Clarion Osteopathic Community Hospital

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clarion Osteopathic Community Hospital and District 1199P, National Union of Hospital and Health Care Employees, a Division of RWDSU, AFL-CIO, Pe- titioner. Case 6-RC-7014 July 18, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING 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 Frank J. Surprenant of the National Labor Relations Board. On March 28, the Regional Director for Region 6 issued a Decision and Direction of Elections in which he found appropriate a separate bargaining unit consisting of all licensed practical nurses em- ployed by the Employer. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's Decision, together with a sup- porting brief, asserting, inter alia, that the Regional Director erred in directing an election in a unit re- stricted to licensed practical nurses. On May 16, 1975, the National Labor Relations Board by telegraphic order granted the request for review and stayed the election pending a decision on review. The Employer and the Petitioner filed briefs on review which have been duly considered. 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 reviewed the entire record in this case and makes the following findings: The Employer is a nonprofit Pennsylvania corpo- ration engaged in the operation of a 69-bed health care facility in Clarion, Pennsylvania. The Petitioner filed a petition seeking to represent a unit of all li- censed practical nurses employed by the Employer. For the reasons stated in our decision in St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc., 217 NLRB No. 133 (1975), we find that a unit consisting solely of licensed practical nurses is inappropriate.' In its brief on review, the Petitioner expressed a willingness to represent an enlarged unit consisting i See also our decision in Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975). of all licensed practical nurses and other technical employees employed by the Employer. The Employ- er asserts that we should dismiss the instant petition, contending that licensed practical nurses are more properly included in a service and maintenance unit, [that some practical nurses are not licensed] and therefore are not includable in a technical unit, and that the Petitioner should not be allowed to seek a unit of combined licensed practical nurses and other technical employees inasmuch as it previously with- drew a petition seeking a separate unit of technical employees. For the following reasons, we reject the Employer's contentions. Based on the facts, discussed hereinafter, concern- ing the training, licensing, registration, and job duties of the Employer's licensed practical nurses and other technical employees, we find, for the reasons stated in St. Catherine's and Barnert, supra, that the Petitioner's alternative requested unit of technical employees including nurses is inappropriate? In deciding which employee classifications are properly includable in a unit of technical employees including licensed practical nurses, we apply the Board's standard criteria that technical employees are those "who do not meet the strict requirements of the term `professional employee' as defined in the Act but whose work is of a technical nature involving the use of independent judgment and requiring the exercise of specialized training usually acquired in colleges or technical schools or through special courses." 3 The record indicates that the Employer employs 22 licensed practical nurses who work in the nursing de- partment and are generally responsible for providing direct nursing care to patients. The record further shows that the licensed practical nurses are licensed by the State of Pennsylvania and must have attended a 1-year course of instruction in an approved school after graduating from high school. Thereafter, they must take a special examination administered by the State Board of Nursing Examiners and, if they pass the examination, they are licensed. Licenses must be renewed every 2 years and are subject to cancellation by the State for violation of the State's nursing stat- 2 In St. Catherine's, we found that licensed practical nurses are not prop- erly placed in the same unit with service and maintenance employees and, for the reasons stated therein , we reject the Employer's contention in the instant case that its licensed practical nurses should be included in the same unit as its service and maintenance employees. We also reject the Employer's contention that the Petitioner should not now be permitted to represent a unit of technical employees because it previously withdrew a petition for a unit of technical employees excluding licensed practical nurs- es. Such withdrawal was voluntary and that petition, as well as the instant petition, was filed prior to the issuance of the St. Catherine's and Barnert cases, which established guidelines for appropriate bargaining units of tech- nical employees and licensed practical nurses 3 Litton Industries of Maryland. Incorporated, 125 NLRB 722, 724-725 (1959). 219 NLRB No. 41 CLARION OSTEOPATHIC HOSPITAL ute. The record further establishes that licensed prac- tical nurses exercise some skills and provide some nursing care, commensurate with their specialized schooling and experience, which cannot be per- formed by aides or orderlies. Thus, there is uncontro- verted testimony that licensed practical nurses are more qualified than aides to assist in the treatment of critically ill patients. Based on the above evidence concerning the licensed practical nurses' specialized training, licensing, and job duties, we find that they are technical employees and are properly includable in the above unit.