Taylor Hospital

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1188 (N.L.R.B. 1975)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor Hospital and Local 1, United Independent
Union, N.F.I.U., Petitioner. Case 4-RC-11194
June 30, 1975
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, 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 James C.
Peck, Jr. On November 15, 1974, the Regional
Director for Region 4 issued a Decision and
Direction of Election in the above-entitled proceed-
ing, in which he found that the Employer's licensed
practical nurses constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act. Thereafter, the Employer,
in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, filed a request for review of the
decision of the Regional Director on the ground that
he erred in directing an election in a unit of licensed
practical nurses. By telegraphic order dated March
10, 1975, the Board granted the Employer's request
for review and stayed the election pending decision
on review. Thereafter, the Employer filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case , with respect to the issues under review,
including the brief, and makes the following find-
ings:
The Employer is a nonprofit hospital engaged in
health care in Ridley Park, Pennsylvania. The
hospital has 123 beds. It is administratively organ-
ized into two general divisions: direct health care
services and support services.
The Petitioner originally sought to represent a unit
of licensed practical nurses and employees in the
respiratory therapy department, excluding all other
employees and supervisors as defined in the Act. At
the hearing the Petitioner amended its petition and
sought a unit restricted to licensed practical nurses,
excluding all other employees, supervisors, and
guards as defined in the Act.'
The hospital has subcontracted the inhalation therapy work.
z At the hearing , counsel for Laborers Local Umon 1319, Laborers
International Union of North Amenca, AFL-CIO, made an appearance
and stated that Local 1319 had been certified by the Pennsylvania Labor
Relations Board in Case Para-R-4034-E as the exclusive representative for
218 NLRB No. 179
The Employer's position is that the unit requested
by the Petitioner and subsequently found appropri-
ate by the Regional Director is inappropriate for
collective bargaining as it is based on extent of
organization, improperly fractionalizes a unit of
residual employees, and would cause an unnecessary
proliferation of units since all of the remaining
unrepresented employees in the direct health care
services division have a community of interest. The
Employer contends that the only appropriate unit is
one which would include all unrepresented nonpro-
fessional employees employed by the Employer in
the direct health care services division,2 including
licensed practical nurses, laboratory and x-ray
technicians, radiology escort, sterilization aide, unit
receptionists, typists, and medical secretaries, exclud-
ing nurses aides, orderlies, office clericals, bookkeep-
ers, dietary, housekeeping, and maintenance employ-
ees, professionals, including registered and graduate
nurses, guards, and supervisors as defined in the Act.
The support services division is composed of
administrative personnel for the most part and
includes employees engaged in fiscal matters in the
controller's division, and personnel engaged in
purchasing, medical records, personnel, dietary,
housekeeping, and maintenance matters generally.
The dietary, housekeeping, and maintenance person-
nel are in the Laborers unit. The direct health care
services division includes registered nurses, graduate
nurses, pharmacists, anesthetists, cardiologists, thera-
pists, nurses aides, licensed practical nurses, order-
lies, laboratory and x-ray technicians, ,a blood bank
technician, electrocardiogram technicians, a medical-
surgical technician, a radiology escort, a sterilization
aide, unit receptionists, recording clerks, medical
secretaries, and typists. The nurses aides and order-
lies are in the Laborers unit.
We recently issued eight lead cases establishing
guidelines as to units of employees appropriate for
collective bargaining in the private health care field.
These cases arose following the 1974 amendments to
the Act which expanded its coverage to nonprofit
hospitals and placed under the Board's statutory
jurisdiction all private health care institutions.
In one of those cases, St. Catherine's Hospital of
Dominican Sisters of Kenosha, Wisconsin, Inc., 217
NLRB No. 123 (1975), the Board ruled that a
bargaining unit consisting only of licensed practical
nurses is not appropriate. The licensed practical
nurses were placed in a unit of technical employees,
all employees of the Employer in the dietary , maintenance , housekeeping,
central supply, and orderly departments and nurses aides, excluding
manager level employees , supervisors , first-level supervisors, confidential
employees, and guards as defined in the Act.
TAYLOR HOSPITAL 1189
and an election was directed. In doing so the Board
stated that the:
... legislative history weighs against our ford-
ing appropriate a separate unit of licensed
practical nurses or a fragment of a technical unit
such as x-ray technicians, certainly at the outset
of our application of the Act to hospitals and in
the absence of any broad experience in this area.
Instead, we seek to avoid the undue proliferation
of bargaining units which Congress intended the
Board to avoid by fording in nonprofit hospital
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"
employee but whose work may be described as of
a technical 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 certification, 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 ... .
Similarly, in another of those cases, Nathan and
Miriam Barnert Memorial Hospital Association d/b/a
Barnert Memorial Hospital Center, 217 NLRB No.
