Mount Airy Psychiatric Center

National Labor Relations Board - Board Decisions

May 5, 1975

217 N.L.R.B. 802 (N.L.R.B. 1975)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mount Airy Foundation , d/b/a Mount Airy Psychia-
tric Center and Retail Clerks Union -Local No. 7,
Chartered by Retail Clerks International Associa-
tion, AFL-CIO, Petitioner. Case 27-RC-4902
May 5, 1975
DECISION ON REVIEW AND DIRECTION OF
ELECTION
On November 19, 1974, the Regional Director for
Region 27 issued a Decision and Direction of Election
in the above-entitled proceeding in which he found
appropriate a unit of all patient care employees, includ-
ing licensed practical nurses, nurses assistants, recrea-
tional therapists, ward secretaries, and alcohol treat-
ment counselors; but excluding registered nurses,
pharmacists, social workers, laboratory and x-ray tech-
nicians, dietary employees, housekeeping employees,
and office clerical employees. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board's Rules and Regulations, Series. 8, as amended,
the Employer filed a timely request for review of the
Regional Director's decision.
On January 16, 1975, the Board, having determined
that this and a number of other cases in the health care
industry presented issues of importance in the adminis-
tration of the National Labor Relations Act, as
amended, scheduled oral argument in several of the
cases, including this one, as well as oral argument on
the general question of the composition of appropriate
bargaining units in the health care industry.' Oral ar-
guments were heard on January 27, 1975. Briefs amici
curiae were filed by interested parties and have been
duly considered by the Board.
By telegraphic order dated February 4, 1975, the
Board granted the Employer's request for review in this
case and stayed the election pending decision on re-
view. Thereafter, the Employer filed a brief on review
and the Petitioner filed a statement in support of the
Regional Director's decision.
The Board has considered the entire record in this
case, with respect to the issues under review, -including
the brief and statement on review, and the amicibriefs,
and makes the following findings:
The Employer is a nonprofit licensed psychiatric
hospital engaged in mental health care in Denver,
Colorado. The hospital has 85 beds and it employs
approximately 100 persons. It is administratively or-
ganized into two major departments: patient care and
support services.
The Petitioner requests a unit of all patient care
employees which it contends consists of nursing assist-
ants, occupational and recreational therapists, and
Member Kennedy dissented from the grant of oral argument
ward - secretaries. Petitioner, however, expressed its
willingness to represent alcohol treatment counselors
and LPN's should they be found to be appropriately
within the unit. The Employer contends that the only
appropriate unit would be one of all nonprofessional
employees. Thus it seeks to expand the unit sought by
Petitioner to further include all maintenance,
housekeeping, dietary, and office clerical employees,
but to exclude the occupational therapists and LPN's
on the ground that they are professionals, The Regional
Director found the employees sought by Petitioner to
constitute an appropriate unit on the basis of their
direct involvement in patient therapy and care, but, in
line with Petitioner's expressed willingness to represent
them and on the basis of their similar involvement in
direct patient care, the Regional Director also included
the alcohol treatment counselors and LPN's in the unit
found appropriate. He further found merit in the Em-
ployer's contention that the occupational therapist
sought by Petitioner was a professional employee.
We scheduled oral argument in this particular case
essentially to consider whether the dichotomy, urged
by Petitioner and employed by the Regional Director,
between "direct" and "indirect" patient care was viable
to the extent that it might provide, in part, a sound and
manageable basis upon which the Board could fashion
appropriate units in keeping with our legislative man-
date to avoid an undue fragmentation of bargaining
units in this vitally important industry.
