Mental Health Center of Boulder County, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1976

222 N.L.R.B. 901 (N.L.R.B. 1976)

MENTAL HEALTH CENTER
Mental Health Center of Boulder County, Inc., Em-
ployer-Petitioner and American - Federation of
State, County and Municipal Employees, AFL-
CIO. Case 27-RM-461
February 13, 1976
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, s-
hearing was held on September 11 and 19 and Octo-
ber 20, 1975, before Hearing Officer Daniel C. Fer-
guson. Following the hearing and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, the case was transferred to the
Board for decision. A brief has been filed by Ameri-
can Federation of State, County and Municipal Em-
ployees, AFL-CIO, herein called the Union.
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 this case, the Board
finds:
1. The Employer is a nonprofit corporation orga-
nized under the laws of the State of Colorado, and
operates mental health care facilities in Boulder
County, Colorado. The total gross annual revenues
of the Employer are approximately $1.8 million, 30
percent of which comes from the Federal Govern-
ment, 56 percent from the state government, 2 per-
cent from Boulder County, 2 percent from various
cities within Boulder County, 2 percent from the
United Way Agency, and 8 percent from fees collect-
ed from various clients. -
The Employer is governed by a board of directors
to whom the executive director reports. The execu-
tive director has as his immediate subordinates a di-
rector of program evaluation and research, a chief of
medical services, a chief of clinical services, and a
director of the drug program. Under these directors
are various units comprising medical services, drug
programs, adolescent services, outpatient services, re-
habilitation services, halfway house services, crisis
programs, and certain mental health services specifi-
cally established for the towns of Longmont, Broom-
field, and Lafayette, Colorado.
The parties stipulated that the Employer is en-
901
gaged in interstate commerce within the meaning of
the National Labor Relations Act, as amended. On
the basis of the facts noted above, we agree with that
stipulation and therefore assert jurisdiction over the
Employer.'
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 petition for an election in
the instant case with the Board on August 19, 1975.
In February 1975, the Employer had been informed
by the Colorado Department of Labor and Employ-
ment that the National Labor Relations Board would
not accept petitions for elections from entities such
as the Employer but that the State of Colorado
would do so. Thereafter, a representation election
was held at-the Employer on April 7, 1975, under the
auspices of the Colorado Department of Labor and
Employment. The election results indicated that, of
the employees voting, a majority voted for the Union
and, on April 30, 1975, the Union was certified by
the- State of Colorado as the bargaining agent in the
unit represented in the election. That unit comprised
all the employees of the Employer, excluding its su-
pervisory personnel. The unit included both nonpro-
fessional employees and employees we find to be
professional, infra. The professional employees were
not given a separate vote in the state election as to
their inclusion in the same unit with 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
not-for-profit 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.
Notwithstanding that the Board had jurisdiction
over the Employer from the time the health care
amendments to the Act became law, the parties opt-
ed for a state election the results of which led to the
Union's certification by an appropriate state agency.
It is well established that the Board will recognize the
validity of state-conducted elections and certifica-
tions where the election procedure was free of irregu-
larities and reflected the true desires of the employ-
1 See, e.g., Sodat, Inc., 218 NLRB No 202 (1975), Catholic Charities of
Buffalo, New York, Inc., 220 NLRB No 5 (1975).
222 NLRB No. 146
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees and, in such circumstances, the Board will find
that no question concerning representation exists
when a petition is filed with the Board.2 However, in
the instant case, the election held by the State of Col-
orado appears to involve a unit which is, on its face,
at variance with the policies enunciated by Congress
in the National Labor Relations Act. Specifically, the
unit in which the State of Colorado 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" election
within the meaning of the National Labor Relations
Act and hence we do not accord any weight to the
election.' Rather, we find a question concerning rep-
resentation is presently before us, based on the peti-
tion filed by the Employer.
