Medical Arts Hospital of Houston, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1975

221 N.L.R.B. 1017 (N.L.R.B. 1975)

MEDICAL ARTS HOSPITAL OF HOUSTON, INC. 1017
Medical Arts Hospital of Houston , Inc. and Teamsters
Freight, Tank Line and Automobile Industry
Employees, Local Union 988 , Hospital Division,
affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Help-
ers of America,' Petitioner . Case 23-RC-4274
December 4, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, 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 Robert L.
Penrice. 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 for Region 23 transferred this case to the
Board for decision. Briefs were filed by the Employer
and Petitioner in support of their respective posi-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs of the parties, the Board fords:
1. The parties stipulated and we find that Medi-
cal Arts Hospital of Houston, Inc., is a Texas
corporation licensed to do business in Houston,
Texas, where it is engaged in the operation of a
hospital for profit which provides inpatient and
outpatient medical services for the sick and injured.
During the past 12 months, in the course and
conduct of its business operations, Employer had
gross revenues in excess of $250,000 and purchased
and received at, its Houston, Texas, location goods,
supplies, and materials valued in excess of $50,000
from points outside the State of Texas. It was further
stipulated that Employer at all times material herein
has been and now is a health care institution as
defined in Section 2(14) of the Act and is an
employer engaged in commerce or industry affecting
commerce within the meaning of Section 2(6) and, (7)
1 The name of Petitioner appears as amended at the hearing.
2 As Employer's brief indicates the position of business office ware-
houseman , whom the Petitioner sought to exclude, is temporary, we shall
not include this classification in the unit
The parties agree ,, the record shows, and we find that the transporta-
221 NLRB No. 170
of the Act. We further find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. Employer asserts that the record does not
support a conclusion that Petitioner is a labor
organization within the meaning of Section 2(5) of
the Act. The uncontradicted record shows that
Petitioner admits employees to membership and said
employees attend meetings, elect officers of Petition-
er by secret ballot, have voted on and approved
bylaws, and are involved in all aspects of the
organization. According to the uncontradicted evi-
dence, Petitioner was duly chartered by the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and operates
under the constitution of said International. Petition-
er was established, for the purpose of representing
employees of employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment,
and conditions of work. Accordingly, we find
Petitioner is a labor organization within the meaning
of Section 2(5) of the Ac-t.
3. A question affecting commerce exists concern-
ing the representation of -certain employees of
Employer within the meaning-of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of service
and maintenance employees and Employer is in
basic agreement with the unit sought.2 However, they
disagree as to the unit placement of various clerical
employees and as to whether technical employees
should be included in the unit and whether certain of
them are technical employees.
Clerical employees: Employer employs clerical
employees at its facility in Houston, Texas. Although
all of these employees perform tasks which are
essentially "clerical" in nature, many of them work
next to employees in the service and maintenance
unit sought by the Union. The remaining clerical
employees perform primarily "business office" type
functions and work apart from the service and
maintenance employees in departments throughout
the hospital.
It is established Board policy in the health care
field,3 as in the industrial sphere, that a distinction
exists between business office clericals, who perform
mainly business-type functions, and hospital clericals
whose work is more, closely related to the functions
performed by personnel in the service and mainte-
nance unit. Recognizing that distinction, the Board
stated in Mercy, supra, that it would continue to find,
as separately appropriate, units which consist of
tion/patient escort shares a community of interest with service and
maintenance employees. Accordingly, we shall include this classification in
the unit found appropriate herein.
3 Mercy Hospitals of Sacramento, Inc, 217 NLRB No 131 (1975).
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business office clericals. After carefully examining
the record, we have concluded that the fallowing
classifications of employees are business` office
clericals who perform "mainly business-type func-
tions" 4 and should, ' on the facts noted below, be
excluded 'from the unit herein: nursing- office
secretary, PBX operator,- and admitting and dismiss-
al clerk.
'Nursing office secretary: In this classification, the
Employer requires that'-the employee be a high
school graduate or equivalent, have knowledge of
medical terminology' and office procedures, and be
able to type 30 words per minute. In` the area of
experience, the employee- must have 1 year's experi-
ence as a ward secretary or nursing office-secretary
and previous extensive experience iii' direct contact
with hospital- employees, patients, and related per-
sonnel . The job does not involve the keeping, of
patient records. The nursing office secretary main-
tains the hospital census, types surgery and postsur-
gery reports for hospital personnel, types and posts
duty time -for nursing personnel, arranges ,duty time
for various hospital personnel, assists in computing
time for - pay purposes, .takes weekly, purchase
requests from all units to purchasing, and types and
distributes memos and notes to personnel. The
nursing office secretary is supervised by the nursing
supervisor, and is located in the supervisor's office
where she spends 90 percent of her time.
