Trinity Memorial Hospital of Cudahy, Inc.

TRINITY MEMORIAL HOSPITAL OF CUDAHY 215 Trinity Memorial Hospital of Cudahy, Inc.' and Na- tional Union of Hospital & Health Care Employees, a Division of RWDSU, AFL-CIO, Local 1199W,2 Petitioner. Cases 30-RC-2410 and 30-RC-2411 July 17, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTIONS 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 Thomas Geidt of the National Labor Relations Board. On November 15, 1974, the Regional Direc- tor for Region 30 issued a Decision and Direction of Election in which he found appropriate a bargaining unit consisting of all service and maintenance em- ployees, technical employees, and licensed practical nurses employed by the Employer. Thereafter, in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for re- view of the Regional Director's Decision, together with a supporting brief and a request for oral argu- ment,3 asserting that the Regional Director erred in directing an election in a broad unit rather than in two separate units of licensed practical nurses and service and maintenance employees as sought by the Petitioner. On May 29, 1975, the National Labor Relations Board by telegraphic order granted the request for review and stayed the election pending a decision on review .4 The Board has reviewed the entire record in this case and makes the following findings: The Employer is a Wisconsin corporation engaged in the operation of a general and acute care nonpro- fit hospital in Cudahy, Wisconsin, employing ap- proximately 850 professional and nonprofessional employees. In Case 30-RC-2410, the Petitioner seeks to repre- sent a unit of licensed practical nurses at the Employer's facility. In Case 30-RC-2411, the Peti- tioner seeks a unit of all service and maintenance employees excluding licensed practical nurses, tech- nical employees, professional employees, clerical em- The Employer's name appears as amended at the hearing. 2 The Petitioner's name appears as amended at the hearing . Service and Hospital Employees International Union Local 150 was granted interven- tion with respect to the petitions, on the basis of sufficient showings of interest. 3 The Petitioner's request for oral argument is hereby denied as the record and the Petitioner's briefs, in our opinion , adequately present the issues and the positions of the parties. ° Members Kennedy and Penello dissenting. ployees, instructional employees, members of a reli- gious order, guards, and supervisors as defined in the Act.' On review, the Petitioner modified its position on the above units to include all of the Employer's technical employees in the former unit with licensed practical nurses. The Employer contends, however, that the only appropriate unit is one which includes all of its nonprofessional employees, including li- censed practical nurses and technical employees, ex- cluding office clerical employees and professional employees .6 The Intervenor took no position on the appropriateness of the requested units. For the reasons stated in our decisions in Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospital Center,' and St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc.,8 we find appropriate the Petitioner's requested unit of all service and maintenance em- ployees and a separate unit of all technical employ- ees including licensed practical nurses. In those cases, the Board majority held that in the health care industry licensed practical nurses share a community of interest with other technical employees and, when sought, should be included in an all-technical unit.9 In deciding which categories of employees are technical employees properly includable in such a technical unit, the Board majority, in Barnert, supra, adopted the following test: ... the kinds of employees we would include in the technical unit are those whose specialized training, skills, education and job requirements establish a community of interest not shared by other service and maintenance employees. This separate community of interest is frequently evi- denced by the fact that such employees are certi- fied, registered, or licensed. However, we also find employees may meet such standards with- out having been certified, registered, or licensed, and, if they do, we shall include them in the technical unit. Applying this standard to the facts in the instant case, we make the following findings concerning the composition of the above technical unit: 3 The record indicates that the Employer employs approximately 55 li- censed practical nurses and about 500 service and maintenance employees 6 The Employer agreed that the employees sought by the Petitioner in its requested service and maintenance unit properly belong in such unit but would expand the unit to include all licensed practical nurses and technical employees. 217 NLRB No. 132 (1975). '217 NLRB No. 133 (1975). 