Mount Airy Psychiatric Center

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mount Airy Foundation, d/b/a Mount Airy Psychia- tric Center and Retail Clerks Union -Local No. 7, Chartered by Retail Clerks International Associa- tion, AFL-CIO, Petitioner. Case 27-RC-4902 May 5, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTION On November 19, 1974, the Regional Director for Region 27 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate a unit of all patient care employees, includ- ing licensed practical nurses, nurses assistants, recrea- tional therapists, ward secretaries, and alcohol treat- ment counselors; but excluding registered nurses, pharmacists, social workers, laboratory and x-ray tech- nicians, dietary employees, housekeeping employees, and office clerical employees. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series. 8, as amended, the Employer filed a timely request for review of the Regional Director's decision. 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 Employer's request for review in this case and stayed the election pending decision on re- view. Thereafter, the Employer filed a brief on review and the Petitioner filed a statement in support of the Regional Director's decision. The Board has considered the entire record in this case, with respect to the issues under review, -including the brief and statement on review, and the amicibriefs, and makes the following findings: The Employer is a nonprofit licensed psychiatric hospital engaged in mental health care in Denver, Colorado. The hospital has 85 beds and it employs approximately 100 persons. It is administratively or- ganized into two major departments: patient care and support services. The Petitioner requests a unit of all patient care employees which it contends consists of nursing assist- ants, occupational and recreational therapists, and Member Kennedy dissented from the grant of oral argument ward - secretaries. Petitioner, however, expressed its willingness to represent alcohol treatment counselors and LPN's should they be found to be appropriately within the unit. The Employer contends that the only appropriate unit would be one of all nonprofessional employees. Thus it seeks to expand the unit sought by Petitioner to further include all maintenance, housekeeping, dietary, and office clerical employees, but to exclude the occupational therapists and LPN's on the ground that they are professionals, The Regional Director found the employees sought by Petitioner to constitute an appropriate unit on the basis of their direct involvement in patient therapy and care, but, in line with Petitioner's expressed willingness to represent them and on the basis of their similar involvement in direct patient care, the Regional Director also included the alcohol treatment counselors and LPN's in the unit found appropriate. He further found merit in the Em- ployer's contention that the occupational therapist sought by Petitioner was a professional employee. We scheduled oral argument in this particular case essentially to consider whether the dichotomy, urged by Petitioner and employed by the Regional Director, between "direct" and "indirect" patient care was viable to the extent that it might provide, in part, a sound and manageable basis upon which the Board could fashion appropriate units in keeping with our legislative man- date to avoid an undue fragmentation of bargaining units in this vitally important industry. Having given prolonged and careful consideration to the issue, we have determined that the dichotomy is not sufficiently definable to warrant its utilization, The contentions of the parties throughout our delib- erations have been exhaustive. If any particular fact is evident it is the fact that all employees in the health care industry, sharing as they must a genuine concern for the well-being of patients, are involved in "patient care." The degree or immediacy of such involvement may concededly vary but, given the nature of our unit determinations, distinguishing between "direct" and "indirect',' care can fairly be anticipated to be a distinc- tion of specious value. Ultimately the questions to be posed will involve such ephemeral inquiries as whether an employee who serves a meal to a patient is indirectly involved in that patient's "care," whereas an employee isolated in a room collecting data on blood samples is directly involved in the patient's "care." Is a mainte- nance employee fixing a thermostat in the patient's room less involved in the patient's "care" than the ward secretary monitoring the activity of a particular area of the institution? Examples are endless. All lead to the conclusion that the dichotomy poses more prob- lems than it solves. In terms of this particular case, we note that the parties are in apparent agreement that nursing assist- 217 NLRB No. 137 MOUNT AIRY PSYCHIATRIC CENTER 803 ants, recreational therapists, ward secretaries, alcohol treatment counselors, and LPN's are appropriately within the unit found by the Regional Director. On that basis, we shall not disturb their grouping.2 As to those classifications in dispute, for the reasons stated in Mercy Hospitals of Sacramento, 217 NLRB 765, issued this day, we will not include business office clerical employees. With regard to the housekeeping, dietary, and maintenance employees, whom the Petitioner would exclude, we note that these employees work the same hours, enjoy the same fringe benefits, are paid at essentially comparable rates, share the same probationary'periods, and have equal oppor- tunities for advancement through job postings as do many other employees upon whose inclusion in the unit is agreed. Within the housekeeping, dietary, and main- teriance groups there is frequent interchange; no em- ployees perform sufficiently skilled functions militating against their inclusion. They all spend major parts of their workday in the company of other included em- ployees. We shall therefore include them in the unit found appropriate. Finally, with regard to the x-ray and laboratory tech- •nicians, Employer originally joined Petitioner in