Lifeline Mobile Medics

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1068 (N.L.R.B. 1992)

1068
308 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 11, 1991, the Board (Chairman Stephens, Member
Devaney; Member Cracraft dissenting) issued an Order granting the
Employer’s request for review of the Regional Director’s Second
Supplemental Decision on Challenged Ballots and Objections and
finding, inter alia, in agreement with the Regional Director, that dis-
patcher Marcia Mertel and billing clerk Tamara Carlson are office
clerical employees. Their status as office clericals is therefore not at
issue here. Mertel spends 50 percent of her time handling telephone
calls and dispatching ambulances and the remainder of her time
doing aid billing and helping Carlson with other patient billing.
Carlson’s primary responsibility is handling finance, billing, and in-
surance, but she has trained for dispatching work with Mertel and
fills in for Mertel about an hour a day.
2 The following is the unit found appropriate:
All full-time and regular part-time emergency medical techni-
cians-paramedics, emergency medical technicians-intermediate,
emergency medical technicians-ambulance, and registry emer-
gency medical technicians employed by the Employer at its fa-
cilities in Bloomington and Normal, Illinois, but excluding sen-
ior paramedics, dispatcher, billing clerk, office clerical employ-
ees, professional employees, guards and supervisors as defined
in the Act.
The Regional Director found that the Employer’s EMTs are tech-
nical employees. Since no party here disputes the Regional Direc-
tor’s finding in this regard, we have assumed they are technicals for
purposes of this case.
3 The Regional Director found that if, after the issuance of a re-
vised tally of ballots (whether or not the Board finds that the ballots
of the office clericals be opened and counted), the Petitioner does
not receive a majority of the valid votes cast, the election will be
set aside and a second election conducted consistent with the
Board’s Order of April 11, 1991.
4 No party has requested review of this finding.
5 The Employer also employs a registry office dispatcher, Sim-
mons, who did not participate in the election and whose status is not
at issue.
6 Contrary to the Petitioner’s contention, the court in NLRB v.
Hillview Health Care Center, 705 F.2d 1461 (7th Cir. 1983), did not
find that a maximum of two bargaining units (the situation here) can
never constitute undue proliferation. Although the court found in that
case that the two units did not constitute proliferation, the court
opined that a different result might be required under different facts.
7 In the Rulemaking proceeding, the Board determined that BOCs
in acute care hospitals constituted a separate appropriate unit. 284
NLRB at 1562.
Lifeline Mobile Medics, Inc. and Laborers’ Inter-
national Union of North America, AFL–CIO,
Local 362, Petitioner. Case 33–RC–3471
September 30, 1992
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 6, 1991, the Regional Director for Re-
gion 33 issued a Third Supplemental Decision on
Challenged Ballots in which he concluded, applying a
community-of-interests test, that the Employer’s two
office clericals1 should be excluded from the peti-
tioned-for unit of the Employer’s emergency medical
technicians (EMTs)2 and sustained the challenges to
their ballots. The Employer filed a timely request for
review and the Petitioner filed an opposing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has duly considered this matter and has
decided to grant review, reverse the Regional Director,
and remand to the Regional Director to count the two
ballots in dispute and for further appropriate action, for
reasons set forth below.3
The Regional Director found that the Employer, an
ambulance service, is a health care institution under
Section 2(14) of the National Labor Relations Act.4 In
Park Manor Care Center, 305 NLRB 872 (1991),
which issued after the Regional Director’s decision
here, the Board found that the appropriate test for de-
termining the appropriate unit in a nonacute care health
care institution is an empirical community-of-interest
test. Under that test, the Board considers community-
of-interest factors, as well as those factors considered
relevant by the Board in its rulemaking proceedings on
Collective-Bargaining Units in the Health Care Indus-
try, 284 NLRB 1528 (1988), and 284 NLRB 1580
(1989), the evidence presented during rulemaking with
respect to units in acute care hospitals, and prior cases
involving either the type of unit sought or the type of
health care facility in dispute. In remanding Park
Manor to the Regional Director for application of this
test, the Board observed that, if the employees ex-
cluded by the Regional Director could not themselves
constitute a separate unit, they must perforce be in-
cluded in the broader unit. 305 NLRB 872 at 12 fn.
18.
Here, Mertel and Carlson are the Employer’s only
regular office clericals.5 As the Board stated in the
Rulemaking proceeding, units of two or more employ-
ees, or similarly small numbers of employees, would
in many cases be impractically small, especially in the
health care industry, 284 NLRB at 1588, and a peti-
tioned-for unit of five employees or fewer would auto-
matically trigger the extraordinary circumstances ex-
ception. Id. and fn. 5. Here, Mertel and Carlson are the
only employees remaining apart from the Employer’s
approximately 25 EMTs.6
Applying standard community-of-interest factors, we
find a closer relationship between the Employer’s of-
fice clericals and the EMT unit than was found be-
tween business office clericals (BOCs) and other non-
professionals considered in the Rulemaking.7 Unlike
the BOCs analyzed in the Rulemaking whose work re-
sponsibilities are generally limited to finance, billing,
and insurance; who do not engage in patient care; and
who have no responsibility for physical or environ-
mental health, 284 NLRB at 1562, Mertel and Carlson
perform hybrid functions—a combination of office
clerical and dispatching work. The dispatching portion
of their work involves trying to learn the condition of
1069LIFELINE MOBILE MEDICS
8 The Employer’s job description for dispatcher requires EMT cer-
tification, but Carlson is not certified.
