Malcom X Center for Mental Health, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1976

222 N.L.R.B. 944 (N.L.R.B. 1976)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Malcom X Center for Mental Health, Inc., Employer-
Petitioner and State Council No. 76 of the Ameri-
can Federation of State, County and Municipal Em-
ployees, AFL-CIO.' Cases 27-RM-465 and
27-RM-466
February 19, 1976
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, PENELLO, AND WALTHER
Upon a petition duly filed in Case 27-RM-465,
and a petition duly filed in Case 27-RM-466, and
upon consolidation of the cases for hearing by the
Regional Director for Region 27, a hearing was
thereafter held before Hearing Officer William J.
Daly. Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure,, Series
8, as amended, the Regional Director thereafter
transferred Case 27-RM-465 and Case 27-RM-466
to the Board for decision. State Council No. 76 of the
American Federation of State, County and Munici-
pal Employees, AFL-CIO, herein the Union, has
filed a brief in the two cases.
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 Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in the two cases,' the Board
finds:
1. The Employer is a nonprofit Colorado corpora-
tion located in Denver, Colorado, and engaged in
providing comprehensive services and care for the
mentally ill. The Employer annually receives approx-
imately $700,000 from the United States Department
of Health, Education and Welfare through the Na-
tional Institute of Mental Health. The Employer also
receives annually about $479,000 from the State of
Colorado through its State Department of Institu-
tions, Division of Mental Health.
The Employer offers mental health services on an
outpatient basis and on a more intensive basis, in-
cluding hospitalization. Its outpatient services consist
of three neighborhood units and an alcoholism unit,
while its intensive services section consists of a recep-
tion center where initial diagnoses are done, a day
treatment section, and a continuous treatment sec-
tion.
The parties stipulated that the Employer is en-
gaged in interstate commerce within the meaning of
the National Labor Relations Act, as amended.
Upon the record as a whole, we agree with this stipu-
lation and therefore assert jurisdiction over the Em-
ployer.'
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
The Employer filed its petitions with the Board in
these two cases on October 20, 1975. Sometime be-
fore, the State of Colorado had conducted a union
election at the Employer which, on September 3,
1975, had resulted in a certification of the Union as
bargaining representative in a unit of the Employer's
employees. That unit included employees who are
nonprofessional, and employees we find to be profes-
sional, infra. The professional employees were not
given a separate vote in the state election as to their
inclusion in the same unit with the nonprofessional
employees.
Public Law 93-360 amended the National Labor
Relations Act to eliminate the exemption from the
coverage of the Act previously accorded to private
nonprofit health care facilities. Thus, when the
amendments to the Act became effective, on August
25, 1974, the Employer, a private nonprofit health
care facility, became subject to the jurisdiction of the
National Labor Relations Board since its operations
met the discretionary monetary standards for asser-
tion of the Board's jurisdiction. Ordinarily then, we
would simply find that a question concerning repre-
sentation was presently before us.
Before continuing in the instant proceeding, how-
ever, we must determine the effect the election previ-
ously conducted by the State of Colorado has on the
Employer's petitions for it is well established that the
Board will recognize the validity of state-conducted
elections and certifications where the election proce-
dure was free of irregularities and reflected the true
desires of the employees and, in such circumstances,
the Board will find that no question concerning rep-
resentation exists when a petition is filed with the
Board 4
However, in the instant cases, as we view the elec-
tion conducted by the State of Colorado, that elec-
tion appears to have been held in a unit which is, on
1 Name appears as amended at the hearing 3 St Peter's School, 220 NLRB No. 82 (1975), Sodat, Inc, 218 NLRB No.
2 The two cases are hereby consolidated for decision and further action as 202 (1975)
they raise the same issues and appropriate resolution of these issues can 4 Cornell University, 183 NLRB 329, 334 ( 1970), The West Indian Co,
only be accomplished through consolidation Ltd, 129 NLRB 1203, 1204 (1961)
222 NLRB No. 147
MALCOM X CENTER 945
its face, at variance with the policies enunciated by
Congress in the National Labor Relations Act. Spe-
cifically, the unit in which the state conducted its
election included both nonprofessional employees
and employees who are professional within the
meaning of Section 2(12) of the National Labor Re-
lations Act. Section 9(b)(1) of the National Labor
Relations Act provides that the Board shall not "de-
cide that any unit is appropriate for [purposes of col-
lective bargaining] if such unit includes both profes-
sional employees and employees who are not
professional employees unless a majority of such pro-
fessional employees vote for inclusion in such unit."
