Community Health Services

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Community Health Services, Inc. and Federation of highest level. One MHW is classified in Grade IV, Community Health Professionals, a/w Maine four within Grade III, four within Grade II, and Federation of Teachers, Nurses and Health Pro- three within Grade I. For employment as a Grade fessionals, AFT-AFL-CIO, Petitioner. Case 1- I MHW-the entry level position-the Employer RC-17139 prefers, but does not require, that an employee November 20, 1981 have a bachelor's degree, although any employee lacking a degree must be working actively toward DECISION ON REVIEW AND one. To be eligible for classification in Grades II CERTIFICATION OF and III, an MHW must possess a bachelor's degree REPRESENTATIVE and 1-2 and 2-3 years of paid, related experience, respectively. MHWs eligible for Grade IV must BY MEMBERS FANNING, JENKINS, AND possess a bachelor's degree in the human services field and 3-4 years of paid, related experience. Of On April 3, 1981,' the Regional Director for the 12 MHWs currently employed, 1 has a master's Region 1 issued a Supplemental Decision, in degree and 10 have bachelor's degrees. Most hold- which, inter alia, he overruled the challenges to the ers of bachelor's degrees majored in human serv- ballots of the Employer's 12 mental health workers ices disciplines, such as psychology, social work, or (MHWs) finding them to be professional employees sociology, although some MHWs hold degrees in within the meaning of Section 2(12) of the Act.2 music education, music, or English. MHWs with Thereafter, the Employer filed a timely request for little or no prior experience or relevant education review of the Regional Director's Supplemental background receive on-the-job training. Additional Decision contending, inter alia, that the 12 MHWs in-service training programs are available to were improperly included in the professional unit MHWs, although attendance is not mandatory. 3 as they are technical employees. MHWs are not licensed by the State of Maine, nor By telegraphic order dated June 26, the Employ- are they registered or certified by any national or er's request for review was granted solely with re- state professional organization. spect to the Regional Director's disposition of the MHWs (1) provide assistance to clients through challenged ballots. counseling in problem solving, (2) determine Pursuant to the provisions of Section 3(b) of the whether clients may be in need of professional National Labor Relations Act, as amended, the Na- treatment and, if necessary, refer them to psychia- tional Labor Relations Board has delegated its au- trists or psychologists, (3) plan and participate in thority in this proceeding to a three-member panel. group therapy sessions along with other employees The Board has reviewed the entire record in this of the Employer, and (4) confer with clients' psy- proceeding and finds the following: The Employer chiatrists and with public or private agencies with is a provider of community health and home health which clients may be involved. MHWs do not pro- care services, with offices in various communities vide psychoanalysis or any form of mental health in the State of Maine. The Petitioner seeks to rep- treatment which would be provided by a psychia- resent all full-time and regular part-time profession- trist or psychologist. MHWs spend approximately al employees employed by the Employer at its var- 65 percent of their working time meeting with cli- ious locations, including MHWs. The Employer as- ents in their homes, and are not closely supervised serts that MHWs are technical employees who through either direct observation of their counsel- should be excluded from the unit. ing of clients or review of their reports and client The Employer employs 12 MHWs, who are clas- records. sified in 4 grade levels, with Grade IV being the Based on the above facts, and noting in particu- lar the Employer's education requirements for Unless otherwise noted, all dates hereinafter are in 1981. lar the Employer's education requirements for ' On February 6, the Acting Regional Director for Region I issued a MHWs and their background, the Regional Direc- Decision and Direction of Election in this proceeding, directing an elec- tor found that MHWs are professional employees tion among all of the Employer's professional employees including under Section 2(12) of the Act. In its request for MHWs. Thereafter, the Employer filed a timely request for review on the grounds, inter alia, that the Acting Regional Director erred in finding review, the Employer contends that the Regional that MHWs are professional employees. By telegraphic order dated Director has misapplied the Board's criteria for de- March 2, the Board denied the Employer's request for review but amend- ed the Decision and Direction of Election to permit MHWs to vote sub- ermining professonal status, 4 and that this case is ject to challenge. On March 6, the election was conducted, and the tally of ballots shows ' The in-service education programs include periodic lectures, monthly that the Petitioner received 27 votes, 23 votes were cast against the Peti- group meetings where employees discuss their work among