Having given prolonged and careful consideration to
the issue, we have determined that the dichotomy is not
sufficiently definable to warrant its utilization,
The contentions of the parties throughout our delib-
erations have been exhaustive. If any particular fact is
evident it is the fact that all employees in the health
care industry, sharing as they must a genuine concern
for the well-being of patients, are involved in "patient
care." The degree or immediacy of such involvement
may concededly vary but, given the nature of our unit
determinations, distinguishing between "direct" and
"indirect',' care can fairly be anticipated to be a distinc-
tion of specious value. Ultimately the questions to be
posed will involve such ephemeral inquiries as whether
an employee who serves a meal to a patient is indirectly
involved in that patient's "care," whereas an employee
isolated in a room collecting data on blood samples is
directly involved in the patient's "care." Is a mainte-
nance employee fixing a thermostat in the patient's
room less involved in the patient's "care" than the
ward secretary monitoring the activity of a particular
area of the institution? Examples are endless. All lead
to the conclusion that the dichotomy poses more prob-
lems than it solves.
In terms of this particular case, we note that the
parties are in apparent agreement that nursing assist-
217 NLRB No. 137
MOUNT AIRY PSYCHIATRIC CENTER 803
ants, recreational therapists, ward secretaries, alcohol
treatment counselors, and LPN's are appropriately
within the unit found by the Regional Director. On that
basis, we shall not disturb their grouping.2
As to those classifications in dispute, for the reasons
stated in Mercy Hospitals of Sacramento, 217 NLRB
765, issued this day, we will not include business
office clerical employees. With regard to the
housekeeping, dietary, and maintenance employees,
whom the Petitioner would exclude, we note that these
employees work the same hours, enjoy the same fringe
benefits, are paid at essentially comparable rates, share
the same probationary'periods, and have equal oppor-
tunities for advancement through job postings as do
many other employees upon whose inclusion in the unit
is agreed. Within the housekeeping, dietary, and main-
teriance groups there is frequent interchange; no em-
ployees perform sufficiently skilled functions militating
against their inclusion. They all spend major parts of
their workday in the company of other included em-
ployees. We shall therefore include them in the unit
found appropriate.
Finally, with regard to the x-ray and laboratory tech-
•nicians, Employer originally joined Petitioner in stipu-
lating to their exclusion but for an apparently different
reason than Petitioner; namely, that they were profes-
sional employees. At oral argument Employer changed
its position and sought their inclusion in any unit found
appropriate. The inclusion of these technicians is thus
in dispute at this time. We shall include them in the
unit found appropriate in accordance with our decision
in Barnert Memorial Hospital Center, 217 NLRB
2 We agree with the Regional Director's conclusion that the occupational
therapist is a professional employee The occupational therapist must com-
plel e 4 years of academic work and 1 year of postgraduate clinical work and
pass a national examination This finding does not extend to any other
employees, including the occupational therapist' s assistants , who work in
the occupational therapy department. The Employer, in seeking an all non-
professional unit, did not agree to the inclusion of all LPN's but only on the
ground that they too are professional employees In Nathan and Miriam
Bainert Memorial Hospital Association d/b/a Barnert Memorial Hospital
Center, 217 NLRB 775, and Newington Children's Hospital, 217 NLRB
793, issued this day, we have decided, inter alia, that LPN's on the basis
of their licensing requirements and performance of specialized duties are
properly classified as "technical" but not "professional" employees See also
Jackson Manor Nursing Home, Inc. and/or Isaac Mizrahi d/b/a Jackson
Manor Nursing Home, Snapper Creek Nursing Home and Arch Creek Nurs-
ing Home, 194 NLRB 892 (1972).