9 The Board majority defined "technical employees" as those "who do not meet the strict requirements of the term 'professional employee' as de- fined 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," citing Litton Industries of Maryland, Incorporated, 125 NLRB 722, 724 (1959). Barnert, supra 219 NLRB No. 63 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Licensed practical nurses: The record indicates that the licensed practical nurses employed by the Em- ployer are required to be licensed by the State of Wisconsin. The licensed practical nurses are also re- quired to complete a 1- or 2-year post high school specialized training course in an accredited school of practical nursing or in a hospital. The course in- cludes classroom as well as clinical training. The licensed practical nurses' duties include the administration of such treatments as sterile com- presses and catheterizations and such medications as oral pills and IM and IV injections. The record shows that licensed practical nurses also oversee the process of feeding infants during the first 24 hours after birth, decide when the baby is ready to be fed by its mother, provide relief and help in postsurgery recovery rooms, and take blood pressures, pulses, re- spiratories, and temperatures. The licensed practical nurses are paid at level 9 on the Employer's pay schedule.1° Based on the licensed practical nurses' training, li- censing, and job duties which require the use of inde- pendent judgment, we conclude that they are techni- cal employees. Operating room technicians: The Employer employs an undisclosed number of operating room techni- cians. Operating room technicians are required to be certified by the State and to complete a 1-year spe- cialized training course in a technical college or insti- tution as well as an unspecified amount of hospital training. The operating room technicians work exclusively in the operating room. They are responsible for pre- paring the surgery room for physicians and assisting the surgeons in various procedures. Their duties in- clude handing instruments and suture materials to the physicians or holding a refractor. In addition, they help clean rooms, wrap sterile supplies, and check supplies inventories. They are paid at level 9. Based on their specialized training, licensing, and job duties which, we find, reflect the use of indepen- dent judgment, we conclude that the operating room technicians are technical employees. Surgical assistants: The Employer employs seven surgical assistants whom the Petitioner would in- clude in the technical unit. The record establishes that surgical assistants must complete 2 to 4 years of college training and 6 months of hospital training. Surgical assistants work in the operating room, under the direct supervision of physicians and/or registered nurses performing such procedures as suturing and the suctioning of blood or fluid. They are paid at level 14. We find that the surgical assistants are technical employees. Although they are not licensed, certified, or registered, the record establishes that they are re- quired to complete specialized training courses and that their job duties are of a technical nature reflect- ing the use of independent judgment. Physical therapy assistants: The Employer employs two physical therapy assistants. Physical therapy as- sistants are required to complete 2 years of study at a technical institute which includes courses in medical terminology, basic anatomy, basic psychology, thera- peutic exercises, and basic application of physical modalities used in physical medicine. The physical therapy assistants work in the physi- cal therapy department, under the direct supervision of the registered physical therapist," and are directly involved in the administration of such procedures and applications as hydrocollator packs, infrared modalities, Hubbard tanks or whirlpool baths, thera- peutic exercises for paralyzed limbs, and electrical stimulation to nerves and muscles. The physical ther- apy assistants are paid at level 11. Although the physical therapy assistants are cur- rently certified, the record indicates that a new certi- fication requirement for physical therapy assistants is currently pending in the State of Wisconsin and, when enacted, all of the Employer's physical therapy assistants will be required by the State to take and pass an examination prior to becoming certified. In light of the educational requirements for this position, the forthcoming state licensing require- ments, and the nature of the duties performed by physical therapy assistants which reflect the use of independent judgment, we find that the physical therapy assistants are technical employees. Respiratory therapy department: The Employer em- ploys graduate and certified technicians and gradu- ate and certified therapists in the respiratory therapy department. The graduate technicians are paid at level 10 and are required to complete a 1-year program approved by the American Medical Association (AMA) in respiratory therapy at either a school or a training hospital. The certified technicians, who are paid at level 12, must satisfy the requirements for graduate technicians, and, additionally, must com- plete a 1-year internship in respiratory therapy under the supervision of a medical director and pass a na- tional certification examination. The graduate thera- pists, paid at level 15, are required to complete a 2- year AMA-approved college-based program leading to an associate degree in respiratory therapy. The certified (registered) therapists, who are paid at level 15, are required to complete all of the requirements 11 The parties stipulated that the registered physical therapist is a profes- 10 The Employer's pay schedule has 29 levels . sional employee within the meaning of