The Mental Health and Family Services Center

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Clark County Mental Health Center, d/b/a The Mental Health and Family Services Center and Of- fice & Professional Employees Union, Local No. 11, AFL-CIO, Petitioner. Case 36-RC-3577 July 29, 1976 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 9, 1976, the Regional Director for Re- gion 19 issued his Decision and Direction of Elec- tions in the above-entitled proceeding in which he directed elections among three groups of employees at the Employer's Vancouver, Washington, facility: (A) "all professional employees," including psychol- ogy interns,' (B) "all nonprofessional clinical em- ployees," which includes, among others, three clini- cal assistants hired pursuant to the Federal Compre- hensive Employment and Training Act of 1973 (referred to herein as CETA employees), and (C) "all office clerical employees." In his decision the Re- gional Director permitted the sole psychiatrist em- ployed on the date of the hearing to vote subject to challenge in the professional voting group. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Reg- ulations, Series 8, as amended, the Employer filed a timely request for review on the grounds, inter alia, that in including the psychology interns in the pro- fessional voting group, permitting the psychiatrist to vote under challenge, and including the CETA em- ployees in the nonprofessional voting group rather than finding them ineligible the Regional Director departed from officially reported Board precedent. By telegraphic order dated February 11, 1976, the National Labor Relations Board granted the Em- ployer's request for review and stayed the elections pending decision on review. Thereafter, the Employ- er filed a timely brief on review. 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 considered the entire record in this case, including the Employer's brief on review, with respect to the issues under review, and makes the following findings: Psychology Interns: The Employer provides psy- chological treatment for individuals in the Vancou- ver, Washington, area and on its professional staff employs psychologists, psychiatric social workers, a mental health specialist, and psychology interns and utilizes the services of one or more psychiatrists. The Regional Director included the three psychology in- terns in the professional voting group, as requested by the Petitioner, relying largely on the definition of professional employees in Section 2(12)(b)(ii) of the Act which includes persons who have "completed" their studies and who perform related work under the supervision of other professional employees. The Employer urges their exclusion on the ground that the interns are enrolled in degree programs and their employment is part of the requirement for their de- grees. The Employer asserts that the Board has ex- cluded such students, finding their employment inci- dental to their educational objectives. We find merit in the Employer's contention. As found by the Regional Director, the record es- tablishes that the three interns are candidates for Ph. D. degrees and are each serving a 1-year internship in clinical psychology which commenced on or about September 1, 1975, and which is a prerequisite to ob- taining that degree. The interns perform duties simi- lar to those of other members of the Employer's pro- fessional staff but are subject to closer supervision. In this regard, the Employer testified that the interns' supervisors perform a "teaching function" vis-a-vis the interns 2 and that the supervisors' evaluations of the interns' performance are forwarded to the in- terns' respective schools. The interns' evaluations dif- fer from those of clinical assistants and therapy per- sonnel. The interns receive a monthly stipend whereas the Employer's staff psychologists receive a substantially greater salary. The record reveals that, upon the completion of their internships, at least two of the interns must return to their schools to satisfy other requirements for their degrees. There is no evi- dence that the interns intend to establish an employ- ment relationship with the Employer upon obtaining their doctoral degrees. We conclude, on the basis of the facts herein, that although the psychology interns perform functions similar to those of other staff personnel the purpose of their relationship with the Employer is essentially an educational one, as their internship is necessary for them to achieve their academic goals. Thus, we find that the interns do not fall within the ambit of Section 2(12) of the Act. Rather, we view their status as being analogous to that of graduate teaching and research assistants whom the Board has excluded from professional faculty units at colleges and uni- 1 In the event a majority of the professional employees vote for inclusion 2 The record shows that the interns work under all available supervisors in the same unit as the nonprofessional employees, they will be so included on a rotating basis 225 NLRB No. 105 THE MENTAL HEALTH AND FAMILY SERVICES CENTER versities.3 We conclude therefore that the psychology interns are