Newington Children's Hospital

NEWINGTON CHILDREN'S HOSPITAL 793 Newington Children's Hospital amdDistrict 1199, Na- tional Union of Hospital and Health Care Em- ployees, RWDSU, AFL-CIO,' Petitioner. Case 1-RC-13524 May 5, 1975 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Joseph A. Stupak of the National Labor Relations Board. Following the chose of hearing, the Regional Director for Region 1 transferred this case to the Board for decision. Briefs were filed by the Employer and the Petitioner. 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. Member Kennedy dissented from the grant of oral argument. Oral arguments were heard on January 27, 1975. Briefs amici curiae were filed by interested parties and have been carefully considered by the Board. The Board, having duly considered the Hearing Of- ficer's rulings made at the hearing, finds they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case,' including the parties' briefs, the oral arguments, and the amici briefs, the Board finds: 1. The Employer is a general pediatric hospital, with its sole place of business in Newington, Connecticut, where it is engaged in the operation of a private, non- profit, health care facility. The parties have stipulated and we find that the Employer's gross annual revenue exceeds $250,000, that the Employer annually receives goods from outside the State of Connecticut having an annual value exceeding $50,000, and that the Employer is engaged in commerce within the meaning of the Act. We further find that it will effectuate the purposes of the Act to assert jurisdiction herein. 1 It was agreed at the hearing that Petitioner's correct name is that which appears in the petition Such name differs slightly from the name appearing as correct in the transcript, which we assume to be a transcript error. 2 At the hearing, a stipulation entered into by the Employer and the Petitioner provided for the introduction, as a joint exhibit, of a transcript of the hearing before the State Labor Relations Board in Hartford, Connecti- cut This hearing was based on a similar petition filed by the Petitioner with the State Labor Relations Board seeking a unit similar to that sought in the above-entitled case. Such petition was filed with the State before the effec- tive date of the 1974 amendment to the Act and, apparently, has since been withdrawn. 2. The parties stipulated and we find that the Peti- tioner is a labor organization within the meaning of the National Labor Relations Act. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and (2)(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of service and maintenance employees including nurses aides, housekeeping, dietary, maintenance, engineering, pho- tography, orthotic, and prosthetic employees, but ex- cluding supervisors and technical, clerical, and profes- sional employees. In support of its position the Petitioner contends that the service and maintenance employees sought in the petition have different wage rates, working hours, skills, uniforms, educational re- quirements, and other working conditions separate and apart from those enjoyed by professional, technical, and clerical employees it seeks to exclude from the unit. The Employer disagrees, contending that the appro- priate bargaining unit should include, in addition to those employee classifications sought in the petition, all licensed practical nurses (hereinafter referred as LPN's), additional technical classifications, and other employees who perform functions related to those of unit personnel. In support of its position, the Employer argues that the petitioned-for unit would lead to frag- mentation of the Employer's work force and would create a multiplicity of bargaining units. The Employer also contends that Petitioner seeks a unit which lacks a community of interest as demonstrated by the fact that the employees sought are physically located all over the hospital's main building, are administratively assigned to 13 different departments, and vary as to function, skill, pay grade, and hours. The Employer argues further that the hospital is a unique institution which is responsible for the total rehabilitation of a child, requiring that all personnel work together and, consequently, be represented in a single unit. The service and maintenance employees in the unit sought by Petitioner perform primarily manual and routine job functions. Accordingly, the Employer re- quires only minimal qualifications for employment in these positions. Service and maintenance employees are generally paid less than the employees excluded by Petitioner and interchange is extremely limited due to the educational and licensing requirements of the ex- cluded positions. In Barnert Memorial Hospital Center,' issued this day, we set forth in some detail the reasons for conclud- ing that technical employees in a health care institu- tion, who are generally licensed, certified, or registered, constitute a readily identifiable group of technical em- 3 Nathan and Miriam Barnert Memorial Hospital Association, d/b/a Barnert Memorial Hospital Center, 217 NLRB No 132 217 NLRB No. 134 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees with a community of interest separate and dis- tinct from that of service and maintenance employees, and thus may constitute an appropriate unit. We note that such technical employees are more highly trained in medical technical procedure, either through comple- tion of higher level formal education programs or spe- cial technical training programs, or both, are higher skilled and often higher paid, often work in separate laboratories