Meharry Medical College

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meharry Medical College' and Health Care Local 1308, affiliated with Laborers' International Union of North America, AFL-CIO, Petitioner. Cases 26- RC-4950, 26-RC-4973,2 and 26-RC-4980 July 25, 1975 DECISION AND DIRECTION OF ELECTIONS By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consol- idated hearing was held before Hearing Officer Ber- nard G. Aronstam of the National Labor Relations Board. Following the hearing and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Region- al Director for Region 26, these cases were transfer- red to the National Labor Relations Board for deci- sion. Thereafter, the Employer filed a timely brief which has 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is a general welfare corporation organized under the laws of the State of Tennessee. It is engaged in the academic and practical education and training of medical doctors, dentists, and other health care persons. In that capacity, the Employer is engaged in the operation of a medical center com- posed of a hospital, medical school, and neighbor- hood mental health center providing general health care services and facilities for the public. The parties stipulated, and we find, that the Em- ployer is a health care institution within the meaning of Section 2(14) of the Act. The parties further stipu- lated that the Employer's gross annual revenues ex- ceed $1 million and that it annually purchases mate- rials and supplies from outside the State of Tennessee having value exceeding $50,000. Accord- ingly, we find, in accordance with the parties' stipula- i The names of the Employer and the Petitioner appear as amended at the hearing. 2 Tennessee Nurses Association was granted intervention with respect to the petition in Case 26-RC-4973, on the basis of a sufficient showing of interest. tion, that the Employer is engaged in commerce within the meaning of the Act and that it will effectu- ate the purposes of the Act to assert jurisdiction here- in. 2. At issue is the Petitioner's status as a labor or- ganization. The record establishes without contradic- tion that the Petitioner is an organization in which employees participate, and that it exists for the pur- pose of bargaining with employers concerning griev- ances, labor disputes, wages, rates of pay, hours, and working conditions. The Petitioner has a constitution and bylaws, holds regular membership meetings, and plans to hold a general election for officers. Accord- ingly, based on the above evidence, we find that the Petitioner, which claims to represent certain employ- ees of the Employer, is a labor organization within the meaning of Section 2(2) of the Act.' The parties stipulated, and we find, that the In- tervenor is a labor organization within the meaning of the Act. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner filed three separate petitions seeking to represent three different units of employ- ees at the Employer's medical complex. In Case 26-RC-4950, the Petitioner seeks to repre- sent all nonprofessional service and maintenance em- ployees of the Employer. The parties are in apparent agreement as to the classifications to be included in such nonprofessional service and maintenance unit. Thus, at the hearing, the Petitioner amended its peti- tioned-for unit description to include all full-time and part-time nonprofessional service and mainte- nance employees including LPN's, aides, assistants, housekeeping and maintenance employees, laundry workers, food service and dietary employees, medical records clerks, technicians, social service aides, inter- viewers, matrons, teaching aides, PBX operators, and all nonbusiness office clerical employees 4 While the Employer maintains generally that the only appropri- ate unit of its employees should include "all nonfac- ulty, nonprofessional, nonsupervisory employees" 3 Alto Plastics Manufacturing Corporation, 136 NLRB 850 (1962). This unit description is identical to a unit description previously stipu- lated by the Employer and the Petitioner Thus, the petition in Case 26- RC-4950 was filed on January 21, 1975. On February 14, 1975, the Employ- er and the Petitioner entered into a Stipulation for Certification Upon Con- sent Election in a unit consisting of all of the employee classifications described above and an election was scheduled However, on February 19 and 27, 1975, the Petitioner filed separate petitions in Cases 26-RC-4973 and 26-RC-4980 seeking units of registered nurses and clerks, respectively. Thereafter, the Employer filed a motion to withdraw from the stipulation in Case 26-RC-4950 The Petitioner then offered to withdraw the latter two petitions if the Employer would agree to the stipulation in the former case The Acting Regional Director decided to consolidate all three cases for hearing and canceled the election in Case 26-RC-4950. MEHARRY MEDICAL COLLEGE 489 employed by it, the Employer indicated that it would include in such unit all of the classifications sought by the Petitioner and, additionally, would include therein inhalation and