primarily students and we shall exclude them from the professional voting group.4 Psychiatrist: On the date of the hearing a single psychiatrist was employed as part of the Employer's professional staff. However, the Regional Director found and the record shows that his continued em- ployment was in doubt as of that time and that the Employer contemplated obtaining the services of one or more psychiatrists on a contract basis with a firm of psychiatrists. In its brief, the Employer states that the psychia- trist employed as of the hearing date terminated his employment in December 1975 and since that time it has contracted with psychiatrists who are not its em- ployees. The Petitioner seeks to represent in its re- quested professional unit any psychiatrists who are employed on a regular basis; it does not seek to rep- resent psychiatrists who may be employed on a con- tract basis. The Regional Director in his decision concluded that any psychiatrists working at the time of the election be permitted to vote under challenge. In the circumstances, as the Employer's previous psychiatrist has apparently terminated his employ- ment and as there is no record testimony regarding the employment status of any psychiatrists being uti- lized by the Employer, we affirm the Regional Director's conclusion that any psychiatrists em- ployed on the date of the election be permitted to vote under the challenge procedure. CETA employees: As previously indicated, the Em- ployer employs three individuals as clinical assistants under a federally funded program designed to foster training and employment of unemployed and under- employed disadvantaged persons. The Regional Di- rector included these individuals in the requested nonprofessional unit, finding insufficient evidence upon which to conclude they have a community of interest separate and apart from other nonprofes- sional clinical employees. The Employer urges that their exclusion is mandated under Board precedent which holds that persons similarly employed in Gov- ernment programs and whose tenure is controlled by the Government are not included in units with other employees.' We agree that the CETA employees should be ex- cluded from the nonprofessional voting group. Al- though the individuals employed under the CETA 3 Adelphi University, 195 NLRB 639 (1972), College of Pharmaceutical Sci- ences in the City of New York, 197 NLRB 959 (1972) Cedars-Sinai Medical Center, 223 NLRB 251 (1976), The Buffalo General Hospital, 224 NLRB No 17 (1976). 5 Roane-Anderson Company, 95 NLRB 1501 (1951) 781 program apply directly to, and are hired by, the Em- ployer, the record establishes that CETA sets the eli- gibility standards for selection of such persons and gives final approval of any employees hired under its auspices only after a conference between the Em- ployer and the local CETA coordinator. The record reveals that CETA maintains a list of categories of persons to whom participating employers must give hiring preference, e.g., minorities, veterans, exoffend- ers, etc. CETA employees are paid by the Employer with Federal funds disbursed by the local county CETA administration. CETA funding is handled on a contract basis for a specific period of time. The record reveals that the funding for one CETA em- ployee was scheduled to end in June or July 1976. There is no evidence that CETA funding for any of the individuals currently employed under the pro- gram will be renewed or that such persons will be retained in the Employer's employ in the event fund- ing is terminated. The Employer makes withholdings for tax purpos- es and pays social security for the CETA employees. They receive the same benefits as other employees but can utilize a special grievance procedure under the CETA program once they have exhausted the Employer's grievance machinery. This grievance pro- cedure, not available to the Employer's regular em- ployees, provides for several appeals and ultimately a formal appeal to the United States Department of Labor which could result in a determination regard- ing the CETA employees' status adverse to the Em- ployer. On the basis of the record facts regarding the indi- viduals hired under the CETA program, particularly their access to a special grievance procedure and the limited duration of the funding for them, we con- clude that the individuals employed under the CETA program do not share a sufficient community of in- terest with other nonprofessional employees to war- rant their inclusion in that voting group and we here- by exclude them.6 Accordingly, we remand the case to the Regional Director for the purpose of conducting the elections pursuant to his decision as modified herein, except that the payroll period for determining eligibility shall be that ending immediately before the date of this Decision on Review. [Excelsior footnote omitted from publication.] 6 Member Jenkins would affirm the Regional Director's inclusion of these employees in the voting group, for there is no record evidence that, as a result of the facts set forth above, these particular employees have a differ- ent set of working conditions or community of interest apart from the other employees