Sec. 2(12) of the Act. TRINITY MEMORIAL HOSPITAL OF CUDAHY for graduate therapists and, additionally, to complete a 1-year internship in respiratory therapy under the administration of a medical director and take and pass a national written and oral examination.'2 The record indicates that all of the above individu- als work exclusively in the respiratory therapy de- partment and perform technical duties involving var- ious respiratory therapy procedures and equipment, treating such ailments as respiratory arrests and car- diac arrests. The record further indicates that any differences in the respective duties and responsibili- ties of the above individuals are essentially a matter of degree, related to the criticalness of a patient's condition, the type of illness involved, and the so- phistication of the equipment required. In view of the formal training and certification re- quired of certified technicians and certified thera- pists, and the technical nature of the duties per- formed by them which reflect the use of independent judgment, we find that the certified technicians and certified therapists are technical employees. We also find that the graduate technicians and graduate ther- apists are technical employees, despite the absence of any certification, licensing, or registration, in view of their formal specialized education and the technical nature of their duties, which are identical to those of certified technicians and certified therapists and which likewise reflect the use of independent judg- ment. Radiology department technologists: The Employer employs approximately 37 or 38 technologists in its radiology department including chief technologists, quality control technologists, special procedure tech- nologists, staff technologists, therapy technologists, and nuclear medicine technologists. These technolo- gists are paid at salary levels 10, 12, and 13, depend- ing on their particular position. All of the technolo- gists are required to complete a 2-year training program in radiology in an AMA-approved school which includes classroom as well as practical train- ing. There is no State licensing requirement for tech- nologists. The technologists' primary function is to take X- rays of patients brought to the department. The rec- ord also indicates that the technologists take X-rays in other areas of the Employer's hospital as well, in- cluding the emergency room, surgery room, wards, and patients' rooms. The record further indicates that in the performance of their job duties, the tech- nologists are required to exercise independent judg- ment in the selection of the various types of X-rays taken, the position for such X-rays, and the number 12 The record shows that there are 12 graduate technicians , 10 to 12 certi- fied technicians, 12 graduate therapists, and 6 certified therapists employed in the Employer's respiratory therapy department. 217 of pictures required for each patient. We find that the radiology department technolo- gists are technical employees based on their work du- ties, which entail the exercise of independent judg- ment, and on the specialized educational requirements for the job. The Employer operates a radiology technologist training program accredited by the American Col- lege of Radiology in connection with the American Hospital Association and the American Society of Radiologic Technologists. Sixty percent of the Employer's radiology technologists are graduates of the Employer's school. The training program is of 2 years' duration and includes on-the-job training and a minimum of 400 hours of classroom training. The Petitioner and the Employer agreed that the students at the Employer's radiology school are em- ployees, the Petitioner contending that they should be included in the technical unit and the Employer contending that they should be included in the ser- vice and maintenance unit. The record indicates that the students receive a lump sum stipend from the hospital and receive the same benefits as all hospital employees. They are required to work 40 hours per week performing such duties as escorting patients to and from the radiology department, the emergency room, and other various areas in the hospital. Most of the students do not remain in the Employer's em- ploy after they graduate. Whether or not they do re- main depends on the number of openings at the time of graduation. The record indicates that generally only one or two students are hired by the Employer after graduation. Based on the above evidence, we conclude that the radiology school students are not technical employ- ees. They perform nontechnical functions, which other service and maintenance employees also per- form,13 and, although they are in the process of re- ceiving formal training in more complex skills, the record does not indicate that their regular work du- ties are, during their employ with the Employer, of a technical nature. Pathology department: The Employer employs both registered and nonregistered technicians in its pa- thology laboratory. There are 14 laboratory techni- cians who have completed a 2-year pathology pro- gram at a technical college or institute. They perform laboratory tests, under the exclusive direction of technologists and pathologists,14 and exercise some interpretive duties within their supervised range. The laboratory technicians also assist technolgists in 13 The Employer and the Petitioner agreed that escorts should be included in the service and maintenance unit. 14 The parties stipulated that the approximately 43 registered technolo- gists and pathologists are professional employees within the meaning of Sec. 2(12) of the Act. