Clarion Osteopathic Community Hospital

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 248 (N.L.R.B. 1975)

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clarion Osteopathic Community Hospital and District
1199P, National Union of Hospital and Health Care
Employees, a Division of RWDSU , AFL-CIO, Pe-
titioner. Case 6-RC-7014
July 18, 1975
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Frank J.
Surprenant of the National Labor Relations Board.
On March 28, the Regional Director for Region 6
issued a Decision and Direction of Elections in
which he found appropriate a separate bargaining
unit consisting of all licensed practical nurses em-
ployed by the Employer. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review of the
Regional Director's Decision, together with a sup-
porting brief, asserting, inter alia, that the Regional
Director erred in directing an election in a unit re-
stricted to licensed practical nurses.
On May 16, 1975, the National Labor Relations
Board by telegraphic order granted the request for
review and stayed the election pending a decision on
review. The Employer and the Petitioner filed briefs
on review which have 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 entire record in this
case and makes the following findings:
The Employer is a nonprofit Pennsylvania corpo-
ration engaged in the operation of a 69-bed health
care facility in Clarion, Pennsylvania. The Petitioner
filed a petition seeking to represent a unit of all li-
censed practical nurses employed by the Employer.
For the reasons stated in our decision in St.
Catherine's Hospital of Dominican Sisters of Kenosha,
Wisconsin, Inc., 217 NLRB No. 133 (1975), we find
that a unit consisting solely of licensed practical
nurses is inappropriate.'
In its brief on review, the Petitioner expressed a
willingness to represent an enlarged unit consisting
i See also our decision in Nathan and Miriam Barnert Memorial Hospital
Association d/b/a Barnert Memorial Hospital Center, 217 NLRB No. 132
(1975).
of all licensed practical nurses and other technical
employees employed by the Employer. The Employ-
er asserts that we should dismiss the instant petition,
contending that licensed practical nurses are more
properly included in a service and maintenance unit,
[that some practical nurses are not licensed] and
therefore are not includable in a technical unit, and
that the Petitioner should not be allowed to seek a
unit of combined licensed practical nurses and other
technical employees inasmuch as it previously with-
drew a petition seeking a separate unit of technical
employees. For the following reasons, we reject the
Employer's contentions.
Based on the facts, discussed hereinafter, concern-
ing the training, licensing , registration, and job duties
of the Employer's licensed practical nurses and other
technical employees, we find, for the reasons stated
in St. Catherine's and Barnert, supra, that the
Petitioner's alternative requested unit of technical
employees including nurses is inappropriate?
In deciding which employee classifications are
properly includable in a unit of technical employees
including licensed practical nurses , we apply the
Board's standard criteria that technical employees
are those "who do not meet the strict requirements of
the term `professional employee' as defined 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." 3
The record indicates that the Employer employs 22
licensed practical nurses who work in the nursing de-
partment and are generally responsible for providing
direct nursing care to patients. The record further
shows that the licensed practical nurses are licensed
by the State of Pennsylvania and must have attended
a 1-year course of instruction in an approved school
after graduating from high school. Thereafter, they
must take a special examination administered by the
State Board of Nursing Examiners and, if they pass
the examination, they are licensed. Licenses must be
renewed every 2 years and are subject to cancellation
by the State for violation of the State's nursing stat-
2 In St. Catherine's, we found that licensed practical nurses are not prop-
erly placed in the same unit with service and maintenance employees and,
for the reasons stated therein , we reject the Employer' s contention in the
instant case that its licensed practical nurses should be included in the same
unit as its service and maintenance employees. We also reject the
Employer's contention that the Petitioner should not now be permitted to
represent a unit of technical employees because it previously withdrew a
petition for a unit of technical employees excluding licensed practical nurs-
es. Such withdrawal was voluntary and that petition , as well as the instant
petition , was filed prior to the issuance of the St. Catherine's and Barnert
cases, which established guidelines for appropriate bargaining units of tech-
nical employees and licensed practical nurses
3 Litton Industries of Maryland. Incorporated, 125 NLRB 722, 724-725
(1959).
219 NLRB No. 41
CLARION OSTEOPATHIC HOSPITAL
ute. The record further establishes that licensed prac-
tical nurses exercise some skills and provide some
nursing care, commensurate with their specialized
schooling and experience, which cannot be per-
formed by aides or orderlies. Thus, there is uncontro-
verted testimony that licensed practical nurses are
more qualified than aides to assist in the treatment of
critically ill patients. Based on the above evidence
concerning the licensed practical nurses' specialized
training, licensing, and job duties, we find that they
are technical employees and are properly includable
in the above unit.°
The Employer also employs three "waiver" li-
censed practical nurses who were granted licenses by
the State without having taking an examination un-
der a grandfather provision in the state licensing stat-
ute. These individuals were all hired prior to 1967
and the record establishes that no additional waiver
licensed practical nurses will be hired. Since waiver
licensed practical nurses are licensed and the record
establishes that they perform the same tasks under
the same conditions as regular licensed practical
nurses, we shall include them in the unit.