4. The Employer initially filed a petition for a unit
of office administrative personnel, cafeteria employ-
ees, and janitorial employees employed by the Em-
ployer, excluding professional employees, technical
employees, managerial employees, confidential em-
ployees, guards, and supervisors as defined in the
Act. At the hearing, however, the Employer indi-
cated it sought an all-employee unit with the usual
exclusions and with the professional employees being
given a separate vote as to whether they wish -to be
represented separately or with the nonprofessionals
or not at all. At the hearing, the Union did not op-
pose the concept of the all-employee unit but con-
tended that the State of Colorado had already certi-
fied-the Union in such a unit. The Union conceded
that the professional employees had not been accord-
ed a separate vote in the state election and therefore
argued that the professionals only should vote in any
Board-ordered election. -
As we have noted, supra, notwithstanding the state
certification of the Union, we do not consider the
election which yielded that certification to have been
a valid election within the meaning of the National
Labor Relations Act so that we can give comity to
2 Cornell University, 183 NLRB 329, 334 (1970), The West Indian Co., Ltd,
129 NLRB 1203, 1204 (1961).
3 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).
the State's certification. It follows that, as the Union
is relying on that state certification in furtherance of
its argument that the professionals only be allowed to
vote, we must reject that argument. Instead, if the
facts warrant, we shall direct an election in an overall
employee unit, according the professionals a separate
vote on representation .4 _
The Employer divides its employees generally into
clinical and nonclinical staff categories. Its nonclini-
cal employees are its office administrative personnel
and they function as the support staff for the clini-
cal staff. They have frequent contact with the profes-
sional staff. The nonclinical employees' duties in-
clude typing, filing, answering telephones, and
performing various bookkeeping functions.
As no union seeks to represent any of the
Employer's employees in less than an overall unit,
and as the Union itself already has indicated in the
state proceeding its willingness to represent the em-
ployees in an overall unit, we therefore conclude that
a single unit of all the Employer's employees may be
an appropriate unit in which to conduct an election,
with the Employer's professional employees being
accorded a separate vote.
The Employer and the Union are in agreement as
to those who comprise the Employer's professional,
employees, i.e., all those employees designated as on
the clinical side of the Employer's operation and
called the mental health clinicians.
The Employer's clinical staff is composed of psy-
chiatrists, psychologists, registered nurses, social
workers with their masters in social work, counselors
and rehabilitation counselors, workers with under-
graduate degrees in other than the areas noted above,
and certain' mental health workers without degrees.
A brief view of the Employer's operation "reveals
that there are various methods by which a person
may seek mental health assistance from the Employ-
er. The usual method, however, is for a person to call
for an interview. Thereafter, when the person'arrives
at the Employer, he or she is interviewed by an in-
take worker. The intake worker takes down all re-
quired information,. which may include a-synopsis of
the person's "presenting problem" and some social
background on the person. The intake worker then
makes an assignment of the person to one of, the
Employer's, "teams" which will be the team which is
concerned with the particular intake situation which
the intake worker has determined the person to be
in.5
The Employer strictly adheres to the team concept
in its operation. There are 14 teams at the Employer
and the teams deal either with various emotional
4 Sonotone Corporation, 90 NLRB" 1236, 1241 (1950)
5 E g., outpatient intake , crisis intake , hospitalization intake.
MENTAL HEALTH CENTER 903
problems of the clients or they supply general mental
health assistance to various localities in Boulder
County. Each team is headed by a team leader. A
particular team may be composed of any combina-
tion of the various mental health clinicians listed
above since the teams function on an interdiscipli-
nary model.
After a person has -been referred to a particular
team, the team leader further assigns the person to
himself or to another team member as the primary
therapist for the person. The assignment of the per-
son to a particular therapist is not made on the basis
of the academic degree that the therapist has but on
the basis of a therapist's availability and therefore a
person's primary therapist- could as well be a clini-
cian with a B.A. degree as it could be a Ph.D. `degree
holder. A nongraduate degree therapist thus func-
tions in clinical-terms in the same way as a graduate
degree holder. Only at entry level is there any differ-
ence between the two groups as, there, a nongraduate
degree therapist may require more clinical supervi-
sion and may be given less serious psychiatric prob-
lems to deal with than a graduate degree holder. But
the nongraduate degree holders are allowed to pro-
gress in clinical responsibility as their experience in-
creases.
Once each- week, the teams meet to discuss their
operations for the week and to discuss various of the
cases the mental health clinicians then have under
assignment. Suggestions on treatment can then be
voiced by other team members.
The work of the mental health clinicians involves
the consistent exercise of discretion and judgment in
the treatment of those seeking psychiatric assistance.
In such circumstances, their work is predominantly
intellectual and not capable of being appropriately
quantified. The clinical work of the clinicians is also
continually geared to a team concept with members
having input into the work of others on a team. Thus,
in viewing the clinicians' duties and -the Employer's
operation in its entirety, we find the Employer's men-
tal health clinicians as a group to be professional em-
-ployees.'