132 (1975) the Board found appropriate for collective
bargaining a unit of technical employees including
licensed practical nurses separate from service and
maintenance employees.3 In so doing, it stated:
... the Board has long held that a unit of all
technical employees in the industrial sphere is an
appropriate unit. From early on, the Board
recognized the differing interests of technical
employees because of their distinctive training
and experience and functions. [Footnote omitted.]
In addition, in St. Catherine's Hospital, supra;
Mercy Hospitals of Sacramento, Inc., 217 NLRB No.
131 (1975); Newington Children's Hospital, supra;
Sisters of St. Joseph of Peace, 217 NLRB No. 135
(1975); and Mount Airy Foundation 217 NLRB No.
3 In accord : Newington Children's Hospital, 217 NLRB No. 134 (1975)
4 Excluded from the foregoing unit are the following disputed classifica-
tions which the record shows have neither certification, licensing, or
registration requirements, nor the requirement that employees in such
classifications exercise independent judgment on a consistent basis:
electrocardiogram technician , sterilization aide, and radiology escort As the
record indicates that the position of medical-surgical technician was not
occupied at the time of the hearing, conclusions as to the actual functions
and educational background required for this position are purely specula-
tive. Accordingly, we will adhere to the Board 's policy in refusing to pass on
such open classifications . See Trans World Airlines, Inc., 211 NLRB 733
(1974).
5 Inasmuch as the election being directed is in a broader unit than the
137 (1975), the Board held that clerical employees in
business offices of health care facilities are appropri-
ately placed in a separate bargaining unit, not a part
of a service and maintenance or other nonprofession-
al employee group. Other clericals in hospital wards
and elsewhere are appropriately grouped in a service
and maintenance unit.
Applying the principles set forth in these cases to
the facts herein, we find that the Employer's
technical employees, including licensed practical
nurses, laboratory technicians, x-ray technicians, and
blood bank technicians, constitute an appropriate
unit for the purpose of collective bargaining, as based
on our review of the record herein these employees
are engaged in work of a technical nature involving
the use of independent judgment or requiring the
exercise of specialized training, skills, education, and
job requirements, evidenced by the fact that such
employees are certified, registered, or licensed.4
Based upon the foregoing, we ford that the
following group of employees constitutes a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(c) of the Act:
All regular full-time and regular part-time techni-
cal employees, including licensed practical nurses,
laboratory technicians, x-ray technicians, blood
bank technicians, but excluding electrocardio-
gram` technicians, sterilization aides, radiology
escorts, office clerical employees, unit reception-
ists, typists, medical secretaries, bookkeepers,
dietary, housekeeping, and maintenance employ-
ees, nurses aides, orderlies, central supply depart-
ment employees, professionals, guards, and super-
visors as defined in the Act.
[Direction of Elections omitted from publication.]6
MEMBER PENELLO, concurring in part and dissenting
in part:
I agree with my colleagues that clerical employees
in business offices of health care facilities are
appropriately placed in a separate bargaining unit.
However, for the reasons set forth in the dissenting
opinion in Barnert Memorial Hospital Center, supra,
and Newintgon Children's Hospital, supra, in my
partial dissent in St. Catherine's Hospital, supra, and
unit 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
unit, Petitioner may now wish to reconsider whether it wishes to proceed to
an election in the unit 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 unit. 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 petition within 10 days from the date of this Decision will result in
dismissal of the petition.
6 [Excelsior fn. omitted from publication.]
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in my concurring opinion in Mount Airy Foundation,
supra, my understanding of the congressional man-
date to avoid undue proliferation of bargaining units
in the health care industry requires this Board to
include all nonprofessionals in a health care facility,
with the exception of business office clericals, in one
unit for collective-bargaining purposes.
As I said in my partial dissent in St. Catherine's
Hospital, supra:
My colleagues concede that a unit consisting
solely of LPN's is inappropriate . However, they
attempt to justify their separate unit finding for
technical employees , including LPN's on what I
believe to be a "strained" interpretation of the
legislative history. In my judgment , the legislative
history clearly demonstrates 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 techni-
cal employees, but rather was to prevent the
undue proliferation of bargaining units which
would result if technical employees , including
LPN's, were found to constitute a separate
appropriate unit.
Finally, as was stated in the dissenting opinion in
Newington Children 's Hospital, supra:
The majority position is directly contrary to the
policy followed by the Board since The Sheffield
Corporation, where it was announced that the
Board was abandoning its practice of automat-
ically excluding all technical employees from
other units whenever their unit placement is in
issue. In Sheffield, the Board decided no longer to
use an "automatic placement formula ," but to
give effective weight to the overriding considera-
tion 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, contact and/or
interchange with other employees , similarity of
working conditions, type of industry, organization
of plant , whether the technical employees work in
separately situated and separately controlled
areas, and whether any union seeks to represent
technical employees separately."
In the instant case , our colleagues ignore the
Sheffield precedent and apply a mechanical rule
of excluding "licensed, certified , or registered"
employees from hospital service and maintenance
units. [Footnotes omitted.]
For these reasons, I would include the technical
employees in an appropriate nonprofessional unit.