Planned Parenthood Association of Miami Valley, Inc.

National Labor Relations Board - Board Decisions

May 23, 1975

217 N.L.R.B. 1098 (N.L.R.B. 1975)

1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Planned Parenthood Association of Miami Valley, Inc.
and Retail Clerks Union, Local No. 1552, Retail
- Clerks International Association,-AFL-CIO, Peti-
tioner. Case 9-RC-10795
May 23, 1975
DECISION AND DIRECTION OF ELECTIONS
BY CHAIRMAN MURPHY AND MEMBERS FANNING, KENNEDY;
AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations. Act, as amended, a hearing
was held before Hearing Officer J. Michael Fischer.
Following the hearing, and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, and by direction of the Regional Director for
Region 9, this case was transferred to the National
Labor Relations Board for decision. The Employer and
the Petitioner filed briefs.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs filed herein, the Board finds:
1. The Employer, a nonprofit Ohio corporation af-
filiated with Planned Parenthood Federation of
America, operates family planning clinics in Ohio. It
performs vasectomies and gynecological examinations,
provides counseling and guidance in birth control
methods, and distributes all types of contraceptive ma-
terials for about 10,000 patients. The Employer's prin-
cipal facility is in Dayton but it also operates in five
other contiguous counties. It has no patients from out
of the State.
During the year 1974 the Employer's gross income
was approximately $520,000 received from the follow-
ing sources: $302,000-the United States Department
of Health, Education and Welfare; $50,000-the State
of Ohio Welfare Department; $95,000-private fund
drives; $11,000-special fund-raising events; and
$45,000 to $50,000-patient fees. During the same
year the Employer purchased goods and supplies in
the amount of $40,000 to $45,000, of which between
$25,000 to $28,000 was for contraceptive devices and
various supplies, furniture, and equipment from out
of the State.
The Employer contends that the Board should not
assert jurisdiction because the nature of its services is
purely local in character and it is not an institution
devoted -to the care of the sick, infirm, or aged, and
therefore does not qualify as a health care facility under
Section 2(14), an amendment to the Act.
Upon the basis of the whole record, we find that the
Employer is engaged in rendering health care services
and, therefore, contrary to the Employer's contention,
it falls within the definition of a health care facility
covered by Section 2(14), the recent amendment -to the
Act; the impact of the Employer's service on commerce
is sufficiently substantial to warrant assertion of our
jurisdiction herein; and, it will effectuate -the purposes
of the Act to, do so.'
The Board's decision in Choice Inc., 212 NLRB No.
86 (1974), issued prior to the effective-date of the
amendments to the Act concerning "health care insti-
tutions" is hereby overruled to the extent that it is
inconsistent with our decision herein. -
2. The labor organization involved claims to -repre-
sent certain employees of the Employer. -
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act.
4. The parties are in substantial agreement as to the
composition of the unit including registered nurses and
that the nurses should be given a choice to be repre-
sented separately or to be included with the other em-
ployees. However, the Employer contends that Marga-
ret Daugherty, the manager of the bookkeeping
department, is a confidential employee and should be
excluded. The Petitioner would include her in the unit.
In support of its argument the Employer asserts that
the bookkeeper keeps all financial data, makes all cash
deposits and disbursements, makes all tax reports and
pays all taxes, writes all payroll checks, and has access
to personnel and confidential files for reports which she
furnishes to the executive director with all the financial
information.' Since the B.E Goodrich Company
case,' the Board has consistently held that an em-
ployee will not be regarded as confidential merely by
virtue of having access to confidential records relating
to the budget and other financial data. Furthermore,
there is no evidence that the executive director formu-
lates, determines, and effectuates management policy
in the field of labor relations. We find that she is not
a confidential employee and we shall include her in the
unit.
Accordingly, we fmd the following voting groups
constitute appropriate units within the meaning of Sec-
tion 9(b) of the Act:
I
Group A: All registered nurses excluding all other
employees.
Group B.• All licensed practical nurses, medical
assistants, drivers, clerical team leaders, clerks,
social service counselors, librarians, outreach
workers, and bookkeepers employed at the Em-
I Circle Clinic, Inc., 215 NLRB No. 84, fn 2 (1974), Waterloo
Surgical and Medical Group, 213 NLRB No 61 (1974).
2 115 NLRB 722, 724 (1956)
217 NLRB No. 181
PLANNED PARENTHOOD ASSOCIATION
ployer's facilities, excluding administrative assist-
ants, department heads, professional employees,
guards and supervisors as defined in the Act.
However, as the petitioned-for unit includes profes-
sional and nonprofessional employees, which the Board
cannot join in a single unit without the consent of a
majority of the professional employees, the desire of the
professional employees must first be determined in a
separate vote. Accordingly, we shall direct separate
elections in voting groups A and B. The employees in
group A will be asked two questions on their ballot:
1. Do you desire to be included in the same unit
as other employees employed by the Employer
for the purposes of collective bargaining?
2. Do you desire to be represented for the purpose
of collective bargaining by Retail Clerks Union,
Local No. 1552, Retail Clerks International As-
sociation , AFL-CIO?
If a majority of the professional employees in voting
group A vote yes to the first question, indicating their
desire to be included in a unit with the nonprofessional
employees, they will be so included. Their votes on the
second question will then be counted with the votes of
the nonprofessional employees voting- in group B to
decide the representative for the entire combined bar-
gaining unit (professionals and nonprofessionals). If,
on the other hand, a majority of the professional em-
ployees in voting group A do not vote for inclusion,
they will not be included with the nonprofessional em-
ployees and their votes on the second question will then
be separately counted to decide whether or not they
wish to be represented by the Petitioner in a separate
professional unit.
1099
Our ultimate determination is based in part on the
results of the elections. However, we make the follow-
ing findings in regard to the appropriate unit:
1. If a majority of the professional employees vote for
inclusion in a unit with the nonprofessional employees,
we find that the following employees will constitute a
unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All registered nurses, licensed practical nurses,
medical assistants, drivers, clerical team leaders,
clerks, social service counselors, librarians, out-
reach workers, and bookkeepers employed at the
Employer 's facilities, excluding administrative as-
sistants, department heads, guards, and supervi-
sors as defined in the Act.
If a majority of the professional employees do not
vote for inclusion in the unit with nonprofessional em-
ployees, we fmd the following two units to be appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
Unit A: All registered nurses employed at the Em-
ployer's facilities, excluding all other em-
ployees.
Unit B: All licensed practical nurses, medical as-
sistants, drivers, clerical team leaders, clerks,
social service counselors, librarians, outreach
workers, and bookkeepers employed at the Em-
ployer's facilities, excluding administrative as-
sistants, department heads, professional em-
ployees, guards, and supervisors as defined in
the Act.
[Direction of Elections and Excelsior footnote' omit-
ted from publication.]