Mary Thompson Hospital, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mary Thompson Hospital, Inc. and Hospital Employ- ees Labor Program of Metropolitan Chicago, Peti- tioner. Case 13-RC-14910 May 22, 1979 DECISION ON REVIEW BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On December 22, 1978, the Regional Director for Region 13 issued his Decision and Direction of Elec- tion en the above-entitled proceeding, in which he directed a self-determination election in a voting group from which he excluded the unrepresented technical employees. Thereafter, in accordance with the National Labor Relations Board Rules and Regu- lations, Series 8, as amended, the Employer filed a timely request for review, contending, inter alia, that such exclusion was inappropriate as the unit currently represented by the Petitioner includes some techni- cals. The Petitioner opposed review. By telegraphic order dated January 24, 1979, the National Labor Relations Board granted the request for review as to the scope of the voting group, de- ferred ruling as to all other issues, and stayed the election pending decision on review. Thereafter, Re- spondent Employer filed a motion to consolidate the instant case with Case 13-CA-18147 pending before the Board on a Motion for Summary Judgment on the ground that both cases involve common and over- lapping issues concerning the scope of the voting group, comprised of certain of the Hospital's nonpro- fessional employees.' The Petitioner herein opposed such motion. Both parties filed briefs 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 with respect to the issues under review,2 includ- J The Regional Director took official notice of (1) regional records pertain- ing to this Employer; (2) Case 13-RC-14798, pursuant to which the Interna- tional Union of Operating Engineers Local 399, AFL-CIO, was certified on September 15, 1978, as representative of all the Employer's licensed station- ary engineers; and (3) Case 13-CA-18147, in which the Respondent Em- ployer is charged with violating Sec. 8(a(I) and (5) for refusing to honor such certification. On the basis of the foregoing, the Regional Director de- nied the Employer's request that the stationary engineers be included in the voting group in the instant case. The Employer requested review of such exclusion and reconsideration of the record in the underlying representation case. We hereby deny these requests and the motion for consolidation. The question of the propriety of the certified unit of stationary engineers is with- out bearing on the issues before the Board in the instant case: all represented employees are excluded from the voting group found appropriate for self- determination. 2 Specifically, the scope of the voting group. The request for review is hereby denied as to all other issues raised, with all reservations noted else- where in this Decision. See fns. , 3. 12, and 13. ing the submissions of the parties, and finds that the appropriate voting group under the circumstances in this case must include all of the Employer's unrepre- sented technical employees3 for the following reasons: The Employer is a nonprofit health care institution in Chicago, Illinois. In 1972, the Employer and Hos- pital Employees Labor Program of Metropolitan Chi- cago (hereinafter the Petitioner or H.E.L.P.) entered into a private election agreement which resulted in H.E.L.P. being elected as the collective-bargaining representative of some of the Employer's service and maintenance employees and all of its licensed practi- cal nurses (LPNs). This unit now consists of approxi- mately 135 of the Employer's 440 employees. The Pe- titioner filed the instant petition seeking to represent in a residual unit, or, alternatively, have a self-deter- mination election among, a group consisting of all unrepresented service and maintenance employees 4 and all business office clericals,5 but excluding all the unrepresented technical employees. The Regional Di- rector found that the proposed residual unit would not be appropriate, but that the petitioned-for em- ployees and all business office clericals would consti- tute an appropriate voting group for a self-determina- tion election. Thus, the Regional Director found it unnecessary to include the unrepresented technical employees in the voting group, notwithstanding the fact that LPNs are included in the existing unit. The Regional Direc- tor reasoned that the technical employees may consti- tute an appropriate unit and properly be excluded because they have been omitted since 1972 from the historical bargaining unit which included LPNs. In support of the above, the Regional Director placed reliance on Bay Medical Center, Inc.,6 where the Board held that a separate bargaining history for I In view of this determination, we find it unnecessary to determine whether or not the Regional Director correctly determined that the following excluded classifications are technical employees: respiratory technicians and registry eligible respiratory therapists; X-ray technicians I and II; medical lab technician (registered) and medical lab technicians (eligible). In either event, they are eligible to vote in the election we direct herein. ' We are unable to determine whether the only maintenance employees in issue are stationary engineers currently represented by the Operating Engi- neers Local 399, AFL-CIO. I The parties stipulated to the inclusion of all business office clericals in the voting group. 6 218 NLRB 620 (1975) (Members Kenned) and Penello dissenting). We repeat here that the Board in that case carefully stated that it wished "to reiterate that our exclusion of LPNs from this technical unit is restricted to the facts of this particular case." In that case, inclusion of represented LPNs with other technicals in the requested technical unit would have required upsetting an existing bargaining relationship with the LPNs' separate bar- gaining representative while inclusion of the unrepresented LPNs would have had the "anomalous effect of fractionalizing the representation of the LPNs." Bay Medical Center is not apposite precedent for the exclusion of other technicals from a unit which includes LPNs with service and mainte- nance employees represented by the same labor organization seeking to en- large the existing unit. Rather, the exclusion of other technical employees in the present situation has the anomalous effect of perpetuating the fractional- ization of the representation of technicals, analogous to the anomaly the Board tried in that case to avoid. 