The parties are also in agreement as to the catego-
ries at the Employer's facilities to be.considered non-
professional. These categories include receptionists,
research assistants (who compile statistical reports),
librarians (who handle, -care fore and store various
records and files),- secretaries, programmers, and in-
surance technicians: The parties further agree . on var-
ious stipulations to exclude certain categories of em-
ployees from any- unit found appropriate as either
confidential employees 7 or supervisors.' The parties
agree further to exclude five social worker trainees,
who are students and who are not being paid by the
Employer for their work at the Employer. Lastly, the
parties agree to exclude all those employees who
work less than 20 hours per week at-the Employer as
having an insufficient community of interest with the
other employees.9 We accept these stipulations of the
parties.
This -leaves for our consideration as to their unit
placement the following categories of employees:
team leaders, the administrative assistant to the- drug
program director, the office manager, the public rela-
tions director, and the intake worker.
Team Leaders: The Employer contends that the
team leaders are supervisors within the meaning of
the Act and the Union argues they are employees. As
noted above, each of the Employer's various teams is
headed by a team leader. It appears that there are
anywhere from 2 to 8 employees on each of the 14
teams, with the exception that the crisis services team
rotates a total of 30 people on and off its team. Each
of the team leaders has an equal degree of authority,
or responsibility, over his or her team and thus their
status will be considered as a whole rather than indi-
vidually.10
The team leaders have a dual responsibility in that
they are in overall charge of both the clinical and
administrative functions of their respective teams. It
is the team leader who assigns the clinicians to par-
ticular clients and it is the team leader who presides
over weekly -meetings of the- team at which various
clincial problems are discussed. However, there ap-
pears to be much give-and-take and team input at
these meetings so that the team leader's role in these
meetings may devolve into simply being another
member of the team offering suggestions and cri-
tiques.'1
The team leader interviews applicants for hire on
his or her team, but others on the team may be in-
volved in interviewing the applicant as well. The de-
cision on recommending someone for hire thus may
well be a team decision. It is the team leader, howev-
er, who submits the recommendation for hire to high-
er authorities who have then hired a recommended
applicant without further interview of the person.
8 Executive director, director of evaluation and research , medical director,
director of the drug program, and director of clinical services. The parties
also agree to exclude the accountant.
9 See Bachmann Uxbridge Worsted Corporation (Uxbridge Mill), 109
NLRB 868, 870, fn 9_(1954)
10 There may be a distinction in the way certain of the teams operate in
certain areas depending on whether the team is geared to a particular sub-
ject, e.g., drugs, or whether the team services a particular locality, e.g ., Long-
mont, Colorado. These differences, however, do not include any of the fol-
lowing areas of discussion related to the supervisory status of the team
leaders.
See The Ryan Aeronautical Co, 132 NLRB 1160, 1-164 ( 1961) n Team leaders do have weekly separate meetings, however , with higher
Administrative assistant to the executive director and bookkeeper. management
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Team leaders may not fire employees on their
own, but they have effectively recommended such
action to higher authority . Team leaders have au-
thority to engage in direct consultation with a team
member concerning what the team leader considers
to be an offense by that member or they may send a
letter concerning that alleged offense to the team
member or higher authority.
Team leaders do evaluations of their team mem-
bers, which , after consultation with the member in-
volved, are then forwarded to higher authority. These
evaluations may then lead to promotions for the
team members.
Team leaders themselves perform clinical case-
work and may well spend more time in such pursuits
than in functions the Board usually denominates as
supervisory . Further, the Employer's team concept
means that, at times, the team leader is functioning
in much the same way as any other team member.
However, team leaders do assign their members
work ; they may responsibly recommend disciplinary
action against their team members; and they perform
evaluations which may affect their team members'
salary status . We conclude these duties are sufficient
to classify the team leaders as supervisors and we
shall therefore exclude them from the unit.
Administrative Assistant to the Drug Director: The
Employer contends she is a confidential employee
and the Union would include her in any unit. Her
supervisor, the drug director , is on the Employer's
executive committee and he is part of the Employer's
labor relations team. The administrative assistant is
present at meetings with her boss where raises and
disciplinary actions are discussed. She also has access
to nonpublic reports that come out of the executive
committee meetings . We find the administrative as-
sistant to the drug director to be a confidential em-
ployee excluded from the unit.