9 Mertel was an EMT-A with the Employer before an injury pre-
vented her from continuing to do the EMT work. Simmons, the reg-
istry clerical, was also an EMT with the Employer before an injury,
but has not kept up her certification.
10 The Board found that BOCs’ salaries are based on the outside
clerical market. There is no evidence regarding how the Employer
derived office clerical salaries.
the patient in order to convey relevant information to
the EMTs, which relates to the physical health of the
patients. Indeed, on at least one occasion, Mertel gave
cardiopulmonary resuscitation instructions to a caller
on the telephone. The dispatching work also requires
frequent radio communication with the EMTs and con-
tact to rectify errors on run reports, in contrast to the
lack of contact between standard BOCs and other non-
professionals in acute care hospitals. See 284 NLRB at
1563.
Moreover, the dispatching portion of their jobs is in-
tegrated with the duties of the EMTs. The Employer
has contracted with a telephone answering service to
provide dispatching during the hours not covered by
Mertel and Carlson. However, the EMTs perform what
amounts to informal dispatching during the answering
service hours. If the EMTs believe they have not re-
ceived enough information from the answering service,
the unit not responding will call back the patient or
person who called in and try to learn more informa-
tion, which lets the EMTs know whether a closer unit
should respond if additional help is needed. If the an-
swering service dispatches a unit that is not the closest,
the closest unit will step in. Thus, it is apparent that
the nature of the dispatching task is intimately related
to, and in some respects a part of, the EMTs’ duties.
As a result of the hybrid nature of the clericals’ work,
the basis for excluding Mertel and Carlson from a unit
with the EMTs is not as strong as if they did only bill-
ing and other typical office clerical work. In addition,
the small size of the Employer’s work complement and
the limited number of positions has narrowed staffing
diversity.
While BOCs in acute care hospitals may have spe-
cial clerical training and constant retraining, 284
NLRB at 1562–1563, there is no indication that either
Mertel or Carlson had such training or are retrained.
Certification is not a job factor for BOCs. Although
the Employer does not require EMT certification for
all persons handling its dispatching work,8 Mertel is a
certified EMT9 and has apparently kept up the nec-
essary education to continue certification. Additionally,
Mertel and Carlson have overlapping wages with the
EMTs.
The Petitioner contends that, like BOCs in the Rule-
making, 284 NLRB at 1563, Mertel and Carlson have
separate firstline supervision. However, traditional
BOCs also generally have a separate hierarchy of su-
pervision with ultimate supervision by a financial ad-
ministrator. 284 NLRB at 1563. It is undisputed that
Mertel and Carlson are directly supervised by the Em-
ployer’s director who constitutes the entire ‘‘hier-
archy’’ of supervision for the clericals. Two paramedic
supervisors supervise the EMTs. While the evidence is
unclear whether the director also engages in firstline
supervision of the EMTs, at a minimum the director
provides the only other level of supervision for the
EMTs and overall supervision for both clericals and
EMTs. It is undisputed that the director changed wage
increases for EMTs recommended by the EMT super-
visors. Unlike the BOCs in the Rulemaking, 284
NLRB at 1563, there is no evidence that Mertel’s and
Carlson’s work is closely monitored.
Mertel and Carlson do not appear to be as physically
isolated as BOCs in many acute care hospitals, some
of whom are located in buildings apart from their em-
ployer’s health care facility. 284 NLRB at 1563. EMTs
at the Employer’s base location in Bloomington, which
has an office and a garage for an ambulance, are sta-
tioned in an area adjoining the office area where
Mertel and Carlson are located, and all EMTs rotate
through this location from the Employer’s other two
locations at metropolitan area hospitals. While it is un-
clear if this results in job-related interaction (dispatch-
ing still seems to be done by radio or telephone), the
close proximity is another factor supporting a commu-
nity of interest. In addition, the office clericals and
EMTs jointly attend staff meetings.
Career paths and job mobility appear to be less dis-
tinct for the office clericals here than for the BOCs in
the Rulemaking.10 BOCs in acute care hospitals were
found to have few avenues of advancement in a health
care facility. They have an external job market. By
contrast, Mertel has kept her EMT certification and
presumably could go back to EMT work if her health
improved. As indicated, EMTs also provide informal
dispatching during the times the answering service
handles dispatching. Carlson has ‘‘moved up’’ in the
office area by learning dispatching.
In addition to the factors listed in the Rulemaking
regarding BOCs, the Board normally considers evi-
dence of transfers in determining community of inter-
est. While there is no evidence of a formal transfer
procedure between office clericals and EMTs here,
Mertel was given an office clerical job when she could
no longer perform EMT work because of a job-related
injury.
There is no definitive pre-Rule precedent regarding
units in ambulance services or inclusion of office cleri-
cal-dispatchers in units with EMTs.
The foregoing convinces us that Mertel and Carlson
should be included in the bargaining unit with the Em-
ployer’s EMTs. Although there is evidence of separate
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
immediate supervision between the clericals and the
EMTs, the Employer lacks the separate hierarchy of
supervision found in the Rulemaking. In any event, the
small number of clericals, integrated nature of the
work, high degree of contact, overlapping wages, close
proximity of work stations, intertwining job mobility,
and transfer of Mertel from EMT to clerical work, far
outweighs that factor. We therefore overrule the chal-
lenges to the ballots of Mertel and Carlson.
ORDER
This case is remanded to the Regional Director to
open and count the overruled challenged ballots and
for further processing in conformity with this decision.