° The Employer also employs three "waiver" li- censed practical nurses who were granted licenses by the State without having taking an examination un- der a grandfather provision in the state licensing stat- ute. These individuals were all hired prior to 1967 and the record establishes that no additional waiver licensed practical nurses will be hired. Since waiver licensed practical nurses are licensed and the record establishes that they perform the same tasks under the same conditions as regular licensed practical nurses, we shall include them in the unit. The Petitioner S would include in a technical unit all full-time and part-time x-ray technicians em- ployed by the Employer. The record establishes that there are four employees in the x-ray department. Two full-time x-ray technicians are licensed radiolo- gy technicians who have taken special courses in their field, passed the required examination, and are registered by the American Registry of Radiological Technologists. Another full-time x-ray technician has completed all necessary schooling and has taken the registration examination. The record was unclear as to whether this individual has received the results of that examination and is presently registered. The rec- ord establishes that all x-ray technicians, by virtue of their specialized training and qualifications, are com- pletely responsible to take and process all x-rays in the Employer's facility. Accordingly, in light of their educational requirements, registration, and the tech- nical nature of their duties, we find that x-ray techni- cians are technical employees and we shall include them in the above unit. A fourth individual in the x-ray department is a regular part-time x-ray technician who has complet- ed half of a 2-year specialized training program in another hospital. This individual regularly works 2 days per week in the x-ray department and performs the same tasks as the full-time technicians. As stated in St. Catherine's, supra, our finding that an individu- al is a technical employee is based on the technical See Barnert, supra. 3 The Employer took no position on the unit placement of any specific employee classifications. 249 nature of the work performed and the specialized training required to perform that work, which usual- ly, but not necessarily, is evidenced by licensure or registration. In the instant case, the record ade- quately establishes that the part-time x-ray techni- cian has sufficient training to perform, and does per- form, the identical technical tasks as the full-time technicians. Accordingly, despite the fact that this individual has not completed the requisite schooling for registration and is not registered, we find, for the foregoing reasons, that this regular part-time x-ray technician is a technical employee and we shall in- clude that individual in the above unit. The Employer employs a number of "laboratory personnel" whom the Petitioner would not include in the technical unit. The record indicates that the labo- ratory personnel conduct various tests ordered by physicians and use specialized procedures to obtain those results. However, the uncontroverted evidence establishes that laboratory personnel exercise no more independent judgment than other hospital em- ployees, are not required to have any specialized edu- cation or training beyond high school, are not re- quired to be registered or to receive on-the-job training, are hired as laboratory aides at a salary lev- el comparable to that of other aides and orderlies, and progress only as they learn. Based on the above evidence, we find that the laboratory personnel are not technical employees and we shall not include them in the bargaining unit. The Petitioner takes no position on the inclusion or exclusion of the medical technologist. The medical technologist works as a laboratory technician and has a bachelor of arts degree in medical technology from an accredited university. The record is unclear whether or not this individual has taken a registra- tion examination or is registered by the American Society of Medical Pathologists. In addition, the rec- ord does not discuss the job duties and responsibili- ties of the medical technologist or how they differ from those of the laboratory personnel. Accordingly, as the record is inadequate for us to make an in- formed determination as to the possible professional status of the medical technologist, we shall permit the medical technologist to vote subject to challenge. Based upon the foregoing, we find that the follow- ing employees constitute 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 tech- nical employees including licensed practical nurses and x-ray technicians employed by the Employer at its hospital facility located in Clar- ion, Pennsylvania, excluding all other employ- 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, guards, and supervisors as defined in the Act. [Direction of Election 6 omitted from publica- tion.]' MEMBER PENELLO, dissenting: For the reasons set forth in the dissent in Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospital Center, 217 NLRB No. 132 (1975), I agree with my colleagues' finding that a unit restricted to licensed practical nurses is inappropriate . However, I disagree with my col- leagues' finding appropriate and directing an election in a unit of all technical employees including licensed practical nurses employed by the Employer. In my 6 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. 7 Excelsior footnote omitted from publication. opinion, the granting of a separate unit for technical employees, whether or not it includes licensed practi- cal nurses, is contrary to the congressional mandate to avoid undue proliferation of bargaining units in the health care industry.' Mindful of the clear man- date from Congress to establish broad units in this industry, I would, in accordance with the Employer's position herein, require all technical employees, in- cluding licensed practical nurses , to be included in a broad service and maintenance unit .9 Accordingly, I would dismiss the instant petition. 3In both the House and Senate Reports concerning the health care amendments, Congress expressly approved of the Board's Decision in Ex- tendicare of West Virginia, Inc., d/b/a St. Luke's Hospital, 203 NLRB 1232 (1973), to establish broader units in this industry by including technical employees in a unit of service and maintenance employees . S. Rept. 93-766, 93d Cong., 2d sess. 5 (1974); H. Rept. 93-1051, 93d Cong., 2d sess. 7 (1974). 9 See my separate concurring opinion in Mt. Airy Foundation, d/b/a Mi. Airy Psychiatric Center, 217 NLRB No 137 (1975). See also my partial dissent in St. Catherine's Hospital of Dominican Sisters of Kenosha, Wiscon- srs, Inc., supra