In this case, the professional employees were not giv-
en a separate vote in the state-conducted election
and, therefore, that election was not a "valid" elec-
tion within the meaning of the National Labor Rela-
tions Act. Accordingly, we cannot accord any weight
to that election.' Rather, we now find a question con-
cerning representation is presently before us, based
on the petitions filed by the Employer.
4. In Case 27-RM-465, the Employer filed a peti-
tion for a unit of all the Employer's professional em-
ployees, excluding all nonprofessional employees, of-
fice clericals, and all guards and supervisors as
defined in the Act. In Case 27-RM-466, the Employ-
er filed a petition for a unit of all the Employer's
nonprofessional employees, including the office cleri-
cals, and excluding the professionals, guards and su-
pervisors as defined in the Act. At the hearing, the
Employer indicated that it sought to have all the
nonprofessionals vote in one grouping, and the pro-
fessionals in a second grouping, with the profession-
als indicating whether they wish to be included with
the nonprofessionals in a single unit, and whether
they wish to be represented by the Union. In essence,
the Employer desires that an election in an all-em-
ployee unit be held, with the professionals being ac-
corded a separate vote. The Union does not oppose
the concept of an all-employee unit but argues that
the State of Colorado has already certified the Union
in such a unit at the Employer. Thus, the Union con-
tends that only the professional employees should
now vote since they did not have a separate vote in
the prior state election.
As we have noted, supra, we do not consider the
state election which yielded the Union's certification
to have been a valid election within the meaning of
the National Labor Relations Act. It follows that, as
the Union is relying on the results of that state elec-
tion in furtherance of its argument that only the pro-
fessionals be allowed to vote, we must reject that ar-
gument. Rather, as no union seeks to represent any
of the Employer's employees in less than an overall
unit, and as the Union itself appears to have indi-
cated in the state election proceeding its willingness
to represent the employees in an overall unit, we
shall, if the facts warrant, direct an election in an
overall employee unit according the professional em-
ployees a separate vote on representation.'
The Employer and the Union are in agreement,
and stipulated, as to those who comprise the
Employer's professional employees, i.e., all of the
Employer's mental health clinicians. This category
includes psychiatrists, psychologists, social workers,
mental health nurses, an activity therapist, and cer-
tain employees designated as mental health workers.
In this last category are included RN's, LPN's, em-
ployees with bachelor's degrees and associate of arts
degrees, and certain employees without degrees.
The Employer operates on a team concept in its
delivery of mental health care. Its services, both out-
patient and intensive, are divided into various teams
headed by team leaders, or into smaller employee
groupings headed by coordinators. The makeup of
any one of the Employer's teams may consist of any
number of different types of mental health clinicians.
Persons seeking assistance with their problems at
the Employer are initially interviewed by a mental
health clinician at the Employer's reception center.
The interview may have been set up in advance or
the person may simply have walked into the center
on an emergency basis.' The clinicians at the recep-
tion center take down a history of the person and do
an evaluation of what the person's problem appears
to be. The clinician helps the person establish certain
goals toward improvement of his condition, or the
clinician establishes these goals for the person, and
then the clinician decides what type of therapy is best
suited to the person's needs. The clinician at the re-
ception center then determines the team to which the
person, now a client, will be sent and, depending on
the team involved, may designate the clinician, or
clinicians, with whom the client will be working.'
The designation of the particular clinician, or clini-
cians, with whom a client will be working is based
primarily on the problem that is diagnosed and the
type of treatment that is best suited to deal with that
problem. The clinician who is most adept at that par-
ticular type of treatment will, if available, be assigned
to the client in need of that treatment. In considering
the assignment of a clinician, the particular degree
which the clinician possesses is of little importance.
Rather, it is a matter of "who works best with
5 See Brookhaven Memorial Hospital, 214 NLRB No. 159 (1974), see also
Clements Auto Company d/b/a Southern Minnesota Supply Company, 116
NLRB 968, 969 (1956).
6 Sonotone Corporation, 90 NLRB 1236, 1241 (1950).
7 On at least one team, the team leader there makes the determination of
which of the clinicians on her team will primarily treat the client.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom," and in certain instances the method of treat-
ment being employed with one client by a psychia-
trist, a registered M.D., might not be appreciably dif-
ferent than that utilized by a mental health worker
with another client.