242 NLRB No. 83 440 MARY THOMPSON HOSPITAL, INC. LPNs justified finding appropriate a unit of technical employees excluding LPNs, and also cited St. Joseph Hospital & Medical Center,7 where the Board indi- cated that it would not disturb bargaining units estab- lished by the parties before the 1974 health care amendments so long as they did not contravene the Act or established Board policy. In conclusion, he stated that "[w]ith respect to the other [excluded] technical employees, there is no history of collective bargaining or other factors upon which to justify their inclusion with the service and maintenance employ- ees," and rejected the Employer's arguments based on the lack of any separate and distinct community of interest of these technical employees.' The Employer contends, inter alia, that the Re- gional Director failed properly to apply Board prec- edent with respect to self-determination elections and that such precedent mandates the inclusion of all un- represented employees who qualify for inclusion in the unit sought to be perfected and, at a minimum, requires the voting group to be coextensive with the existing unit. We agree. The determinative factor here is the appropriateness of the unit possibly perfected through the addition of the voting group. To be ap- propriate, the voting group must at least include all unrepresented employees of the same type or cate- gory included in the existing unit so that their addi- tion would "complete" or "correct" the existing unit so as to bring it into conformity with some unit which the Board would find appropriate for the health care industry. 9 In the circumstances here, because the ex- '219 NLRB 892 (1975). In the instant case, the issue is not, as it was in St. Joseph, supra, whether the present bargaining unit is appropriate, but rather whether the voting group sought to be added by the Petitioner is appropri- ately constituted. s The Regional Director cited Nathan and Miriam Barnert Memorial Hos- pital Association d/b/a Barnerr Memorial Hospital Center, Inc., 217 NLRB 775 (1975) (Members Kennedy and Penello dissenting). In the instant case the issue is not, as it was in Barnert, whether all technical employees share a separate community of interest from those shared by service and mainte- nance employees but rather whether the unrepresented technicals have a greater community of interest with one another than they have with the Employer's represented technical employees. Barnert is not precedent for excluding technicals despite the critical presence of LPNs in the existing unit. See SI. Luke's Hospital, 234 NLRB 130 (1978), holding that similarly unrep- resented technical employees do not constitute a "different category" from that employer's represented technicals, including LPNs. 9 We regard this requirement as consistent with our refusal to approve most "residual" units in this industry and with our suggestions as to accept- able alternatives in such cases as Levine Hospital of Hayward. Inc.. 219 NLRB 327, 328 (1975), and McKeesport Hospital, 220 NLRB 1141, 1142 (1975). Such a requirement is implied in Oakwood Hospital Corporation, 219 NLRB 620 (1975), wherein the Board dismissed as inappropriate a petition isting incomplete unit contains some but not all ser- vice, maintenance, and technical employees, the mini- mal appropriate voting group must at least include all unrepresented service, maintenance, and technical employees, thereby possibly perfecting an all service, maintenance, and technical employee unit of the type the Board has found appropriate in the industry.'" During the course of the hearing herein, the parties agreed to include the business office and other cleri- cals. As a consequence, they have changed the con- tours of the unit possibly to be perfected into an all nonprofessional employee unit, another type the Board has found to be appropriate." Accordingly, we shall direct that the self-determination election herein be conducted in the following voting group: All unrepresented full-time and regular part-time nonprofessional employees' employed by Mary Thompson Hospital, Inc., but excluding cur- rently represented employees, all confidential employees, all temporary employees and all pro- fessional employees,'3 guards and supervisors as defined in the Act. Accordingly, the case is remanded to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the eligibility payroll pe- riod therefor shall be for that ending immediately be- fore the date of this Decision on Review and a revised eligibility list, containing the names and addresses of all eligible voters, must be filed by the Employer with the Regional Director for Region 13 within 7 days of this date of the Decision on Review. which sought a Globe election among a limited number rather than all un- represented service clericals in a hospital, apparently the only unrepresented service and maintenance employees. '0 E.g., McKeesporr Hospital, supra. The Petitioner argues that, because there are no technical employees in the existing bargaining unit other than the licensed practical nurses, it is not a mixed unit. We find no merit to this argument. See St. Luke's Hospital, supra. " E.g., National G. South, Inc., a Wholly Owned Subsidiary of National Living Centers, Inc., d/b/a Memorial Medical, 230 NLRB 976, 979 (1977). 12 We agree with the Employer's contention that Pawating Hospital Associ- ation, 222 NLRB 672 (1976), depends upon a finding that the high school students therein had a certain termination date, making them temporary employees and properly excluded from the unit as such and is not authority for an exclusion on the ground that they per se did not share a community of interest with unit employees because they were paid lower wages and did not receive fringe benefits. We have insufficient facts upon which to base a find- ing as to the high school coop students, and we therefore amend the Re- gional Director's Decision to permit the high school co-op students to vote subject to challenge. 3 As the Regional Director made no determination as to their status, we shall permit the nurse technicians to vote subject to challenge as profession- als. 441