St. Luke's Hospital

National Labor Relations Board - Board Decisions

Jun 6, 1973

203 N.L.R.B. 1232 (N.L.R.B. 1973)

1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Extendicare of West Virginia , Inc., d/b/a St . Luke's
Hospital and Local 1199-W. Va., National Union of
Hospital and Nursing Home Employees, Retail,
Wholesale and Department Store Union , AFL-CIO,
Petitioner. Cases 9-RC-9709, 9-RC-97 10, and 9-
RC-9711
June 6, 1973
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended , a hearing
was held before Hearing Officer Andrew L. Lang of
the National Labor Relations Board. Following the
close of the hearing , the Regional Director for Region
9 transferred this case to the Board for decision.
Thereafter , the Employer and the Petitioner each filed
briefs and supplemental 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 proceeding, the
Board finds:
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 herein. The
parties stipulated that the Employer , which operates
an acute care general hospital for profit in Bluefield,
West Virginia, and employs 140 people , has a gross
annual income in excess of $500,000 per year, and
during the past year has purchased supplies directly
from outside the State of West Virginia valued in
excess of $50,000. While the Employer questioned the
Board's jurisdiction over it, it is clear that the Board's
jurisdictional requirements have been satisfied?
2. The labor organization involved claims to repre-
sent certain employees of the Employer. While the
Employer questioned the Petitioner 's status as a labor
organization and its ability to adequately represent
the employees in the units sought , the record discloses
that the Petitioner admits employees to membership
and represents employees concerning wages , hours,
and working conditions . In addition , the Petitioner is
actively engaged in organizational activities through-
out West Virginia and surrounding States.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
' The Employer has requested oral argument . This request is hereby denied
as the record and the briefs adequately set forth the issues and the positions
of the parties.
2 Butte Medical Properties, d/bla Medical Center Hospital, 168 N LRB 266
2(6) and (7) of the Act.
4. The Petitioner seeks to represent three separate
units of the Employer's employees (licensed practical
nurses, technical employees, and service and mainte-
nance employees). The Employer, however, contends
that the only appropriate unit would be an all-em-
ployee unit containing the employees sought sepa-
rately by the Petitioner. The Employer further
contends that certain employees sought to be exclud-
ed by the Petitioner as office clericals should be in-
cluded in the all-employee unit.
The 23 licensed practical nurses (LPN's) employed
by the Employer work in the nursing department and
are supervised by registered nurses (RN's), who are in
charge on the various shifts, or by the shift supervisor.
LPN's requisition and administer medicines and
drugs, chart patients, and sometimes confer with doc-
tors. The duties performed by the LPN' s are not per-
formed by any of the 34 nurses aides and 6 orderlies
employed by the Employer (whom the Petition seeks
to include in a service and maintenance unit). The
record also establishes that while the LPN's are paid
hourly, their wage rate is 40 percent higher than the
rate for nurses aides or orderlies. The LPN's possess
a high school diploma and, in addition, must com-
plete 1 year of formal training and be licensed by the
State of West Virginia. No such requirements are im-
posed on nurses aides and orderlies or any of the other
categories of employees sought to be represented in
the service and maintenance unit. Thus the record
shows that the LPN's have a community of interest
separate and distinct from the other employees and
we therefore find appropriate a separate unit of LPN's
as requested by the Petitioner.3
The Employer employs four X-ray technicians, two
laboratory technicians, and an inhalation therapist.
As noted above, the Petitioner seeks a unit of techni-
cal employees which would include these employees,
while the Employer would include them in an all-
employee unit. The Petitioner also seeks to represent
a unit of approximately 62 service and maintenance
employees including nurses aides, orderlies, house-
keepers, dietary employees, and maintenance employ-
ees. The Employer again would include these'
employees in an all-employee unit. Alternatively, the
Petitioner indicated a willingness to represent a single
unit of technical employees and service and mainte-
nance employees, as well as the separate unit of LPN's
discussed above.
The record discloses that the X-ray technicians take
and develop X-rays and transcribe physicians' find-
See Madeira Nursing Center, Inc, 203 NLRB No 42, where we decided
not to preclude exclusion of LPN's from a unit of nursing home employees
when the LPN 's enjoyed a substantial community of interest among them-
selves which was separate and distinct from the interests shared with other
employees of the nursing home
203 NLRB No. 170
ST. LUKE'S HOSPITAL
ings . Their skills are developed by attending a 2-year
postsecondary school course in radiology. The labora-
tory technicians perform laboratory-associated work
such as blood and urine tests. In addition to possess-
ing a high school diploma, they must complete a 1-
year formal education program. The lone inhalation
therapist employed at the hospital administers oxy-
gen, operates oxygen tanks, and gives breathing treat-
ments. She is required to possess a high school
diploma or its equivalent and to complete 6 months
of formal training. Thus, in view of the training re-
ceived and the work performed by the X-ray techni-
cians, laboratory technicians, and inhalation
therapist, we find that they are technical employees.
We also note, however, that these technical employees
work under conditions substantially similar to those
of the service and maintenance employees. For exam-
ple, all such employees are-paid on an hourly basis,,
punch a timeclock, and share the same fringe benefits.
Additionally, they share a common dining room and
generally intermingle in their work. The laboratory
technicians perform at least some of their work out-