stipu- lating to their exclusion but for an apparently different reason than Petitioner; namely, that they were profes- sional employees. At oral argument Employer changed its position and sought their inclusion in any unit found appropriate. The inclusion of these technicians is thus in dispute at this time. We shall include them in the unit found appropriate in accordance with our decision in Barnert Memorial Hospital Center, 217 NLRB 2 We agree with the Regional Director's conclusion that the occupational therapist is a professional employee The occupational therapist must com- plel e 4 years of academic work and 1 year of postgraduate clinical work and pass a national examination This finding does not extend to any other employees, including the occupational therapist' s assistants, who work in the occupational therapy department. The Employer, in seeking an all non- professional unit, did not agree to the inclusion of all LPN's but only on the ground that they too are professional employees In Nathan and Miriam Bainert Memorial Hospital Association d/b/a Barnert Memorial Hospital Center, 217 NLRB 775, and Newington Children's Hospital, 217 NLRB 793, issued this day, we have decided, inter alia, that LPN's on the basis of their licensing requirements and performance of specialized duties are properly classified as "technical" but not "professional" employees See also Jackson Manor Nursing Home, Inc. and/or Isaac Mizrahi d/b/a Jackson Manor Nursing Home, Snapper Creek Nursing Home and Arch Creek Nurs- ing Home, 194 NLRB 892 (1972). We do not, therefore, view the Employer's position on LPN's, seeking as it did an all nonprofessional employee unit, as disagreeing with the conclu- sion to include LPN's in the unit found herein once the LPN's nonprofes- sional status has been determined We further note that our reliance on Petitioner's willingness to represent the LPN's in the unit found appropriate is not inconsistent with our refusal in Barnert, supra, to adopt their stipulated exclusion from either of the units sought therein The Barnert petitioner sought, in addition to a service and maintenance unit, a separate technical employee unit Our determination not to adopt the parties' stipulation to exclude LPN's was based on our established policy of requiring the inclusion of alltechnical employees when a technical unit is sought See The Bendix Corporation, Kansas City Divi- sion, 150 NLRB 718 (1964); Woodland Park Hospital, Inc, 205 NLRB 888 (1973), overruling Ochsner Clinic, 192 NLRB 1059 (1971) 775, supra. These two employees do not appear to be licensed, registered, or certified by an appropriate au- thority nor does the record indicate that they are in- volved in functions requiring a sufficiently consistent exercise of independent judgment. Moreover, compris- ing, as they apparently do, the only remaining em- ployees arguably performing a "technical" function,' to permit their exclusion from the unit found appropri- ate can only lead to the unwarranted unit fragmenta- tion we are admonished to avoid. Accordingly, having concluded that the only appro- priate unit which embraces all employees sought by Petitioner is the hospitalwide unit of all nonprofes- sional employees, including, in the circumstances of this case, all LPN's and x-ray and laboratory techni- cians, but excluding business office clerical employees,' we find the following employees of the Employer constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer, excluding all busi- ness office clerical employees, professionals, guards, and supervisors as defined in the Act. [Direction of Elections omitted from publication.]6 MEMBER PENELLO, concurring: I agree with my colleagues in the majority that the "patient care" unit sought by the Petitioner is too nar- row in scope and therefore inappropriate. I also agree with their conclusion that the appropriate unit herein for collective bargaining is one which includes all em- ployees of the Employer with the exception of profes- sionals and business office clericals. My agreement with the unit determination, however, is not based solely on the facts of this particular case, but rather on my understanding of the congressional mandate, as evidenced by the legislative history preced- ing the passage of the 1974 health care amendments to the National Labor Relations Act, to avoid undue pro- 3 The alcohol treatment counselors whom the Employer would include and whom Petitioner has expressed a willingness to represent are clearly not technical employees at the Employer's facility. No requirements for the position exist beyond the Employer's preference that they "be empathetic of the alcohol user by personal experience." 4 We do not agree with Member Kennedy that a unit which is otherwise appropriate-at this facility, the business office clerical unit-becomes inap- propriate simply because the labor organization seeking to represent em- ployees in that unit represents, or is seeking to represent, employees in another appropriate unit. To say the business office clericals have sufficient separate interests to warrant their own unit when union "X" seeks to repre- sent them but not when union "Y" does appears to us illogical and, in a sense, unfair both to the business office clericals and to union "Y " 5 As the unit found appropriate is broader than that originally petitioned for by the Petitioner, the Regional Director shall determine whether its showing of interest is sufficient before proceeding with the election 6 [Excelsior footnote omitted from publication.] 