There are, of course, various differences in levels
of responsibility within various categories of the
Employer's mental health clinicians, e.g., only physi-
cians can prescribe medication; the psychologists are
trained to administer and interpret psychological
tests; the mental health nurses can administer medi-
cation to, clients. But generally, all the Employer's
clinicians are engaged in primary and secondary clin-
ical services,' and they all provide psychotherapy for
the Employer's clients.
In sum, the mental health clinicians' work, dealing
as it does with the various mental problems of the
clients, involves the consistent exercise of discretion
and judgment in the treatment of those clients, and is
a clearly intellectual endeavor. We thus agree with
the parties' stipulation that those employees classi-
fied as the Employer's mental health clinicians are
professional employees.9
The parties are also in agreement as to the catego-
ries comprising the nonprofessional employees of the
Employer 10 and they further reached agreement on
certain employees who are supervisors or confiden-
tial employees.11 We accept these stipulations. 12 How-
ever, the parties were unable to reach an agreement
on the status of the team leaders and coordinators at
the Employer's various locations. The Employer con-
tends that the team leaders and coordinators are su-
pervisors under the Act while the Union contend
they are employees.13
At the time of the hearing, the Employer's-opera-
tions were overseen by a community-based board of
directors. Reporting to the board was the executive
director, who was responsible for the day-to-day op-
erations of the Employer. Each of the Employer's
B Primary clinical services involve any direct contact between the clinician
and the client ; and secondary services involve any contact between the
clinician and the client 's family, or a school or social agency involved with
the client
9 See The Ryan Aeronautical Co., 132 NLRB 1160, 1164 (1961)
10 The secretaries, secretary-receptionists, receptionist-typist, program
evaluator , coordinator of continuity of care, and accounting clerks
11 The executive director , the assistant to the director, the chief accoun-
tant, the director of clinical services, the director of outpatient services, the
director of intensive care , the director of research , the secretary to the direc-
tor of finance, the secretary to the executive director, the secretary to the
board of directors, the secretary to the director of clinical services, and the
secretary to the director of research and evaluation.
12 The parties stipulated as to the inclusion of the junior accountant in the
nonprofessional unit . As the record evidence is not clear on this category,
we shall allow the humor accountant to vote a challenged ballot in the
nonprofessional unit.
1 The team leaders and coordinators have similar levels of responsibility,
but the coordinators-head smaller employee groupings . We consider the
eligibility status of the two categories together.
two clinical operations, outpatient services and inten-
sive services, was headed by a director, who reported
to the director of clinical services, who in turn report-
ed to the executive director. Within outpatient serv-
ices there were two teams headed by team leaders
and two smaller groups headed by coordinators.'"
Within intensive services; there were three teams
headed by team leaders, and a single inpatient coor-
dinator.ls
Each of the team leaders and coordinators is a
mental health clinician who carries a particular case-
load of clients in addition to his or her administrative
responsibilities. However, because of the additional
nonclinical work involved in their capacity as heads
of their units, the team leaders' and coordinators'
quantity of clinical work may be less than other simi-
larly skilled clinicians. The team leaders' and coordi-
nators' overall purpose is to coordinate the services
offered by their units and-to provide direction so that
the unit can accomplish those goals set out by man-
agement. Management would hold the team leaders
or coordinators responsible if their units did not meet
those goals.
For his or her work.as a team leader, a clinician is
paid an additional amount of money. While team
leaders cannot hire, fire, or suspend employees, they
can make recommendations on these matters. Va-
cancies on a particular team may be filled after a
number of members, including the team leaders, in-
terview the various applicants for the job. The team
leader then forwards the name of the applicant on to
higher management. While it appears that all the
team leaders utilize their unit members in employ-
ment interviews (in keeping with the concept of a
team approach), the team leaders have the preroga-
tive to interview applicants without input from unit
members if they so desire.
Team-leaders are responsible for the evaluation of
their units members and, except for cost-of-living
wage increases, a unit's members do not ordinarily
receive raises without a recommendation from the
team leader. Unit members can then appeal any ad-
verse decision in this area by a team leader to the
respective directors of the services under which they
function.
Team leaders are responsible for keeping the atten-
dance records for their units' members and are res-
ponsible for turning in a sheet, signed by the team
leader and member, which verifies the records that
are kept on each member. It is the team leader who
14 There were seven and nine, employees on the two outpatient services
teams, including the team leaders There were three and two employees,
including the coordinators, in the smaller groups.
is Including the team leaders, the three intensive services teams had nine,
seven , and six employees . There were no employees under the inpatient
coordinator.