cobalt therapists, pharmacy aides, and all clerical employees. The Petitioner took no position on the unit placement of these additional classifications and leaves the determination of the appropriate unit to the Board. In Mount Airy Foundation d/b/a Mt. Airy Psychiat- ric Center, 217 NLRB No. 137 (1975), the Board de- cided that nonprofessional service and maintenance employees constitute an appropriate bargaining unit of employees in the health care industry and we find, for the reasons stated therein, that the petitioned-for unit in the instant case of nonprofessional service and maintenance employees is appropriate.5 We fur- ther find, consistent with the agreement of the par- ties, that the above unit should include the following employee classifications : LPN IS 6 aides, assistants, housekeeping employees, maintenance employees, linenroom employees,' food service and dietary em- ployees, technicians, social service aides, interview- ers, matrons, teaching aides, PBX operators, and medical record clerks. The Employer contends that inhalation and col- balt therapists and pharmacy aides should be includ- ed in the unit. The record establishes that the inhala- tion and colbalt therapists work in the nursing department. Unlike all of the Employer's other thera- pists, who are required to hold academic degrees in their respective specialties and exercise independent judgment in the performance of their duties, the inhalation and colbalt therapists receive on-the-job training for their particular duties, are not required to possess any degree or licensing qualifications, and perform mainly routine tasks.' The pharmacy aides work in the pharmacy, carrying prescriptions and S See also Mercy Hospitals of Sacramento, Inc, 217 NLRB No. 131 (1975): see St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc., 217 NLRB No. 133 (1975); and Newington Children 's Hospital, 2L7 NLRB No. 134 ( 1975). Member Penello would also find the petitioned -for unit to be appropriate based on his view that all nonprofessionals in a health care facility, with the exception of business office clericals, must be included in one unit for collective -bargaining purposes . See his separate concurring opinion in Mt. Airy, supra. 6 We shall give effect to the parties' agreement to include LPN's in the above nonprofessional service and maintenance bargaining unit. The inclu- sion of LPN 's in such a unit does not contravene the provisions or purposes of the Act or established Board policy: See Otis Hospital, Inc., 219 NLRB No. 55. Member Penello would include LPN 's in an all nonprofessional service and maintenance bargaining units even absent a stipulation by the parties to do so. See In . 14 in Otis Hospital, supra, and his dissenting opinion in St. Catherine 's Hospital of Dominican Sisters of Kenosha, Wisconsin, supra, and his concurring opinion in Mt, Airy, supra. 7 Referred to by the Petitioner as laundry employees 8 For the reasons expressed in the dissenting opinion in Nathan and Mi- riam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospi- tal Center, 217 NLRB No. 132 (1975), and in his separate concurring opin- ion in Mt. Airy, supra, Member Penello would also include the inhalation and colbalt therapists in the unit herein. medications between the nursing service employees and the pharmacists The record also establishes that the above employees are nonprofessionals and that they have substantial contact with and share com- mon hours, wage scales, fringe benefits, grievance procedure, and other terms and conditions of em- ployment with the service and maintenance employ- ees. Accordingly, we shall include the inhalation and colbalt therapists and pharmacy aides in the nonpro- fessional service and maintenance unit. The Petitioner would include in the nonprofession- al service and maintenance unit only nonbusiness of- fice clerical employees, whereas the Employer would include all clerical employees. For the reasons stated in Mercy Hospitals of Sacramento, Inc., supra, and Sisters of St. Joseph of Peace, 217 NLRB No. 135 (1975), we shall not include business office clerical employees in the service and maintenance unit. Accordingly, for the aforementioned reasons, we find that the petitioned-for unit of all nonprofession- al service and maintenance employees including LPN's, aides, assistants, housekeeping employees, maintenance employees, linenroom employees, food service and dietary employees, technicians, inhala- tion and cobalt therapists, pharmacy aides, social service aides, interviewers, matrons, teaching aides, PBX operators, and nonbusiness office clerical em- ployees constitutes a unit appropriate for collective bargaining within the meaning of the Act and we shall direct an election therein. In Case 26-RC-4973, the Petitioner seeks to repre- sent a unit composed of all registered nurses em- ployed by the Employer, excluding all other profes- sional employees. The Intervenor, Tennessee Nurses Association, likewise contends that registered nurses constitute a separate appropriate professional bar- gaining unit. On the other hand, the Employer's posi- tion