The Mental Health and Family Services Center

National Labor Relations Board - Board Decisions

Jul 29, 1976

225 N.L.R.B. 780 (N.L.R.B. 1976)

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Clark County Mental Health Center, d/b/a The
Mental Health and Family Services Center and Of-
fice & Professional Employees Union , Local No. 11,
AFL-CIO, Petitioner . Case 36-RC-3577
July 29, 1976
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On January 9, 1976, the Regional Director for Re-
gion 19 issued his Decision and Direction of Elec-
tions in the above-entitled proceeding in which he
directed elections among three groups of employees
at the Employer's Vancouver, Washington, facility:
(A) "all professional employees," including psychol-
ogy interns,' (B) "all nonprofessional clinical em-
ployees," which includes, among others, three clini-
cal assistants hired pursuant to the Federal Compre-
hensive Employment and Training Act of 1973
(referred to herein as CETA employees), and (C) "all
office clerical employees." In his decision the Re-
gional Director permitted the sole psychiatrist em-
ployed on the date of the hearing to vote subject to
challenge in the professional voting group.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Reg-
ulations, Series 8, as amended, the Employer filed a
timely request for review on the grounds, inter alia,
that in including the psychology interns in the pro-
fessional voting group, permitting the psychiatrist to
vote under challenge, and including the CETA em-
ployees in the nonprofessional voting group rather
than finding them ineligible the Regional Director
departed from officially reported Board precedent.
By telegraphic order dated February 11, 1976, the
National Labor Relations Board granted the Em-
ployer's request for review and stayed the elections
pending decision on review. Thereafter, the Employ-
er filed a timely brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the Employer's brief on review, with
respect to the issues under review, and makes the
following findings:
Psychology Interns: The Employer provides psy-
chological treatment for individuals in the Vancou-
ver, Washington, area and on its professional staff
employs psychologists, psychiatric social workers, a
mental health specialist, and psychology interns and
utilizes the services of one or more psychiatrists. The
Regional Director included the three psychology in-
terns in the professional voting group, as requested
by the Petitioner, relying largely on the definition of
professional employees in Section 2(12)(b)(ii) of the
Act which includes persons who have "completed"
their studies and who perform related work under the
supervision of other professional employees. The
Employer urges their exclusion on the ground that
the interns are enrolled in degree programs and their
employment is part of the requirement for their de-
grees. The Employer asserts that the Board has ex-
cluded such students, finding their employment inci-
dental to their educational objectives. We find merit
in the Employer's contention.
As found by the Regional Director, the record es-
tablishes that the three interns are candidates for Ph.
D. degrees and are each serving a 1-year internship
in clinical psychology which commenced on or about
September 1, 1975, and which is a prerequisite to ob-
taining that degree. The interns perform duties simi-
lar to those of other members of the Employer's pro-
fessional staff but are subject to closer supervision.
In this regard, the Employer testified that the interns'
supervisors perform a "teaching function" vis-a-vis
the interns 2 and that the supervisors' evaluations of
the interns' performance are forwarded to the in-
terns' respective schools. The interns' evaluations dif-
fer from those of clinical assistants and therapy per-
sonnel. The interns receive a monthly stipend
whereas the Employer's staff psychologists receive a
substantially greater salary. The record reveals that,
upon the completion of their internships, at least two
of the interns must return to their schools to satisfy
other requirements for their degrees. There is no evi-
dence that the interns intend to establish an employ-
ment relationship with the Employer upon obtaining
their doctoral degrees.
We conclude, on the basis of the facts herein, that
although the psychology interns perform functions
similar to those of other staff personnel the purpose
of their relationship with the Employer is essentially
an educational one, as their internship is necessary
for them to achieve their academic goals. Thus, we
find that the interns do not fall within the ambit of
Section 2(12) of the Act. Rather, we view their status
as being analogous to that of graduate teaching and
research assistants whom the Board has excluded
from professional faculty units at colleges and uni-
1 In the event a majority of the professional employees vote for inclusion 2 The record shows that the interns work under all available supervisors
in the same unit as the nonprofessional employees, they will be so included on a rotating basis
225 NLRB No. 105
THE MENTAL HEALTH AND FAMILY SERVICES CENTER
versities.3 We conclude therefore that the psychology