We do not, therefore, view the Employer's position on LPN's, seeking as
it did an all nonprofessional employee unit, as disagreeing with the conclu-
sion to include LPN's in the unit found herein once the LPN's nonprofes-
sional status has been determined
We further note that our reliance on Petitioner 's willingness to represent
the LPN's in the unit found appropriate is not inconsistent with our refusal
in Barnert, supra, to adopt their stipulated exclusion from either of the units
sought therein The Barnert petitioner sought, in addition to a service and
maintenance unit, a separate technical employee unit Our determination
not to adopt the parties' stipulation to exclude LPN's was based on our
established policy of requiring the inclusion of all technical employees when
a technical unit is sought See The Bendix Corporation, Kansas City Divi-
sion, 150 NLRB 718 (1964); Woodland Park Hospital, Inc, 205 NLRB 888
(1973), overruling Ochsner Clinic, 192 NLRB 1059 (1971)
775, supra. These two employees do not appear to be
licensed, registered, or certified by an appropriate au-
thority nor does the record indicate that they are in-
volved in functions requiring a sufficiently consistent
exercise of independent judgment. Moreover, compris-
ing, as they apparently do, the only remaining em-
ployees arguably performing a "technical" function,'
to permit their exclusion from the unit found appropri-
ate can only lead to the unwarranted unit fragmenta-
tion we are admonished to avoid.
Accordingly, having concluded that the only appro-
priate unit which embraces all employees sought by
Petitioner is the hospitalwide unit of all nonprofes-
sional employees, including, in the circumstances of
this case, all LPN's and x-ray and laboratory techni-
cians, but excluding business office clerical
employees,' we find the following employees of the
Employer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All employees of the Employer, excluding all busi-
ness office clerical employees, professionals,
guards, and supervisors as defined in the Act.
[Direction of Elections omitted from publication.]6
MEMBER PENELLO, concurring:
I agree with my colleagues in the majority that the
"patient care" unit sought by the Petitioner is too nar-
row in scope and therefore inappropriate. I also agree
with their conclusion that the appropriate unit herein
for collective bargaining is one which includes all em-
ployees of the Employer with the exception of profes-
sionals and business office clericals.
My agreement with the unit determination, however,
is not based solely on the facts of this particular case,
but rather on my understanding of the congressional
mandate, as evidenced by the legislative history preced-
ing the passage of the 1974 health care amendments to
the National Labor Relations Act, to avoid undue pro-
3 The alcohol treatment counselors whom the Employer would include
and whom Petitioner has expressed a willingness to represent are clearly not
technical employees at the Employer's facility. No requirements for the
position exist beyond the Employer's preference that they "be empathetic
of the alcohol user by personal experience."
4 We do not agree with Member Kennedy that a unit which is otherwise
appropriate-at this facility, the business office clerical unit-becomes inap-
propriate simply because the labor organization seeking to represent em-
ployees in that unit represents, or is seeking to represent, employees in
another appropriate unit. To say the business office clericals have sufficient
separate interests to warrant their own unit when union "X" seeks to repre-
sent them but not when union "Y" does appears to us illogical and, in a
sense , unfair both to the business office clericals and to union "Y "
5 As the unit found appropriate is broader than that originally petitioned
for by the Petitioner, the Regional Director shall determine whether its
showing of interest is sufficient before proceeding with the election
6 [Excelsior footnote omitted from publication.]
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liferation of bargaining units in the health care .
industry.7
In the instant case, my colleagues in the majority
have included the LPN's, but only because the Peti-
tioner expressed a willingness to represent them should
they be found to be appropriately within the unit by the
Board. The two technicians involved herein have also
been included. However, their inclusion is based
primarily on the decision in Barnert Memorial Hospital
Center, 217 NLRB 775, issued this day, with which
I disagree, wherein a Board majority held that only
such employees, who are not -licensed, certified, or
registered,' or who are not involved in functions re-
quiring a sufficiently consistent exercise of independent
judgment, share a community of interest with service
and maintenance employees and must be included in
the same unit.
In my view, LPN's do not constitute a separate ap-
propriate unit, and therefore they must be included in
an overall service and maintenance unit without regard
to whether or not they were requested by the
Union.' Furthermore, I am of the view that all techni-
cal employees, whether or not they are licensed, certi-
fied, or registered, must also be included in the same
overall unit. In my judgment, the granting of a separate
unit for technical employees, including LPN's, who are
licensed, certified, or registered, or who are involved in
functions requiring a sufficiently consistent exercise of
independent judgment, as my colleagues in the
majority have agreed to do,10 is contrary to the con-
gressional mandate to avoid undue proliferation of bar-
gaining units in the health care industry.