is that the only appropriate professional unit should include all of its professional employees. For the reasons stated in Mercy Hospitals of Sacramento, Inc., supra, establishing that registered nurses have a community of interest separate and apart from other professional employees, we find that the petitioned- for unit of registered nurses is appropriate. The Employer employs several graduate nurses. Graduate nurses are nurses who have graduated from accredited nursing schools and have either tak- en or are about to take the registration examination required by the State to become licensed as regis- tered nurses. Until such time as they receive notifica- tion they have passed the examination, the graduate nurses work under state permits performing essen- tially the same functions and duties as the registered nurses, under the supervision of the director of nurs- ing, except for the handling of narcotics or as limited 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by law. Both the Employer and the Petitioner took the position that graduate nurses should be included in the bargaining unit with registered nurses, whereas the Intervenor opposed their inclusion. By virtue of the above evidence concerning the nature of the training and working conditions of graduate nurses, we shall, in agreement with the Employer and the Petitioner, include graduate nurses in the registered nurses' unit? Graduate nurse technicians are nurses who have graduated from foreign (nonaccredited) nursing schools but have not yet taken the state boards to become licensed as registered nurses. The State of Tennessee does not give permits to foreign educated nurses prior to postexamination licensing as regis- tered nurses. While the uncontested testimony estab- lishes that graduate nurse technicians are the "equiv- alent to a graduate nurse," the record does not establish whether or not the graduate nurse techni- cians' work duties and responsibilities are identical to those performed by graduate nurses. Nor does the record establish the length of time that graduate nurse technicians remain as such until they become fully licensed as registered nurses. Accordingly, in view of the inconclusiveness in the record concerning the nature of the work performed by the graduate nurse technicians, we shall permit the graduate nurse technicians to vote subject to challenge. The Employer contends that charge nurses are su- pervisors within the meaning of the Act and that, because all registered nurses serve as charge nurses at one time or another, all registered nurses are supervi- sors and are not entitled to be included in any em- ployee bargaining unit. The Petitioner and Interve- nor leave the determination of the unit placement of charge nurses to the Board. Charge nurses work in various "divisions" in the nursing services department. All registered nurses serve as charge nurses at one time or another on their respective work shifts on a rotating basis for I day or 1 week. The record establishes that charge nurses are responsible to "direct" the other employees on their respective shifts, which include other registered nurs- es, LPN's, aides, and assistants; however, this direc- tion is limited to directing the performance of the employees' normal work duties and responsibilities and does not involve the exercise of a significant amount of independent judgment by the charge nurse. Thus, the record establishes that registered nurses, while acting as charge nurses, continue to be responsible for the performance of their regular nurs- ing duties and continue to bear individual responsi- bility for patient care. Moreover, all registered nurses 9 See Mercy Hospitals of Sacramento, Inc., supra receive the same rate of pay regardless of whether or not, or how long or how often, they serve as charge nurses. Although the record shows that charge nurses can excuse employees on their shifts, in cases of im- mediate illness, charge nurses cannot grant time off or excuse employees for any other reasons without first clearing such matters with the clinical supervi- sor. Nor does the record establish that charge nurses can hire, fire, discipline, or effectively recommend the hiring, firing, or disciplining of employees. The charge nurse is required to report all disciplinary problems to the clinical supervisor who has ultimate divisional authority for such matters. In addition, the clinical supervisors, whose supervisory status was sti- pulated by the parties, have 24-hour responsibility for the nursing service divisions, schedule working days and hours for all employees in the nursing ser- vice divisions, and assign registered nurses to act as charge nurses. Based on such evidence, it appears that charge nurses do not exercise any real supervisory authority on behalf of management over employees. Rather, their duties are for the most part routine, involving the general direction of employees in the perfor- mance of their normal patient care duties and, as such, the charge nurses function more in the nature of lead persons. Even assuming that charge nurses may exercise some supervisory