MALCOM X CENTER 947
must approve the time when a unit member wishes to
take his or her vacation.
Any complaints about working conditions, or indi-
viduals, that a unit member has are processed-initial-
ly through the team leader. Further, team leaders
counsel, any of their own unit members when prob-
lems arise with that member.
Team leaders have weekly meetings with the- direc-
tor of clinical services at which management policies
are discussed and the team leaders also hold meet-
ings with their own unit members at which time in-
formation supplied to the team leaders by the direc-
tor of clinical services is then disseminated to the
unit members. Certain of the team leaders have at-
tended, at management's request, _a conference on
middle management which was intended to increase
the team leaders' effectiveness in management areas.
On the basis of the foregoing, we conclude that the
team leaders and coordinators are supervisors within
the meaning of the Act. While it is true that the Em-
ployer functions on a team concept, and that a unit's
members have significant input, especially in recom-
mending-hiring, into, the way a unit functions; it is
the team leader, or coordinator, who is directly res-
ponsible for a unit's daily activities and functions. It
is the team leader, or coordinator, who evaluates em-
ployees, who initially processes grievances, who
grants time off for vacations, and who counsels em-
ployees. The team leaders' or coordinators' evalua-
tions can lead to an employee raise. They are addi-
tionally compensated for their work. In sum, we
conclude that the team leaders and coordinators are
not simply conduits of information and opinion from
management to the unit members, and vice versa, as
was contended, but we conclude -that the team lead-
ers and coordinators perform,-informed supervisory
tasks within the meaning of the Act.16
We therefore find that the following employees
may constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act: -
All ' psychiatrists, psychologists, mental health
nurses, social workers, activity therapists, mental
health -workers, secretaries, secretary-reception-
ists, the receptionist-typist, the program evalua-
tor, the coordinator of continuity of care, and
the accounting clerks employed by the Employ-
er, excluding the executive director, the assistant
to the director, the administrative assistant, the
16 At the time of the hearing, the inpatient coordinator in the intensive
services section supervised no one and- it did not appear he was slated to
have any members on his staff in the future. We shall therefore allow this
employee to vote in the professional unit, subject to his being challenged
should there,now be employees in his group over whom he has authority as
do the other coordinators
director of finance,_the chief accountant, the di-
rector of clinical. services, the director of outpa-
tient services, the director of -intensive care serv-
ices, the director of research and evaluation,
secretary to the executive director, secretary to
the board of directors, secretary to the director
of clinical services, secretary, to the director of
research and evaluation, secretary to the direc-
tor of finance, public relations - specialist, all
,team leaders and coordinators, and all manage-
rial employees, guards, and supervisors as de-
fined in the Act. -
The unit set out above includes professional and
nonprofessional employees. However,- as noted
above, the Board is prohibited by Section 9(b)(1) of
the Act from including professional employees in a
unit with employees who are not'professionals unless
a majority of the professional employees vote for in-
clusion in such a unit. Accordingly, we must ascer-
tain the desires of the professional employees as to
inclusion in a unit with nonprofessional employees.
We shall therefore direct separate elections in the
following voting groups: -
Voting Group (a): All secretaries, secretary-re-
ceptionists, the receptionist-typist, the program
evaluator, the coordinator of continuity of care,
and the accounting clerks employed by the Em-
ployer, excluding psychiatrists, psychologists,
mental health nurses, social workers, activity
therapists, mental health workers, executive di-
rector, the assistant -to the director, the adminis-
trative assistant, the director of finance, the
chief accountant, the director of clinical serv-
ices, the director of outpatient services, the di-
rector of intensive care services, the director of
research and evaluation, secretary to the execu-
tive director; secretary to, the board of directors,
secretary to the director of clinical services, sec-
retary to the director of research and' evaluation,
secretary to the director of finance, public rela-
tions specialist, all team leaders and, coordina-
tors, all managerial employees, guards, and su-
pervisors as defined in the Act.
Voting Group (b): All psychiatrists, psycholo-
gists, mental health nurses, 'social workers, activ-
ity therapists and mental health workers em-
ployed by the Employer, excluding secretaries,
secretary-receptionists, the receptionist-typist,
the program evaluator, the 'coordinator of con
tinuity of care, the accounting clerks, the execu-
tive director, the assistant to the ;director, the ad-
ministrative assistant, the director of finance,
the chief accountant, the, director of clinical
services,, the director of outpatient services, the
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
director of intensive care services, the director of
research and evaluation, secretary to the execu-
tive director, secretary-to-the board of directors,
secretary to the director of clinical services, sec-
retary to the director of research and evaluation,
secretary to the, director of finance, public rela-
tions specialists, all team leaders and coordina-
tors, all managerial employees, guards, and su-
pervisors as defined in the Act.