or areas, and perform work requiring a higher degree of responsibility and initiative than do the service and maintenance employees. In Barnert, we concluded that LPN's, because of the requirements that they receive special schooling, pass qualification examinations, and be licensed by the State before they can perform as LPN's were appropriately classified as technical employees. We reaffirm that con- clusion herein, because we are satisfied that it naturally derives from the fact that their education, training, qualifications, skills, and duties clearly differentiate their interests from those of service and maintenance employees generally and give them interests in com- mon with technical employees who are subject to the same sort of schooling, licensing, registration, or cer- tification requirements; requirements which at once demonstrate their qualification for, and competency in, performing the duties of their specialty. It is true that in Barnert the petitioner sought to represent technical' in a separate unit, whereas here Petitioner seeks simply to exclude them from the serv- ice and maintenance unit. We see nothing in this cir- cumstance which compels the conclusion that these technical employees must be included in the service and maintenance unit which Petitioner seeks to represent. In the first place a service and maintenance unit in a service industry is the analogue to the plantwide pro- duction and maintenance unit in the industrial sector, and as such is the classic appropriate unit.' Secondly, the technical employees do constitute a group of em- ployees with interests sufficiently distinct and separate from those of service and maintenance employees that they may constitute a separate appropriate unit; thus their exclusion will not leave them without realistic opportunity to seek representation for collective-bar- gaining purposes. Thirdly, the establishment of both a service and maintenance unit and technical unit cannot realistically be said to constitute the sort of undue pro- liferation of bargaining units which the Congress di- rected the Board to prevent.' Finally, and of equal if not greater importance, is the fact that Section 9(b) of the Act directs the Board to make unit determinations which "assure employees the fullest freedom in exercis- ing the rights guaranteed by this Act." It seems obvious 4 The President and Directors of Georgetown College for Georgetown University, 200 NLRB 215, 216 (1972) 5 See the discussion in Barnert Memorial Hospital Center, supra to us that "fullest freedom" is not assured by the policy advocated by our dissenting colleagues of placing in a unit of employees, which is otherwise appropriate, other employees which the Petitioner does not seek to represent, and may not be qualified to afford adequate representation, where such additional employees may also constitute an appropriate unit.' While such a combined unit may also be appropriate, it is a well- established principle that nothing in the policy of the Act can be said to place upon a union the obligation of seeking the largest appropriate unit, or even the most appropriate unit; it is enough that the unit sought is an appropriate unit.' For the foregoing reasons we are satisfied that the service and maintenance unit excluding LPN's and other technical employees in an appropriate unit. Though Petitioner sought the exclusion of technical employees, the parties are in dispute as to whether certain employees are technical employees and thus subject to exclusion from the unit. Applying the criteria stated in Barnert Memorial Hospital, it is obvious that certain disputed employees must be excluded from the service and maintenance unit as technicals. The dental lab technicians must take a 2-year dental laboratory course and be relicensed every year. Although the record is not wholly clear as to the orthotists and prosthetists whom the Petitioner would include, it is apparent that the Employer prefers employees in these positions to possess the national certification acknowledged by the State of Connecticut.' By the same token, the Employer pre- fers that its medical technologists be registered by the American Society of Medical Technologists and that they attend an approved school of medical technology.' The electroencephalography-technolo- gists I and II must be certified by the American Board of Registration for Electroencephalogenic Technolo- gist or at least be eligible for part I of the exam.10 The surgical technicians must complete a formal technician training program approved by the ' National Associa- 6 Such added employees may well determine the question against repre- sentation, though the other employees desire representation by Petitioner which has sought to represent them I See discussion in Barnert Memorial Hospital Center, supra. 