authority, the fact that they may do so only for a short period of time and on a sporadic basis would not require their ex- clusion from the unit. Accordingly, based on the evi- dence discussed above, we find that charge nurses are not supervisors within the meaning of Section 2(2) of the Act and we shall include them in the bar- gaining unit.10 The parties refused to stipulate as to the supervi- sory status of head nurses. The Employer claims that "all R.N.'s serve as either head nurses or charge nurs- es." The only evidence in the record concerning head nurses is that their duties, functions, and responsibili- ties are identical to those of charge nurses. In view of such evidence and in view of our finding above that charge nurses are not supervisors within the meaning of the Act, we find, for the above-stated reasons, that head nurses, like charge nurses, are not supervisors within the meaning of the Act. Accordingly, we shall include the head nurses in the bargaining unit. We conclude that a unit consisting of all registered nurses, including graduate nurses, charge nurses, and head nurses employed by the Employer, with the normal statutory exclusions, and excluding all other employees, is appropriate for the purposes of collec- 10 We note that the record indicates that some LPN's serve as charge nurses on the same basis and under the same circumstances and conditions as registered nurses. We find, for the reasons stated above, that LPN's who serve as charge nurses are not supervisors within the meaning of the Act. MEHARRY MEDICAL COLLEGE 491 tive bargaining and we shall direct an election there- in. In Case 26-RC-4980, the Petitioner seeks to repre- sent in a separate bargaining unit all business office clerical employees employed by the Employer. On the other hand, the Employer would include all of its clerical employees in the nonprofessional service and maintenance unit . For the reasons stated in Mercy Hospitals Sacramento, Inc., supra, and in Sisters of St. Joseph of Peace, supra, we find that business office clerical employees share a community of interest sep- arate and apart from other clerical employees in health care institutions whose work is more closely related to the functions performed by employees in the service and maintenance unit, and that such busi- ness office clericals are entitled to be represented in a separate bargaining unit. The Employer contends that its approximately 55 administrative secretaries should be excluded from the unit as confidential employees. The Petitioner leaves the matter of the unit placement of adminis- trative secretaries to the Board. The record shows that administrative secretaries work for the Employer's administrative assistants, who the parties stipulated are supervisors within the meaning of the Act, and whose duties are connected in some manner with the formulation and implementation of the Employer's labor relations policies. However, the record does not definitively discuss the actual role played by the administrative assistants in the formu- lation or implementation of labor relations policy or the specific duties performed by the administrative secretaries which would warrant our finding them to be confidential employees. See The B. F. Goodrich Company, 115 NLRB 722 (1956). Accordingly, as we are unable on the record before us to make a defini- tive finding as to the confidential status of the ad- ministrative secretaries , we shall permit them to vote subject to challenge. Accordingly, for the aforementioned reasons, we find that a unit consisting of all business office cleri- cal employees, excluding all other employees, is ap- propriate for the purposes of collective bargaining and we shall direct an election therein. Conclusion Upon the entire record and for the aforementioned reasons, we shall direct elections among employees in the following units which we have found to be appro- priate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act: UNIT A All full-time and regular part-time nonprofes- sional service and maintenance employees of Meharry Medical College, Nashville, Tennessee, including LPN's, aides, assistants, housekeeping employees, maintenance employees, linenroom employees, food service and dietary employees, technicians, inhalation and colbalt therapists, pharmacy aides, social service aides, interview- ers, matrons, teaching aides, PBX operators and nonbusiness office clerical employees ; excluding all professional employees, doctors and interns, faculty members , students, business office cleri- cal employees, guards and supervisors as de- fined in the Act. UNIT B All registered nurses, including graduate nurs- es, charge nurses, and head nurses employed by Meharry Medical College, Nashville, Tennessee; excluding all other employees , guards and super- visors as defined in the Act. UNIT C All business office clerical employees em- ployed by Meharry Medical College, Nashville, Tennessee ; excluding all other employees, confi- dential employees, guards-and supervisors as de- fined in the Act. [Direction of Elections and Excelsior footnote om- itted from publication.]