themselves, tioner, and 12 ballots (cast by MHWs) were challenged. Thereafter, on and partial tuition reimbursement for job-related courses. March 13, the Employer filed timely objections to the election which 'Sec. 2(12)(a) of the Act defines "professional employee" as: were overruled by the Regional Director in his Supplemental Decision. Continued 259 NLRB No. 45 COMMUNITY HEALTH SERVICES 363 governed by the Board's decision in Butler Hospi- guishable from the mental health workers in Butler, tal,5 wherein the Board found mental health work- whom we found to be technical employees.7 ers to be technical employees. Here, as in Butler, Accordingly, we shall exclude MHWs from the entry-level mental health workers are only encour- unit of professional employees and sustain the chal- aged, not required, to possess a bachelor's degree lenges to their ballots. As the tally shows that the as a condition of employment, and there is no re- Petitioner received a majority of the valid ballots quirement that mental health workers holding such cast, we shall issue the following certification. degrees have had academic training in an employ- ment-related discipline. In fact, a number of the REPRESENTATIVE Employer's MHWs possess degrees in subjects to- tally unrelated to employment duties. New employ- It is hereby certified that a majority of the valid ees here and in Butler receive on-the-job and in- ballots have been cast for Federation of Communi- service training; indeed, the 3- to-4-month orienta- ty Health Professionals, a/w Maine Federation of tion program required for new employees in Butler Teachers, Nurses and Health Professionals, AFT- appears to be more extensive than that required by AFL-CIO, and that, pursuant to Section 9(a) of the Employer here. In neither case does the Em- the National Labor Relations Act, as amended, the ployer require its mental health workers to be li- said labor organization is the exclusive representa- censed or certified. Moreover, the Employer's tive of all the employees in the following appropri- MHWs perform duties virtually identical to those ate unit for the purposes of collective bargaining performed by Butler Hospital's mental health with respect to rates of pay, wages, hours of em- workers. They "observe, report and record the [cli- ployment, and other terms and conditions of em- ent's] behavior, activity, and his physical and emo- ployment: tional condition . . . [and] develop therapeutic in- All full-time and regular part-time professional terpersonal relationships with [clients] by engaging employees employed by the Employer at its the [client] in therapeutic discussion." 6 In addition, various locations within the State of Maine, in- they assist professional staff in obtaining informa- cluding registered nurses, graduate nurses, tion from the client, but do not engage in psycho- physical therapists and occupational therapists, therapy or other types of treatment normally per- but excluding all other employees, licensed formed by professional psychologists or psychia- practical nurses, VD epidemiologists, outreach trists. Therefore, in terms of their academic qualifi- workers, home health aides, mental health cations, training, lack of licensure or certification, workers, office clerical employees, guards and and duties, the Employer's MHWs are indistin- supervisors as defined in the Act. 'The Acting Regional Director, in his Decision and Direction of Elec- tion, considered the Employer's contention that Butler was controlling (a) any employee engaged in work (i) predominantly intellectual but found it distinguishable in that here, unlike Butler. (1) all MHWs and varied in character as opposed to routine mental, manual, me- above the entry-level position are required to hold college degrees, (2) chanical, or physical work; (ii) involving the consistent exercise of most MHWs possessed degrees in the human service field, and (3) discretion and judgment in its performance; (iii) of such a character MHWs appear to receive less supervision and exercise greater discretion that the output produced or the result accomplished cannot be stand- and independent judgment in the performance of their work. However, ardized in relation to a given period of time; (iv) requiring knowl- the record indicates that the duties and jobfunctions of the MHWs here edge of an advanced type in a field of science or learning customar- and in Butler and the manner in which they are performed re substan- ily acquired by a prolonged course of specialized intellectual instruc- tially the same. Moreover, although the Employer requires a bachelor's tion and study in an institution of higher learning or a hospital, as degree for MHW II, 111, and IV, such degree does not have to be ape- distinguished from a general academic education or from an appren- cialized. Besides, the possession of a college degree does not necessarily ticeship or from training in the performance of routine mental, establish professional status (see Binghamton Press Company. Inc., 226 manual or physical processes. . . NLRB 808. 809-810 (1976). Accordingly, we find that these factors are 250 NLRB 1310 (1980). insufficient to establish that the Employer's MHWs are professional em- 'Id at 1310-11. ployees.