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teaching assignments to students, diagnose the cause of malfunctioning scientific instruments, and repair them. They are paid at level 12. The Employer also employs five laboratory aides, paid at level 10, who have completed a year of post high school in-service scientific training. They per- form simpler laboratory procedures, such as gross urine examinations and drawing blood, under the su- pervision of the technologists and the testimony is uncontroverted that in the performance of their job duties, the laboratory aides exercise some interpre- tive responsibilities. There are four tissue technicians paid at level 13, who may be registered by the American Society of Chemical Pathologists and who have completed the requirements therefore which include a year of for- mal training in a hospital or university and passing an examination. There are also two registered cyto- technicians, paid at level 16, who have completed 2 years of college training and 1 year of hospital train- ing in exfoliative cytology. The cyto-technicians' job duties include the examination of pap smears. The Employer also employs four histo-technicians, paid at level 13, who have similar technical training and per- form work similar to that of the cyto-technicians. We conclude that the laboratory technicians and laboratory aides are technical employees based on their specialized training and the technical nature of their job duties, which in our opinion includes the use of sufficient independent judgment so as to ren- der them technical employees. We also conclude that the tissue technicians, cyto-technicians, and histo- technicians are technical employees on the basis of their training, registration, and job duties, which we find involve the exercise of independent judgment.15 EKG technicians: The wage level for this position is 9. The Employer has no requirements of post high school education or formal training for this position. There is no licensing requirement for EKG techni- cians by the state or Federal government, nor is there any private agency which certifies or registers EKG technicians. After being hired by the Employer, em- ployees employed as EKG technicians do not receive any formalized education or training; rather they re- ceive 3 to 6 months of informal on-the-job training. Although EKG technicians administer the EKG tests, the procedure for doing so is routine and they make no determinations or interpretations of test re- sults. Based on the above evidence, we conclude that is The Petitioner seeks to include laboratory runners in the technical unit. The record establishes, however, that the laboratory runners are seniors in high school, receive only on-the-job nonscientific training, are paid at level 3, and perform "very simple, primitive tasks." On the basis of such evidence, we find that the laboratory runners are not technical employees and are properly part of the service and maintenance unit. EKG technicians are not technical employees. Their work requires little, if any, independent judgment; they receive no specialized training in order to per- form their duties; and they are not certified, licensed, nor registered by any school, governmental body, or private organization. 16 EEG technician/secretary: The EEG technician/ secretary prepares patients for and administers elec- troencephalograms and also performs typing and fil- ing work in the EEG department. The incumbent in this position received on-the-job training and has not taken or passed any examinations leading to registra- tion in EEG technology and the record does not indi- cate that the incumbent has any plans to do so. Based on the above evidence, we conclude that the EEG technician is not a technical employee. As with the EKG technician, the work requires no indepen- dent judgment, there is no specialized training need- ed to perform the job, and there is no requirement that the EEG technician be certified, licensed, or reg- istered. In addition, it appears from the record that a substantial portion of this individual's job duties con- sist of the performance of hospital clerical functions which would indicate that this individual may pos- sess more of a community of interest with service and maintenance employees." Obstetrics technician: The Employer employs five obstetrics technicians who are paid at level 7. These individuals have no previous experience and receive on-the-job training consisting of seven 1-1/2-hour lectures and three or four films. The record indicates that they function as "a pair of hands" and their du- ties include assisting in the admittance of labor pa- tients, setting up the delivery room with proper equipment, and handing instruments to a physician. After delivery, they wash up the patient, under the supervision of a registered nurse, and return the pa- tient to her room. Based on the above evidence, we find that obstetrics technicians are not technical em- ployees. They receive no special training, are not reg- istered, licensed, or certified, and are not required to 16 The Petitioner contends that the EKG department supervisor should be included in the technical unit . However, the record does not indicate the extent to which this individual's job duties and responsibilities differ from those of the EKG technician whom we have found not to be a technical employee . Nor does the record make clear whether this individual exercises any supervisory authority as defined in the Act Accordingly, we shall per- mit the EKG supervisor to vote subject to challenge. 