St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc.

National Labor Relations Board - Board DecisionsMay 5, 1975

217 N.L.R.B. 787 (N.L.R.B. 1975)

ST. CATHERINE'S HOSPITAL OF DOMINICAN SISTERS OF KENOSHA St. Catherine's Hospital of Dominican Sisters of Keno- sha, Wisconsin , Inc.' and National Union of Hospi- tal & Health Care Employees , a Division of RWDSU, AFL-CIO, Local 1199W , Petitioner.' Cases 30-RC-2425, 30-RC-2426, and 30-RC- 2427 May 5, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, and after consolidation of the petitions herein by the Regional Director for Region 30, a hearing was held before Hearing Officer Gary R. Johnson on October 10 and 11, 1974. On November 22, 1974, the Regional Direc- tor for Region 30 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found that the Employer's licensed practical nurses, office clerical employees, technical employees, and service and maintenance employees constitute a unit appropriate for collective bargaining within the mean- ing of Section 9(b) of the Act.' Thereafter, the Peti- tioner, in accordance with Section 102.67 of the Na- tional Labor Relations Board Rules and Regulations, Series 8, as amended, filed a request for review of the decision of the Regional Director, and an accompany- ing brief, on the ground that the Regional Director erred in directing an election in a broad unit rather than in the three separate units of licensed practical nurses, office clerical employees, and service and maintenance employees sought by the Petitioner.' Thereupon, the I As amended at the hearing 2 Service & Hospital Employees International Union, Local 150, AFL-CIO, was granted intervention at the hearing on the basis of an ade- quate showing of interest 3 The Regional Director found that an appropriate unit would consist of all full-time and regular part-time employees of the Employer , including service and maintenance employees , licensed practical nurses, technical employees , and office clerical employees , but excluding employees in the payroll and accounting , electronic data processing , administrative , and per- sonnel departments, professional employees, members of a religious order, and guards and supervisors as defined in the Act Employees in the afore- mentioned departments were excluded by stipulation of the parties who agreed that such employees were either confidential or managerial, or both The parties also stipulated that registered nurses and medical technologists should be excluded from the unit on the grounds that they are professional employees ; that the director of nursing services should be excluded from the unit since she is a confidential employee , and that department heads and the coffeeshop- supervisor are supervisors within the meaning of Sec. 2(11) of the Act, so as to be excluded from the unit A At the hearing , the Petitioner amended its petitions in Cases 30-P C-2425, 2426, and 2427 to seek respective units of All regular full-time and regular part-time licensed practical nurses, excluded all regular full - time and regular part -time service and mainte- nance employees, all technical employees , professional employees, of- i ice clerical employees , members of a religious order, guards and super- visors as defined by the Act 787 Employer filed a brief in opposition to the Petitioner's request for review and a request for oral argument. 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.' Oral ar- guments were heard on January 27, 1975. Briefs amici curiae were filed by interested parties and have been duly considered by the Board. By telegraphic order dated February 4, 1975, the Board granted the Petitioner's request for review and stayed the election pending decision on review. The Board has considered the entire record in this case, with respect to the issues under review, including the oral arguments and the amicibriefs, and makes the following findings: The Employer, a nonprofit Wisconsin corporation, is engaged in the operation of a hospital at Kenosha, Wisconsin, known as St. Catherine's Hospital, which provides 270 beds for in-patients and has approxi- mately 860 employees. The employees in the units sought herein include approximately 450 service and maintenance employees, approximately 142 licensed practical nurses, and more than 48 office clerical em- ployees. As noted, the Petitioner seeks to represent the Employer's licensed practical nurses, office clerical em- ployees, and service and maintenance employees in three separate units. The Employer and the Intervenor contend that only an overall unit of these three groups of employees is appropriate, as found by the Regional Director. One of the issues presented by this case is whether licensed practical nurses at the' Employer's hospital All regular full-time and regular part-time office clerical employees; excluded: all regular full-time and all regular part-time licensed practi- cal nurses, and service and maintenance employees, technical em- ployees, members of a religious order, guards and supervisors as defined in the Act. All regular full-time and all regular part-time service and maintenance employees; excluded all regular full-time and all regular part-time lic- ensed practical nurses, professional employees, clerical employees, of- fice clerical, technical employees, members of a religious order, guards and supervisors as defined in the Act we do not agree with Member Kennedy that a unit which is otherwise appropriate becomes inappropriate simply because the labor organization seeking'to represent employees in that unit represents, or is seeking to represent, employees in another appropriate unit. To say such employees have sufficient separate interests to warrant their own unit when union "X" seeks to represent them, but not when union "Y" does, appears to us illogical and, in a sense, unfair not only to union "Y" but, more importantly, to the employees involved. 