interns are primarily students and we shall exclude
them from the professional voting group.4
Psychiatrist: On the date of the hearing a single
psychiatrist was employed as part of the Employer's
professional staff. However, the Regional Director
found and the record shows that his continued em-
ployment was in doubt as of that time and that the
Employer contemplated obtaining the services of one
or more psychiatrists on a contract basis with a firm
of psychiatrists.
In its brief, the Employer states that the psychia-
trist employed as of the hearing date terminated his
employment in December 1975 and since that time it
has contracted with psychiatrists who are not its em-
ployees. The Petitioner seeks to represent in its re-
quested professional unit any psychiatrists who are
employed on a regular basis; it does not seek to rep-
resent psychiatrists who may be employed on a con-
tract basis. The Regional Director in his decision
concluded that any psychiatrists working at the time
of the election be permitted to vote under challenge.
In the circumstances, as the Employer's previous
psychiatrist has apparently terminated his employ-
ment and as there is no record testimony regarding
the employment status of any psychiatrists being uti-
lized by the Employer, we affirm the Regional
Director's conclusion that any psychiatrists em-
ployed on the date of the election be permitted to
vote under the challenge procedure.
CETA employees: As previously indicated, the Em-
ployer employs three individuals as clinical assistants
under a federally funded program designed to foster
training and employment of unemployed and under-
employed disadvantaged persons. The Regional Di-
rector included these individuals in the requested
nonprofessional unit, finding insufficient evidence
upon which to conclude they have a community of
interest separate and apart from other nonprofes-
sional clinical employees. The Employer urges that
their exclusion is mandated under Board precedent
which holds that persons similarly employed in Gov-
ernment programs and whose tenure is controlled by
the Government are not included in units with other
employees.'
We agree that the CETA employees should be ex-
cluded from the nonprofessional voting group. Al-
though the individuals employed under the CETA
3 Adelphi University, 195 NLRB 639 (1972), College of Pharmaceutical Sci-
ences in the City of New York, 197 NLRB 959 (1972)
Cedars-Sinai Medical Center, 223 NLRB 251 (1976), The Buffalo General
Hospital, 224 NLRB No 17 (1976).
5 Roane-Anderson Company, 95 NLRB 1501 (1951)
781
program apply directly to, and are hired by, the Em-
ployer, the record establishes that CETA sets the eli-
gibility standards for selection of such persons and
gives final approval of any employees hired under its
auspices only after a conference between the Em-
ployer and the local CETA coordinator. The record
reveals that CETA maintains a list of categories of
persons to whom participating employers must give
hiring preference, e.g., minorities, veterans, exoffend-
ers, etc. CETA employees are paid by the Employer
with Federal funds disbursed by the local county
CETA administration. CETA funding is handled on
a contract basis for a specific period of time. The
record reveals that the funding for one CETA em-
ployee was scheduled to end in June or July 1976.
There is no evidence that CETA funding for any of
the individuals currently employed under the pro-
gram will be renewed or that such persons will be
retained in the Employer's employ in the event fund-
ing is terminated.
The Employer makes withholdings for tax purpos-
es and pays social security for the CETA employees.
They receive the same benefits as other employees
but can utilize a special grievance procedure under
the CETA program once they have exhausted the
Employer's grievance machinery. This grievance pro-
cedure, not available to the Employer's regular em-
ployees, provides for several appeals and ultimately a
formal appeal to the United States Department of
Labor which could result in a determination regard-
ing the CETA employees' status adverse to the Em-
ployer.
On the basis of the record facts regarding the indi-
viduals hired under the CETA program, particularly
their access to a special grievance procedure and the
limited duration of the funding for them, we con-
clude that the individuals employed under the CETA
program do not share a sufficient community of in-
terest with other nonprofessional employees to war-
rant their inclusion in that voting group and we here-
by exclude them.6
Accordingly, we remand the case to the Regional
Director for the purpose of conducting the elections
pursuant to his decision as modified herein, except
that the payroll period for determining eligibility
shall be that ending immediately before the date of
this Decision on Review. [Excelsior footnote omitted
from publication.]
6 Member Jenkins would affirm the Regional Director's inclusion of these
employees in the voting group , for there is no record evidence that, as a
result of the facts set forth above, these particular employees have a differ-
ent set of working conditions or community of interest apart from the other
employees