PBX operators: These employees are a part of the
admitting office. They are supervised by the senior
admitting clerk, do not wear uniforms, spend ,100
percent of their time at their work stations, and
handle all the incoming calls for the Hospital. The
PBX operators keep records of telephones in patient
,rooms, file telephone and TV charges, attend a
switchboard, ; act as receptionists, and mark and
forward, all patient mail.
Admitting and dismissal clerks: This position in the
business office is supervised by the admitting
supervisor. The job involves admitting and dismiss-
ing patients and communicating with patients about
their account and hospital policy. The clerks use
typewriters, adding machines, telefax machines,
addressograph machines, , IBM keypunches, and
verifiers in performing their duties. Other functions
involve responsibility for petty cash and the office
safe, patient census and daily discharge reports,
patient billing, and completing the paperwork in-
volved with all these duties.
As contrasted to the above business office clerical
employees, certain other hospital employees are
located throughout the hospital within various
departments composed of other service and mainte-
na ice employees. 'Their work and working condi-
tions are materially related to -unit work. By
including these hospital` employees in the service and
maintenance unit herein found appropriate, we avoid
unnecessary fragmentation of employees 'who share
common interests and, consequently, we heed the
mandate of Congress to avoid proliferation while
recognizing the appropriateness of bargaining units
composed of employees who share a community of
interest. Accordingly, we shall, on the facts noted
below, include as hospital service and maintenance
employees the following pharmacy department clas-
sifications: pharmacy technician, pharmacy clerk,
pharmacy delivery clerk, and customer service.
Pharmacy department: The, pharmacy, which is on
the first floor in a public area, is owned and operated
by Employer. About 80 percent of its business is
inpatient. Pharmacy employees receive the same
fringe benefits as those employees in the unit; these
employees along with the purchasing and housekeep-
ing department employees- and second floor employ-
ees punch the same timeclock on the second floor. It
is not contended, the record does not show, and we
find that the pharmacy technician is not a technical
classification within the meaning of the Act. The
pharmacy technician, working strictly within the
hospital, picks up drug orders at 45-minute intervals
from the nursing stations. Re types labels on
medications, pulls drugs from the' shelf, and delivers
all medications to the various hospital units. The job
requires that the individual be able to read a doctor's
order and type a label. It usually takes 3 weeks'
training to be able to perform the job. Because he is
picking up and delivering, to various hospital units,
the pharmacy technician is out of his department
most of the time and "is in contact with ward clerks.
He receives and sends charges and credits on
medication to patients to the business office; keeps
all floor stocks, surgery stock, treatment room stock,
and intensive care unit special care unit stock filled;
and keeps the ' emergency boxes on all floors filled.
Thepharmacy clerk makes sales to customers, puts up
drug stock, orders greeting cards, and assists in
displays. He,has occasional contact with doctors and
patients, and constant contact with the public. The
pharmacy delivery clerk is on call at all times. He is
the driver for the Hospital and picks up and drops
off, as needed by the institution, ,surgical equipment,
medical supplies , specimens , and other like and
related items. The customer service classification is
currently held by a pharmacy student who works on
weekends. He provides delivery services for pharma-
cy customers, inventories the stock supplies, helps
keep the pharmacy area clean and orderly; and types
4 See Mercy Hospitals, supra; Mt. Airy Foundation, d/b/a Mt. Airy Donunican Sisters of Kenosha Wisconsin, Inc., 217 NLRB No 133 (1975);
Psychiatric Center, 217 NLRB No. 137 (1975); St Catherine's Hospital of Newington Children's Hospital, 217 NLRB No. 134 (1975).
MEDICAL ARTS HOSPITAL OF HOUSTON, INC. 1019
labels as does the pharmacy technician. The custom-
er service employee has occasional contact with
doctors, regular contact with the patients and public,
and drives a truck. In these circumstances, as noted
above, we shall include the above pharmacy employ-
ees in the service and maintenance unit .5
Technical employees: In Barnert Memorial Hospital
Center, supra, the Board stated that it would approve
separate units of technical employees in the health
care field. As detailed in Barnert, the kinds of
employees to be included in technical units "are
those who specialized training, skills, education and
job requirements establish a community of interest
not shared by other service and maintenance
employees." The Board noted that this separate
community of interest is frequently, but not always,
evidenced by the fact that such employees are
certified, registered, or licensed.