Office Manager: The Employer claims this catego-
ry is supervisory or managerial and the Union would
include the category . The office manager has four
persons under her and she reports directly to the ex-
ecutive director . She interviews applicants for jobs,
makes recommendations on hiring and. firing em-
ployees which the Employer considers, and evaluates
those under her. She is responsible for the day -to-day
work activities of those under her. We find her to be
a supervisor under the Act and shall exclude her
from the unit.
Public Relations Director: The parties did not reach
agreement on whether this category was professional
or nonprofessional. The public relations director has
training or experience in preparing materials for the
media, preparing documents for the Employer, and
writing public relations materials . We find the public
relations director to be a nonprofessional employee.
Intake Worker: The evidence presented does not
allow us to determine whether these employees are
professional employees so we shall permit the intake
worker(s) to vote under challenge in the professional
employee voting group.'2
In sum, we find that the following employees may
constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act:
All full-time mental health clinicians, and all
full-time receptionists, research assistants, secre-
taries, the librarian, the public relations director,
the programmer, and the insurance technician
employed by the Employer, excluding the execu-
tive director, the director of evaluation and re-
search, the medical director, the director of the
drug program, the director of clinical services,
the accountant, the bookkeeper, the administra-
tive assistant to the executive director, social
worker trainees, employees working less than 20
hours per week, team leaders, the administrative
assistant to the drug director, the office manag-
er, all managerial employees, guards, and super-
visors as defined 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 full-time receptionists, re-
search assistants, secretaries, the librarian, the
public relations director, the programmer, and
the insurance technician employed by the Em-
ployer, excluding the mental health clinicians,
the executive director, the director of evaluation
and research, the medical director, the director
of the drug program, the director of clinical
services, the accountant, the bookkeeper, the ad-
ministrative assistant to the executive director,
social worker trainees, employees working less
than 20 hours per week, team leaders, the ad-
ministrative assistant to the drug director, the
office manager, and all managerial employees,
12 Should the intake worker(s)' vote be determinative in either the profes-
sional or the nonprofessional voting group, their status as professional or
nonprofessional employees will have to be ascertained.
MENTAL HEALTH CENTER 905
guards, and supervisors as defined in the Act.
Voting Group (b): All full-time mental health cli-
nicians employed by the Employer, excluding all
receptionists, research assistants, secretaries, the
librarian, the public relations director, the pro-
grammer, the insurance technician, the execu-
tive director, the director of evaluation and re-
search, the medical director, the director of the
drug program, the director of clinical services,
the accountant, the bookkeeper, the administra-
tive assistant to the executive director, social
worker trainees, employees working less than 20
hours per week, team leaders, the administrative
assistant to the drug director, the office manag-
er, all managerial employees, guards and super-
visors 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-
pose of collective bargaining by American Fed-
eration of State, County and Municipal Employ-
ees, 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, the Union may notify the Regional
Director to that effect within 10 days of the date of
this Decision 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 full-time mental health clinicians, and all
full-time receptionists, research assistants, secre-
taries, the librarian, the public relations director,
the programmer, and the insurance technician
employed by the Employer, excluding the execu-
tive director, the director of evaluation and re-
search, the medical director, the director of the
drug program, the director of clinical services,
the accountant, the bookkeeper, the administra-
tive assistant to the executive director, social
worker trainees, employees working less than 20
hours per week, team leaders, the administrative
assistant to the drug director, the office manag-
er, all managerial employees, guards, and super-
visors 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 full-time receptionists, research assis-
tants, secretaries, the librarian, the public rela-
tions director, the programmer, and the insur-
ance technician employed by the Employer,
excluding the mental health clinicians, the exec-
utive director, the director of evaluation and re-
search, the medical director, the director of the
drug program, the director of clinical services,
the accountant, the bookkeeper, the administra-
tive assistant to the executive director, social
worker trainees, employees working less than 20
hours per week, team leaders, the administrative
assistant to the drug director, the office manag-
er, all managerial employees, guards, and super-
visors as defined in the Act.
(b): All full-time mental health clinicians em-
ployed by the Employer, excluding all reception-
ists, research assistants, secretaries, the librarian,
the public relations director, the programmer,
the insurance technician, the executive director,
the director of evaluation and research, the med-
ical director, the director of the drug program,
the director of clinical services, the accountant,
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bookkeeper, the administrative assistant to drug director, the office manager, all managerial
the executive director, social worker trainees, employees, guards, and supervisors as defined in
employees working less than 20 hours per week, the Act.
team leaders, the administrative assistant to the [Direction of Election and Excelsior footnote omit-
ted from publication.]