8 In fact, the position description reads that certification is a requirement. The record indicates that the orthotist or prosthetist trainee has "a clinical affiliation with New York University" and is at the hospital on a temporary -basis In this circumstance, we shall exclude the orthotist or prosthetist trainee from the service and maintenance unit 9 In finding the medical technologists to have a community of interest sufficiently different from that of the service and maintenance employees justifying their exclusion, we do not consider whether the medical technolo- gists may, in fact, be professionals It is enough for the purposes of this Decision to find that they are properly excluded from the unit 10 The job description for technologist trainee-EEG indicates that these trainees are required to have completed 1 year of college or university education and, as trainees, are in the line of progression for promotion to become EEG technologists I when they have completed the program of additional training which they are now pursuing Accordingly, we shall exclude them from the service and maintenance unit NEWINGTON CHILDREN'S HOSPITAL , tion for the Training of Surgical-Technicians and must be eligible to take a certification exam. The job descrip- tion for the chief technician requires that this in- dividual be a professional nurse, or have LPN training or special training as an orthopedic technician. The radiologic technologists must have 2 years of radiologic technology school and a certification with the Ameri- can Registry of Radiologic Technologists, and the res- piratory therapy technician must also carry certifica- tion. The recreation activity specialist must have Completed a formal course of instruction in a specialty field.' The most obvious factor differentiating these em- ployees from the service and maintenance employees is that they, like other technical employees, are preferably certified by a school, licensed by the State, or registered by an association establishing and, maintaining stand- ards of proficiency and performance in their fields of competency. Of course, the LPN's fit within this cate- gory since they must be licensed by the State of Con- necticut. The duties and responsibilities required of these employees demand technical knowledge, skills, training, and judgment . Proficiency in these areas re- quires special education and the uniqueness of their responsibilities and skills is demonstrated by their li- censes, certifications, and registrations. We shall there- fore exclude them and other technical employees from the service and maintenance unit found appropriate herein. Other disputed employees, however, must be in- cluded in the unit petitioned for. There is no basis for excluding the photographer-cinematographer-televi- sion technician (apparently considered to be a technical employee by the Employer), or the leather technicians and the orthotic footwear technicians (alleged to be technical employees by the Petitioner), since these em- ployees are not required to complete higher level for- mal education programs or special technical training programs or to be licensed, registered, or certified. Therefore, we shall include these classifications and the recreation attendant in the service and maintenance unit. We shall also include in the service and maintenance unit all clerical employees who are not business office clerical employees. 'Z The hospital clericals (as con- trasted with business office clericals) are located geo- graphically throughout the hospital, within various de- partments composed of other service and maintenance employees. Their ,work and working conditions are materially related to unit work. For example, the clerk I1 in the operation room- is in the nursing department, 11 The recreation attendant is not required to possess any special qualifica- tions which would justify the exclusion of this employee from the unit sought 12 Mercy Hospitals of Sacramento, Inc , 217 NLRB 765 (1975). 795 relays and receives messages from the operating room, and is supervised by the operating room supervisor. The ward clerks are also in the nursing department, are supervised by the head nurse, answer-the patients' in- tercom, and give and receive telephone messages. In the housekeeping department, the secretary I acts as a secretary to the executive housekeeper, coming in con- stant contact with other housekeeping employees who have questions throughout the day. Clearly these em- ployees must be included in a service and maintenance unit.'s On the other hand, there are business office clericals whose community of interest is not related to that of the unit sought. The bookkeeper and cashier in the business office appear to be such employees. Since Peti- tioner sought to exclude all business-related employees as a class, regardless of their location in the hospital or related with unit employees, and since the Employer sought to include virtually all of the business em- ployees, the issue of whether particular classifications, of these employees have a community-of interest with other employees in the unit was not litigated in detail. Accordingly, we are unable on this record, except to the extent indicated above, to determine definitively which classifications are business office clericals, to be excluded, and which are properly within the service and maintenance unit.14 On the basis of the foregoing, we find that the follow- ing employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All service and maintenance employees employed by the Employer, including hospital clerical em- ployees; but excluding licensed practical nurses and other technical employees, medical technolo- gists, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act.' 5 [Direction of Election omitted from publication.] 16 13 St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc., 217 NLRB 787 (1975). 14 See, however, St. Catherine's Hospital, supra; Sisters of St Joseph of Peace, 217 NLRB 797 (1975). In the event that the parties are unable to agree as to the status of any particular employees, except those specifically re- ferred to and placed above, such employees may, of course, vote subject to challenge. 