The Petitioner S would include in a technical unit
all full-time and part-time x-ray technicians em-
ployed by the Employer. The record establishes that
there are four employees in the x-ray department.
Two full-time x-ray technicians are licensed radiolo-
gy technicians who have taken special courses in
their field, passed the required examination, and are
registered by the American Registry of Radiological
Technologists. Another full-time x-ray technician has
completed all necessary schooling and has taken the
registration examination. The record was unclear as
to whether this individual has received the results of
that examination and is presently registered. The rec-
ord establishes that all x-ray technicians, by virtue of
their specialized training and qualifications, are com-
pletely responsible to take and process all x-rays in
the Employer's facility. Accordingly, in light of their
educational requirements, registration, and the tech-
nical nature of their duties, we find that x-ray techni-
cians are technical employees and we shall include
them in the above unit.
A fourth individual in the x-ray department is a
regular part-time x-ray technician who has complet-
ed half of a 2-year specialized training program in
another hospital. This individual regularly works 2
days per week in the x-ray department and performs
the same tasks as the full-time technicians. As stated
in St. Catherine's, supra, our finding that an individu-
al is a technical employee is based on the technical
See Barnert, supra.
3 The Employer took no position on the unit placement of any specific
employee classifications.
249
nature of the work performed and the specialized
training required to perform that work, which usual-
ly, but not necessarily, is evidenced by licensure or
registration. In the instant case, the record ade-
quately establishes that the part-time x-ray techni-
cian has sufficient training to perform, and does per-
form, the identical technical tasks as the full-time
technicians. Accordingly, despite the fact that this
individual has not completed the requisite schooling
for registration and is not registered, we find, for the
foregoing reasons, that this regular part-time x-ray
technician is a technical employee and we shall in-
clude that individual in the above unit.
The Employer employs a number of "laboratory
personnel" whom the Petitioner would not include in
the technical unit. The record indicates that the labo-
ratory personnel conduct various tests ordered by
physicians and use specialized procedures to obtain
those results. However, the uncontroverted evidence
establishes that laboratory personnel exercise no
more independent judgment than other hospital em-
ployees, are not required to have any specialized edu-
cation or training beyond high school, are not re-
quired to be registered or to receive on-the-job
training, are hired as laboratory aides at a salary lev-
el comparable to that of other aides and orderlies,
and progress only as they learn. Based on the above
evidence, we find that the laboratory personnel are
not technical employees and we shall not include
them in the bargaining unit.
The Petitioner takes no position on the inclusion
or exclusion of the medical technologist. The medical
technologist works as a laboratory technician and
has a bachelor of arts degree in medical technology
from an accredited university. The record is unclear
whether or not this individual has taken a registra-
tion examination or is registered by the American
Society of Medical Pathologists. In addition, the rec-
ord does not discuss the job duties and responsibili-
ties of the medical technologist or how they differ
from those of the laboratory personnel. Accordingly,
as the record is inadequate for us to make an in-
formed determination as to the possible professional
status of the medical technologist, we shall permit the
medical technologist to vote subject to challenge.
Based upon the foregoing, we find that the follow-
ing employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(c) of the Act:
All regular full-time and regular part-time tech-
nical employees including licensed practical
nurses and x-ray technicians employed by the
Employer at its hospital facility located in Clar-
ion, Pennsylvania, excluding all other employ-
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, guards , and supervisors as defined in the
Act.
[Direction of Election 6 omitted from publica-
tion.]'
MEMBER PENELLO , dissenting:
For the reasons set forth in the dissent in Nathan
and Miriam Barnert Memorial Hospital Association
d/b/a Barnert Memorial Hospital Center , 217 NLRB
No. 132 (1975), I agree with my colleagues ' finding
that a unit restricted to licensed practical nurses is
inappropriate . However , I disagree with my col-
leagues' finding appropriate and directing an election
in a unit of all technical employees including licensed
practical nurses employed by the Employer. In my
6 As the unit found appropriate is broader than that originally petitioned
for by the Petitioner, the Regional Director shall determine whether its
showing of interest is sufficient before proceeding with the election.
7 Excelsior footnote omitted from publication.
opinion , the granting of a separate unit for technical
employees , whether or not it includes licensed practi-
cal nurses , is contrary to the congressional mandate
to avoid undue proliferation of bargaining units in
the health care industry .' Mindful of the clear man-
date from Congress to establish broad units in this
industry, I would , in accordance with the Employer's
position herein , require all technical employees, in-
cluding licensed practical nurses , to be included in a
broad service and maintenance unit . 9 Accordingly, I
would dismiss the instant petition.
3In both the House and Senate Reports concerning the health care
amendments , Congress expressly approved of the Board's Decision in Ex-
tendicare 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 . 5 (1974); H. Rept . 93-1051, 93d Cong ., 2d sess. 7 (1974).
9 See my separate concurring opinion in Mt. Airy Foundation, d/b/a Mi.
Airy Psychiatric Center, 217 NLRB No 137 ( 1975). See also my partial
dissent in St. Catherine 's Hospital of Dominican Sisters of Kenosha , Wiscon-
srs, Inc., supra