5 Member Kennedy dissented from the grant of oral argument. 217 NLRB No. 133 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be granted a separate bargaining unit as sought by the Petitioner. As to this issue, we find, for the reasons set forth hereinafter, that a unit consisting solely of licensed practical ni'rses is inappropriate. We also find inappropriate the Regional Director's place- ment of licensed practical nurses in the same unit with service and maintenance employees. Based upon the legislative history of the nonprofit hospital amend- ments to the Act, an absence of bargaining history, and the community of interest shared by the employees involved, we find that an appropriate bargaining unit in Case 30-RC-2425 consists of all of the Employer's technical employees," including licensed practical nurses, but excluding office clerical employees, service and maintenance employees, professional employees, members of a religious order, guards, and supervisors, as defined by the Act. In its request for review, the Petitioner cites several NLRB and state labor relations board cases' in sup- port of its contention that licensed practical nurses may constitute a separate appropriate unit in hospitals and health care institutions. The Petitioner also argues that the licensed practical nurses herein enjoy precisely the same kind of distinctive community of interest which the Board found appropriate in Madeira, supra. The Petitioner adds that legislative history preceding the nonprofit hospital amendments supports its proposi- tion that a unit of licensed practical nurses is an appro- priate unit under the Act, as amended. Although the Employer argues that Madeira and related cases are distinguishable on their facts,' the short answer to the Petitioner's contention concerning cases such as Madeira, supra, is that these cases were decided before issues related to representation elections in nonprofit hospitals were discussed in Congress and before amendments pertaining thereto were added to the Act. The legislative history cited by the Petitioner9 calls upon the Board to use Board prece- 6 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 em- ployees. 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. See Nathan and Miriam Barnert d/b/a Barnert Memorial Hospital Center, 217 NLRB 775 (1975). 7 Drexel Home, 182 NLRB 1045, 1048 (1970), Extendicare of West Vir- ginia, Inc., d/b/a St Luke's Hospita4 203 NLRB 1232 (1973); Madeira Nursing Center, Inc, 203 NLRB 323 (1973), St Barnabas Hospital for Chronic Diseases, 26 N.Y S L.R.B 650, 654-656, Alpha Convalescent Home, Case D 63 J-1399, 54 LRRM 1354 (Mich, 1963). 8 Cf Parkvue Medical Center and General Hospital 183 NLRB 559 (1970); Jackson Manor Nursing Home, Inc and/or Isaac Mizrahi d/b/a Jackson Manor Nursing Home, Snapper Creek Nursing Home and Arch Creek Nursing Home, 194 NLRB 892 (1972); Clover Fork Medical Services, Inc, 200 NLRB 291 (1972); Leisure Hills Health Centers, Inc., 203 NLRB dent and traditionally relevant bargaining unit factors in making unit determinations in nonprofit hospital cases and mentions the Board's experience and exper- tise in reaching unit determinations. However, the legislative history also demonstrates congressional intent that the Board avoid undue prolif- eration of hospital bargaining units . The Senate and House committees cited three cases in their reports.10 In the first case,Four Seasons Nursing Cen- ter of Joliet," the Board dismissed a petition for a unit of two unskilled maintenance employees. In the second case, Woodland Park Hospital, Inc.," the Board de- termined that x-ray technicians did not, in and of them- selves, constitute an appropriate bargaining unit since the community of interest of this one category of tech- nicians was not substantially separate from that of em- ployees in other technical departments at the hospital. The Senate and House committees approved the results in these two cases without qualification. Such unquali- fied approval was withheld from the third case, Exten- dicare of West Virginia.13 The petitioner sought three separate units of licensed practical nurses, technical employees, and service and maintenance employees. The employer therein contended that all three units should be- combined and, in addition, all clerical em- ployees should be added to the unit. The Board ex- cluded the clerical employees, combined the technical- and service and maintenance employees into a single unit but created a separate unit for the licensed practi- cal nurses. Both congressional committees footnoted the Extendicare case saying "[b]y our reference to Ex- tendicare, we do not necessarily approve all of the hold- ings of that decision." The only explanation of the committees' footnoted qualification of Extendicare is found in the remarks of Senator Taft-to the Senate. Just before the bill (S. 3203), which became Public Law 93-360, was passed, Senator Taft, one of the bill's comanagers , said on the Senate floor:l4 Part of the unit findings in [Extendicarel it can be argued, was overly broad and not consistent .. [s]ometimes circumstances require that there be a number of bar- gaining units among non-supervisory employees, particularly where there is such a history in the area of a notable disparity of interests between employees in different job classifications. While the committee intends that the Board give due consideration to its admonition to avoid an undue proliferation of units in the health care industry it did not within-this framework intend to preclude the Board acting in the public interest from exercising its specialized experience and expert knowl- edge in determining appropriate bargaining units [120 Cong. Rec. S. 12104 (daily ed., July 10, 1974)]. 