The employees in the nonprofessional voting
group (a) will be polled to determine whether or not
they wish to be represented by the Union.
The employees in voting group (b) will be asked
two questions on their ballot:
(1) Do you desire the professional employees to
be included in a unit composed of all profession-
al employees and nonprofessional employees of
the Employer for the purposes of collective bar-
gaining?
(2) Do you desire to be represented for the pur-
poses of collective bargaining by State Council
No. 76 of the American Federation of State,
County and Municipal Employees, AFL-CIO?
If a majority of the professional employees in vot-
ing group (b) vote "yes" to the first question, indicat-
ing their wish to be included in a unit with nonpro-
fessional employees, they will be so included. Their
vote on the second question will then be counted to-
gether with the votes of the, nonprofessional voting
group (a) to determine whether or not the employees
in the whole unit wish to be represented by the
Union. If, on the other hand, a majority of profes-
sional employees in voting group (b) vote against in-
clusion, they will not be included with the nonprofes-
sional employees. Their votes on the second question
will then be separately counted to determine whether
or not they wish to be represented by the Union.
There is no indication in the record that the Union
would be unwilling to represent the professional em-
ployees separately if those employees vote for sepa-
rate representation. However, if the Union does not
desire to represent the professional employees in a
separate unit even if those employees vote for such
representation, it may notify the Regional Director
to that effect within 10 days of the date of this Deci-
sion and Direction of Election.
Our unit determination' is based, in part, then,
upon the results of the election among the profes-
sional employees. However, we now make the follow-
ing findings in regard to the appropriate unit:
1. If a majority of the professional employees vote
for -inclusion in the unit with nonprofessional em-
ployees, we find that the following will constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All psychiatrists, psychologists, mental health
nurses, social workers, activity therapists, mental
health workers, secretaries, secretary-reception-
ists, the receptionist-typist, the program evalua-
tor, the coordinator of continuity of care, and
the accounting clerks employed by the Employ-
er, excluding the executive director, the assistant
to the director, the administrative assistant, the
director of clinical services, the director of out-
patient services, the director of intensive care
services, the director of research and evaluation,
secretary to the executive director, secretary to
the board of directors, secretary to the director
of clinical services, secretary to the director of
research and evaluation, secretary to the direc-
tor of finance, public relations specialist, all
team leaders and coordinators, all managerial
employees, guards, and supervisors as defined in
the Act.
2. If a majority of -the professional employees do
not vote for inclusion in the unit with nonprofession-
al employees, we find that the following two groups
of employees will constitute separate units appropri-
ate- for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
(a) All secretaries, secretary-receptionists, the
receptionist-typist, the program evaluator, the
coordinator of continuity of care, and the ac-
counting clerks employed by the Employer, ex-
cluding psychiatrists, psychologists, mental
health nurses, social workers, activity therapists,
mental health workers, the executive director,
the assistant to the director, the administrative
assistant, the director of finance, the chief ac-
countant, the director of clinical services, the di-
rector of outpatient- services, the director of in-
tensive care services, the director of research
and evaluation, secretary to the director of fi-
nance, public relations specialist, all team lead-
ers and coordinators, all managerial employees,
guards, and supervisors as, defined in the Act.
(b) All psychiatrists, psychologists, mental
health nurses, social workers, activity therapists,
and mental health workers, excluding secre-
taries, secretary-receptionists, the receptionist-
typist, the program evaluator, the coordinator of
continuity of care, the accounting clerks, the ex-
ecutive director, the assistant to the director, the
administrative assistant, the director of finance,
the chief accountant, the director of clinical
services, the director of outpatient services, the
director of intensive care services, the director of
research and evaluation, secretary to the execu-
MALCOM X CENTER 949
tive director, secretary to the board of directors, tions specialist, all team leaders and coordina-
secretary to the director of clinical services, sec- tors, all managerial employees, guards, and su-
retary to the director of research and evaluation, pervisors as defined in the Act.
secretary to the director of finance, public rela- [Direction of Election and Excelsior footnote
omitted from publication.]