After carefully examining the record in light of the
Barnert decision, we have determined, on the facts
noted below, that the following classifications of
employees are technical employees and should
therefore be excluded from the service and mainte
nance unit: operating room technician, operating
room technician-surgical assistant, and inhalation
therapy technician. We consider these employees to
be technical employees as they possess special
education, training, qualifications, and skill and/or
exercise independent judgment on a consistent basis.
Operating room technician-surgical assistant (ORT
surgical assistant) and operating room technician
(ORT): The Petitioner would exclude these employ-
ees as technicals while the Employer would include
them. Based on the factors noted below, we agree
with the Petitioner and would exclude them. The
ORT surgical assistant must be a high school
graduate; complete a certified operating room
technician's program, or have 3 years' on-the-job
training as an operating room technician in an
accredited hospital; and have a minimum of 2
additional years' training and experience as a
surgical assistant in all types of general surgical
procedures. He receives functional guidance from the
surgeon and anesthetist, direction from operating
room nurses (i.e., registered nurses and/or licensed
vocational nurses), and overall supervision from the
operating room supervisor. One ORT surgical assist-
ant has worked in this position for Employer for 7 to
8 years . The other ORT surgical assistant has worked
3 years for Employer and 3 years under heart
surgeon Dr. Michael DeBakey. The job function
includes: preparation and maintenance of sterile and
unsterile equipment, instruments, and supplies;
setting up room for surgical procedures and assisting
in circulating during operations as directed; and
scrubs and functions as assigned within a sterile field
as member of a surgical team. An ORT surgical
assistant may, act as surgical assistant to a board-
certified surgeon at the doctor's request and with the
approval of the ORT supervisor. The job requires the
operation of various surgical instruments and equip-
ment; e.g., autoclave, suction equipment, cardiac
monitor, bovie, and/or bircher cautery equipment,
fiber optic instruments, and others. The ORT
surgical assistant can and does perform ' all the
functions of a certified ORT surgical assistant.
Employer admits the ORT surgical assistant and the
operating room technician job responsibilities are
technical in nature and the -persons presently
occupying these, positions have acquired expertise
and educational specialized training and have the
skills necessary for the job requirements. The ORT's
qualifications and duties differ from the ORT
surgical assistant in that the latter is required to have
2 additional years of training, functions as a surgical
assistant on all types of general surgical procedures,
and serves as a surgical assistant to a board-certified
surgeon. In terms of salary,- the ORT surgical
assistant makes 30 cents more an hour than the ORT
or 85 cents more an hour than a surgical aide or
orderly, and the ORT makes 55 cents more an hour
than the aide and orderly. The only ORT had
worked for Employer only 2 weeks at the time of the
hearing but is a graduate of a certified ORT training
school and will take her certification examination in
December 1975. We conclude that the ORT surgical
assistants and ORT are technical employees although
they are not licensed, registered, or certified as the
record establishes; they are required to complete
specialized training courses; and their job duties are
of a technical nature reflecting the use of independ-
ent judgment. Trinity Memorial Hospital of Cudahy,
Inc., 219 NLRB No. 63 (1975). Newington Children's
Hospital, supra.
Inhalation therapy technicians: Employer would
include this classification in the service and mainte-
nance unit. Petitioner would exclude it as technical.
In agreement' with Petitioner and contrary to
Employer, we shall exclude this position from the
service and maintenance unit. The inhalation therapy
technicians are trained for from 3 to 6 months by the
inhalation therapy supervisor and, if they qualify,
they thereafter can treat patients with minimal
supervisory direction. The two employees in this
classification are qualified to take -the certification
examination to be given in December 1975, as they
will have completed 2 years' on-the-job training with
Employer. The other employee in this job classifica-
5 Mercy Hospitals of Sacramento, supra; Nathan and Miriam Barnert NLRB No. 132 (1975).
Memorial Hospital Association d/b/a Barnert Memorial Hospital Center, 217
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion is a part-time employee. During their on-the-job
training , they acquire special knowledge and skills
and under a doctor's orders exercise some independ-
ent judgment in carrying out their job functions.
They know how to operate and correct malfunctions
of their machines, and must know how to sterilize
equipment, set it up , and know when it is malfunc-
tioning . They operate ventilation equipment and set
up oxygen units. Inhalation therapy technicians
assist in ordering supplies, report broken equipment,
chart all treatments on medical sheets which they
initial , and note , among other things, refusals,
reactions, and complaints, which they report to the
head nurse and chart on the paramedical therapeutic
progress notes. They are involved in treatment rather
than diagnostic work . They do not initiate treatment,
but would discontinue , it should they suspect some-
thing wrong and thereafter ask for a supervisor's
judgment . They are always available for cardio and
respiratory distress patients ; work with nurses,
doctors, and their supervisors in surgery , recovery,
intensive care , and patient's rooms as needed. In the
future , it appears that inhalation therapy technicians
will have to complete 1 year of schooling in addition
to on-the-job training requirements for purposes of
taking the certification examination . However, those
inhalation therapy technicians who have already
been certified or qualified will be allowed ' to be
"grandfathered in."