10 Senate Committee on Labor and Public Welfare Report 93-766, p 5 (April 2, 1974), and House Committee on Education and Labor Report 93-1051, pp 6-7 (May 20, 1974). 326 (1973) 11 208 NLRB 403 (1974) 9 Senator Williams, chairman of the Senate Subcommittee on Labor and 12 205 NLRB 888 (1973). Public Welfare and chairman of the Subcommittee on Labor, supporting the 13 203 NLRB 1232 (1973) conference report which is now law, stated on the Senate floor 14 120 Cong Rec. S. 7310-11 (May 7, 1974) ST. CATHERINE'S HOSPITAL OF DOMINICAN SISTERS OF KENOSHA with minimization of the number of bargaining units in health care institutions. Certainly, every effort should be made to prevent a proliferation of bargaining units in the health care field and this was one of the central issues leading to agreement on this legislation. Senator Taft had proposed legislation guaranteeing separate technical and clerical units.15 Thus his disa- greement with Extendicare seemingly was with the creation of a separate unit for the licensed practical nurses, which he regarded as not "consistent with minimization of the number of bargaining units in health care institutions." 16 This legislative history weighs against our finding appropriate a separate unit of licensed practical nurses or a fragment of a technical unit such as x-ray techni- cians, certainly at the outset of our application of the Act to hospitals and in the absence of any broad experi- ence in this area. Instead, we seek to avoid the undue proliferation of bargaining units which Congress in- tended the Board to avoid by finding in nonprofit hos- pital cases, as in other Board cases, that an appropriate unit may consist of employees who do not meet the strict requirements of the term "professional" em- ployee but whose work may be described as of a techni- cal nature. Such work, involving the use of independent judgment, requires the exercise of specialized training usually acquired in colleges or technical schools or through special courses and, in hospital cases, is often though not necessarily evidenced by fulfillment of cer- tification , licensing, and registration requirements, and the actual achievement of such certification, license, or registration." We believe that licensed practical nurses fall into this same category, since their job clas- sification requires at least 1 year of formal training beyond the high school level and, as their job title implies; requires certification or licensing by the State. Based upon these considerations, we find that the Em- ployer's technical employees (including x-ray techni- cians, certified surgical technicians, and patient care evaluation assistants who are accredited record techni- cians, and including the Employer's licensed practical nurses) constitute an appropriate unit for the purpose of collective bargaining in Case 30-RC-242518 A second issue to be decided in this case is whether business office clerical employees at the Employer's 15 See S . 2292 discussed in 120 Cong . Rec S. 6939 (May 2, 1974). 16 120 Cong . Rec S . 7310-11 (May 7, 1974). 17 See In . 6 herein. 18 Excluded from the foregoing unit are the following disputed classifica- tions which have no certification , licensing , or registration requirements and which involve employees who , we find, have more of a community of inter est with employees in the service and maintenance unit sought in Case 30-RC-2427: laboratory technicians I and II, respiratory therapy techni- cians, respiratory therapists , EEG technicians , and alchohsm counselors. See in 6 herein 789 hospital should be granted a separate bargaining unit as sought by the Petitioner in Case 30-RC-2426. As to this issue , we find in agreement with the Petitioner, and contrary to the Regional Director, that such a unit is an appropriate unit for collective-bargaining purposes. '9 Based upon our examination of the rec- ord, we find that the following classifications of em- ployees should be included in a separate office clerical unit, since such employees either perform "business" office functions or have more of a community of inter- est with business office employees than with employees in the other voting units established by this decision: cashier department employees, including cashiers and group leaders : patient accounting department em- ployees , including collection manager, patients ac- counts group leader, insurance billing clerks, and pa- tient relations coordinators; and Centrex and admitting department employees, including switchboard opera- tors, receptionists, admitting desk employees, and shift leaders.20 A remaining issue to be decided in this case is whether service and maintenance employees at