17 The Petitioner would include the chief EEG technologist in the techni- cal unit. The record indicates that the incumbent in this position has a B.S. degree in psychology and has completed a 2-month training course in ence- phalography. In addition, the record indicates that this individual has taken and passed a "Board" examination in EEG technology. However, the rec- ord does not indicate which "Board" administered the exam and if registra- tion or certification ensued from passing the exam . Nor does the record discuss the specific duties and responsibilities of the chief EEG technologist. Accordingly, in view of the incomplete state of the record concerning the specific supervisory duties and responsibilities , if any, exercised by the chief EEG technologist or the extent to which his work may be of a technical nature, we shall permit the incumbent to vote subject to challenge. TRINITY MEMORIAL HOSPITAL OF CUDAHY 219 exercise independent judgment in the performance of their duties. Other employees: The record indicates that the Em- ployer employs nursing assistant aides, ward clerks, physical therapy aides, occupational therapy techni- cians, radiology department aides, clerks, and secre- taries and a secretary in the respiratory therapy de- partment, all of whom do not and are not required to possess any special education or training, are paid at the lower wage levels, and do not exercise significant independent judgment in the performance of their duties which are primarily routine in nature. We con- clude, therefore, on the basis of the above evidence, that the above employees are not technical employ- ees. Based on the foregoing, we find that the following groups of employees constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: Case 30-RC-2410: All full-time and regular part- time technical employees including licensed practical nurses, operating technicians, surgical assistants, physical therapy assistants, graduate technicians, cer- tified technicians, graduate therapists, certified thera- pists, radiology technologists, laboratory technicians, laboratory aides, tissue technicians, and cyto-techni- cians and histo-technicians, but excluding business office clerical employees, service and maintenance employees, professional employees, members of a re- ligious order, guards, and supervisors as defined in the Act. Case 30-RC-2411: All full-time and regular part- time service and maintenance employees, excluding all technical employees, professional employees, business office clerical employees, members of a reli- gious order, guards, and supervisors as defined in the Act. [Direction of Elections 18 omitted from publica- tion.] 19 MEMBERS KENNEDY and PENELLO, dissenting: For the reasons set forth in our dissent in Barnert Memorial Hospital Center,20 and in our respective dis- sents in St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin, Inc.,21 we disagree with our colleagues' finding that a unit of all technical em- ployees including licensed practical nurses is appro- priate. In our judgment, the granting of a separate unit for technical employees including licensed prac- tical nurses is contrary to the congressional mandate to avoid undue proliferation of bargaining units in the health care industry.22 Mindful of the clear man- date from Congress to establish broad units in the health care industry, we would require all technical employees including licensed practical nurses to be included in a broad service and maintenance unit 23 Accordingly, we would dismiss the petition in Case 30-RC-2410 and direct an election in Case 30-RC-2411 in an overall unit of service and mainte- nance employees including technical employees and licensed practical nurses. 18 As the unit found appropriate in Case 30-RC-2410 is broader than that originally petitioned for by the Petitioner, the Regional Director shall de- termine whether its showing of interest is sufficient before proceeding with the election. 19 (Excelsior footnote omitted from publication I 30217 NLRB No 132 (1975). 21217 NLRB No. 133 (1975). 22 In both the House and Senate reports concerning the health care amendments, Congress expressly approved of the Board's decision in Exten. dicare 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. (1974); H. Rept. 93-1051, p. 7, 93d Cong, 2d sess. (1974). 23 See Member Penello's separate concurring opinion in Mount Airy Foun- dation, d/b/a Mount Airy Psychiatric Center, 217 NLRB 137 (1975). Member Kennedy reiterates the view expressed in his dissents in Extendi- care of West Virginia and Mt. Airy Foundation that where there is no history of collective bargaining, a comprehensive unit of nonprofessional employees should not be splintered into separate units when the only union involved seeks to represent both groups.