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD liferation of bargaining units in the health care . industry.7 In the instant case, my colleagues in the majority have included the LPN's, but only because the Peti- tioner expressed a willingness to represent them should they be found to be appropriately within the unit by the Board. The two technicians involved herein have also been included. However, their inclusion is based primarily on the decision in Barnert Memorial Hospital Center, 217 NLRB 775, issued this day, with which I disagree, wherein a Board majority held that only such employees, who are not -licensed, certified, or registered,' or who are not involved in functions re- quiring a sufficiently consistent exercise of independent judgment, share a community of interest with service and maintenance employees and must be included in the same unit. In my view, LPN's do not constitute a separate ap- propriate unit, and therefore they must be included in an overall service and maintenance unit without regard to whether or not they were requested by the Union.' Furthermore, I am of the view that all techni- cal employees, whether or not they are licensed, certi- fied, or registered, must also be included in the same overall unit. In my judgment, the granting of a separate unit for technical employees, including LPN's, who are licensed, certified, or registered, or who are involved in functions requiring a sufficiently consistent exercise of independent judgment, as my colleagues in the majority have agreed to do,10 is contrary to the con- gressional mandate to avoid undue proliferation of bar- gaining units in the health care industry. MEMBER KENNEDY, dissenting in part: I join my colleagues in rejecting the concept of direct patient care as a basis for making unit determinations. I agree-that the unit appropriate herein should include all service and maintenance employees of the Em- ployer. My disagreement with my colleagues in their unit finding in this case is limited to their failure to include the business office clerical employees in the same unit with service and maintenance employees." I would include the business office cleri- 7 S Rept 93-766, 93d Cong., 2d sess. 5 (1974), H. Rept 93-1051, 93d Cong., 2d sess. 7 (1974). 8 The technicians involved herein are not licensed, certified, or registered. 9 To the extent that the decision in Extendicare of West Virginia, Inc, d/b/a St. Luke's Hospital, 203 NLRB 1232 (1973), is inconsistent with my view as expressed herein with regard to LPN's, I would overrule it 10 See Barnett Memorial Hospital Center, supra. 11 I am in complete agreement with the views expressed by Member Penello in his separate opinion with respect to the inclusion of "licensed, certified, or registered" employees and the LPN's in a service and mainte- nance unit. 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 health care cases adequately present the issues In my view, the delay in the resolution of these issues was predictably cal employees in the unit in which an election is being directed since the same Union seeks to represent them. The Employer herein has filed a request for review with-the Board in the companion Case 27-RC-4949 in which the Regional Director has directed an election in a unit of all office clerical employees." The same Union, Retail Clerks Union Local No. 7, is the-Peti- tioner in both the instant case and Case 27-RC-4949. The establishment of a separate business office clerical unit under these circumstances is an un- warranted fragmentation of the unit in this small hospi- tal. I reiterate the view expressed in my dissent in Exten- dicare of West Virginia13 that this Board should not splinter "a comprehensive unit into separate units when there is a single union involved and no prior history of collective bargaining." I think my colleagues err in splintering this small hospital's work force into a separate unit of business office clericals and another unit of service and maintenance employees. The legislative history of the health care amend- ments makes clear that Congress concluded that the decision inExtendicare of West Virginia, supra, grant- ing a separate unit for LPN's was inconsistent with the Board's own policy to avoid fragmentation and with the congressional mandate against proliferation of bar- gaining units in this industry. I construe footnote 1 of the Senate and House Reports as an expression of dis- pleasure with the Board's decision to grant a separate unit for LPN's where the same union is seeking to represent the service and maintenance employees.14 My colleagues heed the advice of Congress and in- clude the licensed practical nurses in the broad unit of nonprofessional employees but exclude the business of- fice clericals from that unit. I fail to perceive how the duties and interests of the clericals in the business office are so dissimilar from the other hospital clericals as to undesirable for the employees, the unions, and the employers in the health care field 12 Presumably, the office clericals included in the unit in Case 27-RC-4949 are the same business office clericals excluded in the instant case. 13 203 NLRB 1232 (1973) 14 The Senate Report and the House Report contained the following passage in identical form Bargaining Units Due consideration should be given by the Board to preventing prolif- eration of bargaining units in the health care industry. In this connec- tion, the Committee notes with approval the recent Board decisions in Four Seasons Nursing Center, 208 NLRB No. 50, 85 LRRM 1093 (1974) and Woodland Park Hospital 205 NLRB No. 144, 84 LRRM 1075 (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB 1232, 83 LRRM 1242 (1973) 1 1 By our reference to Extendicare we do not necessarily approve all the holdings of that decision. MOUNT AIRY PSYCHIATRIC CENTER 805 justify a separate unit when the same Union seeks to represent them. Every department of a hospital has significant clerical responsibilities. I reject the view that the working conditions of business office clericals es- tablish such a community of interest that they must be represented in a separate unit. I believe the majority here is making the same error with respect to business office clericals that the Board made with respect to LPN's in the Extendicare case. As pointed out in my dissent in St. Catherine's Hospi- tal of Dominican Sisters of Kenosha, Wisconsin, Inc., 217 NLRB 787, issued today, it defies logic and congressional policy to segregate the employees into two separate units for representation purposes. I would grant review in Case 27-RC-4949 and include the busi- ness office clericals in the unit in which an election is being directed.