the Em- ployer's hospital should be granted a separate bargain- ing unit as sought by the Petitioner in Case 30-RC-2427. As to this issue, we fmd in agreement with the Petitioner, and contrary to the Regional Di- rector, that such a unit is an appropriate unit for collec- tive-bargaining purposes.21 We include in such service and maintenance unit all employees22 who are not technicals, professionals of office clerical: viz labora- tory technicians I and II, respiratory therapy techni- 19 See Mercy Hospitals of Sacramento, Inc., 217 NLRB 787 (1975) 20 We do not include in the office clerical unit employees in the medical records departments , including the following classifications , medical re- cords admissions clerks, discharge -insurance clerks , file clerks, computer abstractors , librarian, statisticians, transcriptionists , and assistant to the di- rector of medical records. These employees work in an area adjacent to the physicians ' lounge . They spend a substantial amount of their time in the patient care area performing functions (albeit clerical in nature) directly related to the care and treatment of patients through contacts with those employees involved in the medical aspects of the hospital . Based upon these considerations, we find that these employees have more of a community of interest with employees in the service and maintenance unit sought by the Petitioner in Case 30-RC-2427. 21 See Newington Children's Hospital, 217 NLRB 793 (1975). 22 The parties stipulated that all employees who are employed in the following classifications are service and maintenance employees: x-ray secretary , x-ray stenographer, x-ray aide , renal technician , surgical techni- cians, nursing ward clerk -typist and secretary (ward clerk), nursing /central supply distribution clerk, nursing central supply work room aide, nursing surgery work room aide, nursing/surgery work room aide (I & II), surgery secretary , nursing in-service education department secretary , nursing ward messenger, laboratory aide (I & II), laboratory clerk typist, laboratory tech- nician, pharmacy technician, EKG technician, respiratory therapy trainee, anesthesia assistant, physical therapy aide , occupational therapy aide, nurses assistant /orderly The parties further stipulated that all employees who are employed in the following departments are service and mainte- nance employees : printing, pharmacy , kitchen, housekeeping , laundry- linen, maintenance, cafeteria , and auxiliary In the absence of a request for review by any party, we adopt the Regional Director's recommendation that Kitchen Group Leaders Gloria Anger and Ocie Permann and Maintenance Foreman Karl Peura be allowed to vote subject to challenge. .790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cians , respiratory therapist , EEG technicians and al- coholism counselors , and employees in the medical records and purchasing departments , including medi- cal records admission clerks, discharge-insurance clerks, file clerks, computer abstractors , librarian, sta- tisticians , transcriptionists , assistant to the director of medical records, store attendants , clerk typists, and inventory control coordinators.23 Based upon the foregoing , we find that the following groups of employees constitute units appropriate for the purpose of collective bargaining within the meaning of Section 9(c) of the Act: UNIT ,A All regular full-time and regular part-time techni- cal employees , including licensed practical nurses, x-ray technicians , certified surgical technicians, and patient care evaluation assistants who are ac- credited record technicians , but excluding office clerical employees , service and maintenance em- ployees, professional employees , members of a religious order, guards, and supervisors as defined by the Act, and employees excluded by stipulation of the parties, vis employees in the payroll and accounting,' electronic data processing , adminis- trative, and personnel departments. UNIT B All full-time and-regular part-time office clerical employees , including cashier department em- ployees (cashiers and group leaders ); patient ac- counting department employees (collection manager , patient accounts group leader , insurance billing clerks , and patient relations coordinators); and Centrex and admitting department employees (switchboard operators , receptionists , admitting desk employees , and shift leaders); but excluding licensed practical nurses, technical employees, service and maintenance employees, professional employees , members of a religious order, guards, and supervisors as defined by the Act, and em- ployees excluded by stipulation of the parties, viz employees in the payroll and accounting, elec- tronic data processing , administrative , and per- sonnel department. UNIT C All full-time and regular part-time service and maintenance employees , including employees clas- sified as x-ray secretary , x-ray stenographer, x-ray aide, renal technician , surgical technician , nursing 23 See fns. 18 and 20 herein See also Sisters of St Joseph of Peace, 217 NLRB 797 (1975). ward clerk -typist and secretary (ward clerk), nur- sing/central supply distribution clerk , nursing/- central supply work room aide , nursing/surgery work room aide, nursing/surgery work room aide (I & II), surgery secretary , nursing in -service edu- cation department secretary , nursing ward mes- senger, laboratory aide (I & II), laboratory clerk typist , laboratory technician , pharmacy techni- cian , EKG technician , respiratory therapy trainee, and anesthesia assistant, physical therapy aide, oc- cupational therapy aide , and nurses assistant/ord- erly; also including employees in the printing, pharmacy , kitchen, housekeeping, laundry -linen, maintenance , cafeteria , and auxiliary depart- ments, including laboratory -technicians I and II, respiratory therapy technicians, respiratory thera- pist, EKG technicians, and alcoholism counselors; and including employees in the medical records and purchasing department, viz medical records admission clerks, discharge-insurance clerks, file clerks, computer abstractions , librarian , statisti- cians, transcriptionists , assistant to the director of medical records , store attendants , clerk typists, and inventory control coordinators ; but excluding technical employees , professional employees, members of a religious order , guards, and supervi- sors as defined by the Act, and employees ex- cluded by stipulation of the parties, viz employees in the payroll and accounting , electronic data processing , administrative, and personnel depart- ments. [Direction of Elections24 omitted from publica- tion.]25 MEMBER KENNEDY , dissenting: I strenuously disagree with my colleagues ' reversal of the Regional Director 's decision in these con- solidated cases. In my opinion, the Regional director was correct in ordering a single election in a broad unit rather than three elections in three separate units. The Regional Director was correct in his conclusion that the congressional policy against a proliferation of bar- gaining units in the health care industry dictates that a single "wall-to-wall" unit is appropriate because the 24 Inasmuch as the election being directed are in broader units than the units petitioned for by the Petitioner , and because it is not clear from the record whether the Petitioner is willing to proceed to an election in such units , Petitioner may now wish to reconsider whether it wishes to proceed to an election in the units directed. If it does wish to so proceed, it will be necessary for the Petitioner to submit to the Regional Office an adequate showing of interest in such units Accordingly, we direct that the Petitioner advise the Regional Director as to whether or not it wishes to proceed to an election , and if it does desire to do so, and does not already have a sufficient showing of interest, submit its additional interest showing Failure to submit a sufficient additional interest showing or , alternatively , a request to withdraw petitions within 10 days from the date of the Decision will result in dismissal of the petitions 25 [Excelsior fn omitted from publication] ST CATHERINE'S HOSPITAL OF DOMINICAN SISTERS OF KENOSHA licensed practical nurses, the service and maintenance employees, the technical employees, and the office clerical employees all share a substantial community of interest. The decision of the majority to direct three elections is contrary to the congressional admonitions concerning units in the health care industry.2e The decisive factor in this case, in my opinion, is that the petitioning Union is seeking to represent practically all of the Employer's nonprofessional employees. The Union, however, filed three petitions seeking elections in three separate units. The Intervenor agreed with the Employer that a "wall-to-wall" hospitalwide unit is appropriate. I reiterate the view which I expressed in my dissent in Extendicare of West Virginia27 that we should not splinter "a comprehensive unit into separate units when there is a single unit involved and no prior history of collective bargaining." I think my colleagues err in splintering the comprehensive "wall-to-wall" unit into (1) a unit of business office clerical, (2) a unit of service and maintenance employees, and (3) a unit of technical employees. In my separate opinion in Mercy Hospitals of Sac- ramento, Inc., 217 NLRB 765, issued today, I agree that a unit of business office clerical employees is appropriate. But I do not subscribe to the view that business office clericals can be represented only on the basis of a separate unit. Indeed, as indicated earlier, where the petitioner seeks to represent all other non- professional employees and the intervenor argues for a "wall-to-wall" unit, as in this case, I think the legisla- tive history of the 1974 health care amendments pre- cludes our establishing an inflexible rule that business office clericals must be separately represented. The Board recently noted, correctly I believe, that principles governing clericals in production plants are not applicable to clericals in hospitals, because the op- erations are so dissimilar.28 As pointed out during the oral argument, every department of a hospital has sig- nificant clerical responsibilities. The admission clerk, who is employed in the business office, begins a medical record for each patient to which is added a description of every treatment and medication thereafter adminis- tered. I reject the motion that the interests of the busi- ness office clericals are so distinct and so diverse that policy considerations require that they be represented in a separate unit. Where all parties agree to their inclu- 26 The majority opinion notes that I dissented from the order granting oral argument in this and other health care cases I predicated that dissent upon the opinion that the legislative history and the comprehensive briefs which have been filed in these and other related cases adequately present the issues. In my view, the predictable delay in the resolution of these cases was undersirable for the employees, the unions, and the employers. 