side the laboratory, and when in the laboratory they
also have contact with the service and maintenance
employees. The inhalation therapist spends most of
her time on the hospital floors. She is under the super-
vision of the nursing department, which also supervis-
es some of the service and maintenance people (nurses
aides and orderlies). Based upon the above facts, we
find that the technical employees and service and
maintenance employees share a substantial commu-
nity of interest.
We further note that the Petitioner primarily seeks
to represent in separate units a total of approximately
62 service and maintenance employees and only 7
technical employees. In this situation, given the ap-
propriateness of a separate unit of LPN's where the
technical employees and service and maintenance
,employees share a community of interest, and the
technical employees are relatively few in number, a
finding that two separate units are appropriate for
bargaining would create unwarranted unit fragmenta-
tion. Accordingly, and as the Petitioner has indicated
a willingness to represent the technical employees and
service and maintenance employees in one unit, we
find that the technical employees service and mainte-
nance employees together constitute a unit appropri-
ate for bargaining.
The units requested by, the Petitioner would exclude
office clericals, among others. Thus, it would exclude
employees in Employer's medical records department
and business office. The Employer, however, con-
tends that employees in those departments share a
community of interest with the service and mainte-
nance employees and should be included in the unit.
1233
The medical records section is located in a building
separate from the main hospital building and, while
the record indicates that the employees in the section
do have contact with other employees, they spend 90
percent of their time in the medical records office.
Their duties include preparing medical records, sort-
ing, filing and retrieving old charts, organizing final
charts, and compiling statistics. The business office
employees, who are located in the main hospital
building, spend only minimal time outside the busi-
ness office. Their duties include switchboard opera-
tions, cashier and billing functions, and the handling
of admissions. As the employees in both sections are
essentially office workers who have little contact with
other employees, they will be excluded from the tech-
nical, service and maintenance unit .4
Accordingly, upon the entire record, we find that
the following employees of the Employer constitute
units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All service and maintenance employees in-
cluding nurses aides, orderlies, housekeeping em-
ployees, dietary employees, and maintenance
employees, and all technical employees including
X-ray technicians, laboratory technicians, and
inhalation therapist; but excluding all office cler-
ical employees, licensed practical nurses , regis-
tered nurses, professional employees, guards and
supervisors as defined in the Act.
All licensed practical nurses, but excluding ser-
vice and maintenance employees, office clerical
employees, technical employees, registered nurs-
es, professional employees, guards and supervi-
sors as defined in the Act.
[Direction of Elections and Excelsior footnote om-
itted from publication.]
MEMBER KENNEDY , dissenting:
Contrary to my colleagues, I would find an overall
unit of all employees sought to be represented by the
Petitioner to be the appropriate unit, and I would
direct a single election.
The Petitioner seeks to represent all employees ex-
cept office clericals and the standard exclusions. This
constitutes an appropriate overall unit.' The majority,
however, permits the Petitioner to divide this compre-
hensive unit into two units, one consisting of the
LPN's and the other consisting of the service and
maintenance employees, X-ray and laboratory techni-
cians , and the inhalation therapist. I know of no pre-
cedent for splintering a comprehensive unit into
separate units when there is a single union involved
4 The Swanholm, an Operation of the Martin Luther Foundation, Inc., 186
NLRB 45.
5 Butte Medical Properties, d/b/a Medical Center Hospital, supra.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and no prior history of collective bargaining.6 The
basis for this action is the asserted separate and dis-
tinct interest of the LPN's from the other employees.
Such expressions as "distinct and separate interest"
are words of art of a mere conclusionary assertion.
Factually, there appears little to distinguish the duties
and functions of the LPN's in this case from those in
other cases in which the Board included the LPN's in
an overall unit sought by a union even though their
inclusion may have been opposed by the employer.7
They work under the same supervision and in close
contact with the aides and orderlies. The educational
6 Seemingly, this precedent would permit a union seeking to represent the
production and maintenance employees to obtain one certification for the
production employees and another for the maintenance employees , a union
seeking to represent all the employees of a retail food store to obtain a
certification for the meat department employees and another for the remain-
der of the store employees. etc.
7 Leisure Hill Health Centers, Inc., 203 NLRB No 46.
and formal training for an LPN is less than that re-
quired of some of the employees (X-ray technicians)
in the other unit. Seemingly, the quantum of the
LPN's mutuality of interest increases or decreases de-
pending on the desires of the union as to their inclu-
sion or exclusion.
Further, I cannot see what useful purpose is accom-
plished by establishing the LPN's as a separate unit.
There is no showing that the Petitioner has a special
interest in the LPN's apart from other employees or
that it has devoted itself to serving their special inter-
est by historically representing them on the basis of a
separate unit. Under such circumstances, I believe
that the fragmentation of the comprehensive unit into
two separate units for the purpose of representation
by the Petitioner would serve only to impede collec-
tive bargaining and is not in the best interest of all
employees involved.'
$ See F N Burt Company, Inc, 130 NLRB 1115.