find the con-
gressional approval of the Board's broad units of serv-
ice and maintenance employees, including technical
employees, to be controlling herein . Accordingly, we
would include the technical employees in the service
and maintenance unit.
21 Sheffield Corporation , supra at 1103-04
22 It is noted that, in common with the service and maintenance em-
ployees, these technical employees are hourly paid, punch timeclocks, have
contact with other employees who are included in the service and mainte-
nance unit, share common dining and break facilities , share a common
personnel policy, participate in the same orientation programs , and share
common fringe benefits.