27 203 NLRB 1232 (1973) 2i National Medical Hospitals, Inc., of San Diego, d/b/a Chico Com- munity Memorial Hospital, 215 NLRB No. 155 (1974). While the Board is today overruling portions of the Chico decision in the Mercy Hospitals care, I think the observation remains valid that clericals in hospitals are dissimilar from clericals in production plants. 791 sion with other nonprofessional employees in a com- prehensive unit , I would honor such agreement and include them in the unit . 29 Similarly , where a peti- tioner seeks, as in the instant case , to represent both the business office clericals and the other nonprofessional employees, and the other parties agree that a single unit of nonprofessional employees including business office clericals is appropriate, I would find that single unit to be appropriate. For the reasons stated in the dissent in Barnert Memorial Hospital Center, 217 NLRB 775 , issued today, I do not believe that a unit of technical em- ployees, whether or not they are licensed , certified, or registered, should be found appropriate . In my view, such technical employees should be included in the service and maintenance unit." The new policy of automatically excluding technical employees from the larger units in the health care field is directly contrary to the policy followed by the Board in all other industries since the Sheffield decision."' Having been admonished by Congress to avoid undue proliferation of units in this industry, I do not under- stand why my colleagues automatically exclude techni- cal employees in this industry when the Board does not do so in any other industry . As in the Barnert Memorial Hospital Center case, supra, the similarity of wages, fringe benefits , hours, and working conditions compels the conclusion that we should include the technical employees in a single unit with service and mainte- nance employees. And since Petitioner has made no showing on this record that it has a special interest in representing the clerical employees separately , I would include the business office clericals in a unit with tech- nical employees , service employees, and maintenance employees. The decision of the majority herein is an "undue proliferation of units" which Congress admonished this Board to avoid. MEMBER PENELLO , dissenting in part: I agree with my colleagues in the majority that a unit of business office clericals is appropriate herein and would therefore direct an election in such a unit. Based on the dissenting opinion in Barnert Memorial Hospital Center, 217 NLRB 775, issued this day, I disagree, 29 While the Board does not include office clericals in a production and maintenance unit in an industrial plant, the Board normally includes office clericals in comprehensive units in retail establishments. See Taunton Sup- ply Corp and Pierce Hardware d/b/a Taunton Supply Corp., 137 NLRB 221 (1962), Interstate Co., Glass House Restaurants, Indiana Toll Road, 125 NLRB 101 (1959); Wickes Furniture, a Division of the Wicker Corporation, 201 NLRB 610 (1973) In wholesale establishments, office clericals may be included only by agreement of the parties See Interstate Supply Company, 117 NLRB 1062 (1957); Charles Bruning Company, 126 NLRB 140 (1960) 30 I agree with my colleagues that the legislative history weighs heavily against our finding appropriate a separate unit of licensed practical nurses 31 The Sheffield Corporation, 134 NLRB 1101 (1961) 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however , with my colleagues ' decision to fragment the service and maintenance unit by directing an election in a separate unit to technical employees , including LPN's. Included in the technical unit found to be appropri- ate by my colleagues in the majority are those em- ployees who are licensed , certified, or registered, and those employees who are involved in functions requir- ing a sufficiently consistent exercise of independent judgment . As stated in my concurring opinion in Mount Airy Foundation , d/b/a Mount Airy Psychiatric Center, 217 NLRB 802, issued this day, my under- standing of the congressional mandate to avoid undue proliferation of bargaining units in the health care in- dustry requires this Board to find that all nonprofes- sionals in a health care facility , with the exception of business office clericals , must be included in one unit for collective-bargaining purposes. My colleagues concede that a unit consisting solely of LPN 's is inappropriate . However, they attempt to justify their separate unit finding for technical em- ployees, including LPN's, on what I believe to be a "strained" interpretation of the legislative history. In my judgment , the legislative history clearly demon- strates that the overriding concern of Congress was not simply, as my colleagues in the majority would have it, to avoid the "splintering off" of LPN 's from other technical employees, but rather was to prevent the un- due proliferation of bargaining units which would re- sult if technical employees , including LPN's, were found to constitute a separate appropriate unit. Ac- cordingly , I would direct an election herein in a service and maintenance unit including all technical em- ployees.