The assistant administrator for nursing services
acknowledged that the inhalation therapy techni-
cians exercise independent judgment . Employer
admitted that inhalation therapy technicians at its
Hospital are like respiratory therapy technicians at
other hospitals . In view of the foregoing, we shall
exclude inhalation therapy technicians from the
service and maintenance unit as they do not share a
community of interest with them. Trinity Memorial
Hospital, supra, and Trumbull Memorial Hospital, 218
NLRB No. 122 (1975).
Supervisory status of diet clerk. Contrary to the
Petitioner , Employer would exclude the diet clerk as
a supervisory employee. For the following reasons,
we shall include the diet clerk. The diet clerk works
in the dietary department , under the supervision' of
the food service director and side by side with the
other ' unit employees . She is hourly paid , wears 'the
same type clothing as other dietary department
employees , and does not attend supervisory meet-
ings. Nor does her name tag indicate that she is a
supervisor. The diet clerk does not have the authority
to hire, transfer, suspend, lay off, recall, promote,
discharge, assign , reward , or discipline other employ-
ees. Nor does she have the responsibility to direct
them other than in a routine manner, to adjust their
grievances , or to effectively recommend any person-
nel action. When a discharge takes place, the diet
clerk's supervisor conducts an independent investiga-
tion and discusses the matter not only with the diet
clerk but with other employees. The food service
director acknowledged, that the diet clerk follows a
prescribed procedure'in calling other employees to
work where one is absent and in assigning them from
one position to another. Although the food service
director arrives 2 hours after the diet clerk, all
employees have a clear understanding of their
responsibilities, all work is done in a prescribed
manner, and the diet clerk does not exercise
independent judgment when the director is absent.
When the food service director is present, the diet
clerk is not able to assign overtime without consult-
ing` the director. There are only limited prescribed
instances when an employee can work overtime, in
the absence of the food service director. The food
service director acknowledged that before giving an
employee a pay increase, or evaluating an employee,
she asks the opinion of other employees, not just the
diet clerk . The single alleged instance of the diet
clerk imposing discipline involved the diet clerk
reporting to her supervisor at her supervisor 's request
what had taken place, with the supervisor actually
imposing and executing discipline. Although the food
service director prepared a supervisory ability perfor-
mance evaluation of the diet clerk , this alone does
not vest the diet clerk with statutory supervisory
status. The diet clerk's duties in ordering vegetables
and food are in accordance with established stand-
ards and require no independent judgment . It thus
appears that the diet clerk serves as a conduit for the
food service director and performs her work within
the prescribed guidelines without exercising inde-
pendent judgment . In these circumstances, we
conclude that the diet clerk should be included in the
unit.
We therefore find the following unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All service and maintenance employees includ-
ing: ward clerk , nurse assistant, orderly, surgery
aide, surgery orderly ; nurse assistant, central
supply aide , transportation/patient escort, phar-
macy technician, pharmacy clerk, pharmacy
delivery clerk, customer service, work leader,
housekeeper , cook, kitchen helper/diet , diet clerk,
printer/warehouseman , but excluding nursing
office secretary, admitting and dismissal clerk,
PBX operator, operating room technician; operat-
ing room technician-surgical assistant, inhalation
therapy technician, warehouseman, all profes-
sional employees, office clerical employees, tech-
MEDICAL ARTS HOSPITAL OF HOUSTON, INC. 1021
nician employees, guards and supervisors as
defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
MEMBER PENELLO, concurring in part, dissenting in
part:
I agree with my colleagues that the nursing office
secretary, admitting and dismissal clerk, and PBX
operator should be excluded from the unit as office
clericals; the pharmacy technician, pharmacy clerk,
pharmacy delivery clerk, and customer service
employee should be included in the unit as they share
a community of interest with the unit employees; and
the diet clerk should be included in the unit on the
ground that she is not a supervisor. In addition, I
agree with my colleagues that Petitioner is a labor
organization.
For the reasons expressed in the dissenting opinion
in Nathan and Miriam Barnert Memorial Hospital
Association d/b/a Barnert Memorial Hospital Center,
217 NLRB No. 132 (1975), and my separate
concurring opinion in Mount Airy Foundation, d/b/a
Mount Airy Psychiatric Center, 217 NLRB No. 137
(1975), I would , however , in disagreement with my
colleagues in the majority , include all nonprofession-
als herein in the service and maintenance unit.