15 Since the inclusion of the hospital clerical employees changes the composition of the unit specifically sought, the Petitioner may not wish to proceed to an election in this unit, or, desiring to do so, may have an inadequate showing of interest In these circumstances, we direct Petitioner to notify the Regional Director within 10 days of this Amended Decision whether it wishes to proceed to an election, and, if so, to submit at the time such additional showing of interest as may be required to support its peti- tion 16 [Excelsior footnote omitted from publication ] 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS KENNEDY AND PENELLO, dissenting: For the reasons set forth in our dissent in Barnert Memorial-Hospital Center,17 issued today, we disagree with our colleagues' emphasis on the licensure, regis- tration, and certification of technical employees in ex- cluding them from the unit of service and maintenance employees. In view of the congressional mandate to avoid proliferation of bargaining units in the health care industry and the express congressional approval of this Board's decision in Extendicare of West Virginia, Inc., d/b/a St. Luke's Hospital," to establish broader units in this industry by including technical employees in a unit of service and maintenance employees, we find the unit found herein to be inappropriate. The principal factor relied on by our colleagues to exclude technical employees from the service and main- tenance unit herein is the fact that they have been "licensed, certified, or registered." As we stated in our dissent in Barnert, this Board should not surrender its responsibility in unit determinations to States, schools, or associations. The result reached by the majority in this case is illustrative of the fears voiced by Congress. Not only will this decision result in undue proliferation of units, but the criteria on which our colleagues rely will create confusion within the units. The unit placement of sev- eral categories of employees illustrates this confusion resulting from the new approach of the new majority. For example, we do not believe that the certification of the orthotists and prosthetists mystically destroys the community of. interest which these employees share with the service and maintenance employees. While certification is based upon a high school education and a 4-year apprenticeship, in no way does it tend to estab- lish that orthotists and prosthetists have a community of interest separate and apart from that of other senior craftsmen included in the service and maintenance unit. Our colleagues in the majority glibly state that "the establishment of both a service and maintenance unit and a technical unit cannot realistically be said to con- stitute the sort of undue proliferation of bargaining units which Congress directed the Board to prevent." In our view, the opposite conclusion is true. Surely, in view of both the House and Senate Reports19 concern- ing the health care amendments, no less comprehensive unit than a service and maintenance unit including technical employees is justified. 17 217 NLRB 775_(1975) 1s 203 NLRB 1232 (1973) 19 S. Rept 93-766, 93d Gong., 2d sess. 5 (1974), H. Rept. 93-1951, 93d Cong., 2d sess. 7 (1974). 20 134 NLRB 1101 (1961) The -majority position is directly contrary to the policy followed by the Board since The Sheffield Corporation,20 where it was announced that the Board was abandoning its practice of automatically excluding all technical employees from other units whenever their unit placement is in issue. In Sheffield, the Board de- cided no longer to use an "automatic -placement for- mula," but to give effective weight to the overriding consideration 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, con- tact and/or interchange with other employees, similarity of work conditions, type of industry, organi- zation of plant, whether the technical employees work in separately situated and separately controlled areas, and whether any union seeks to represent technical employees separately."21 In the instant case, our colleagues ignore the Shef- fieldprecedent and apply a mechanical rule of exclud- ing "licensed, certified, or registered" employees from hospital service and maintenance units. We note that the majority has excluded other "technical" employees, who are not licensed, certified, or registered, but who meet the majority's additional, but somewhat confus- ing, test for exclusion as technical employees. However, at least as to those employees who are licensed, certi- fied, or registered, the majority is departing from long- standing Board precedent by failing to undertake a meaningful examination and evaluation of the overrid- ing consideration of the community of interests of such employees with other hospital employees.22 The effect of the new approach taken by the majority herein is to impose a mechanical approach to unit placement only in the health care industry, the very industry in which Congress has admonished the Board to avoid undue proliferation of bargaining units. We do not approve of such an untenable result. As stated in our dissent in Barnert, we find the con- gressional approval of the Board's broad units of serv- ice and maintenance employees, including technical employees, to be controlling herein . Accordingly, we would include the technical employees in the service and maintenance unit. 21 Sheffield Corporation , supra at 1103-04 22 It is noted that, in common with the service and maintenance em- ployees, these technical employees are hourly paid, punch timeclocks, have contact with other employees who are included in the service and mainte- nance unit, share common dining and break facilities , share a common personnel policy, participate in the same orientation programs , and share common fringe benefits.