MEMBER KENNEDY, dissenting in part:
I join my colleagues in rejecting the concept of direct
patient care as a basis for making unit determinations.
I agree-that the unit appropriate herein should include
all service and maintenance employees of the Em-
ployer. My disagreement with my colleagues in their
unit finding in this case is limited to their failure to
include the business office clerical employees in the
same unit with service and maintenance
employees." I would include the business office cleri-
7 S Rept 93-766, 93d Cong., 2d sess. 5 (1974), H. Rept 93-1051, 93d
Cong., 2d sess. 7 (1974).
8 The technicians involved herein are not licensed, certified, or registered.
9 To the extent that the decision in Extendicare of West Virginia, Inc,
d/b/a St. Luke's Hospital, 203 NLRB 1232 (1973), is inconsistent with my
view as expressed herein with regard to LPN's, I would overrule it
10 See Barnett Memorial Hospital Center, supra.
11 I am in complete agreement with the views expressed by Member
Penello in his separate opinion with respect to the inclusion of "licensed,
certified, or registered" employees and the LPN's in a service and mainte-
nance unit.
The majority opinion notes that I dissented from the order granting oral
argument in this and other health care cases. I predicated that dissent upon
the opinion that the legislative history and the comprehensive briefs which
have been filed in these and other health care cases adequately present the
issues In my view, the delay in the resolution of these issues was predictably
cal employees in the unit in which an election is being
directed since the same Union seeks to represent them.
The Employer herein has filed a request for review
with-the Board in the companion Case 27-RC-4949 in
which the Regional Director has directed an election in
a unit of all office clerical employees." The same
Union, Retail Clerks Union Local No. 7, is the-Peti-
tioner in both the instant case and Case
27-RC-4949. The establishment of a separate business
office clerical unit under these circumstances is an un-
warranted fragmentation of the unit in this small hospi-
tal.
I reiterate the view expressed in my dissent in Exten-
dicare of West Virginia13 that this Board should not
splinter "a comprehensive unit into separate units
when there is a single union involved and no prior
history of collective bargaining." I think my colleagues
err in splintering this small hospital's work force into
a separate unit of business office clericals and another
unit of service and maintenance employees.
The legislative history of the health care amend-
ments makes clear that Congress concluded that the
decision inExtendicare of West Virginia, supra, grant-
ing a separate unit for LPN's was inconsistent with the
Board's own policy to avoid fragmentation and with
the congressional mandate against proliferation of bar-
gaining units in this industry. I construe footnote 1 of
the Senate and House Reports as an expression of dis-
pleasure with the Board's decision to grant a separate
unit for LPN's where the same union is seeking to
represent the service and maintenance employees.14
My colleagues heed the advice of Congress and in-
clude the licensed practical nurses in the broad unit of
nonprofessional employees but exclude the business of-
fice clericals from that unit. I fail to perceive how the
duties and interests of the clericals in the business office
are so dissimilar from the other hospital clericals as to
undesirable for the employees, the unions, and the employers in the health
care field
12 Presumably, the office clericals included in the unit in Case
27-RC-4949 are the same business office clericals excluded in the instant
case.
13 203 NLRB 1232 (1973)
14 The Senate Report and the House Report contained the following
passage in identical form
Bargaining Units
Due consideration should be given by the Board to preventing prolif-
eration of bargaining units in the health care industry. In this connec-
tion, the Committee notes with approval the recent Board decisions in
Four Seasons Nursing Center, 208 NLRB No. 50, 85 LRRM 1093
(1974) and Woodland Park Hospital 205 NLRB No. 144, 84 LRRM
1075 (1973), as well as the trend toward broader units enunciated in
Extendicare of West Virginia, 203 NLRB 1232, 83 LRRM 1242
(1973) 1
1 By our reference to Extendicare we do not necessarily approve all
the holdings of that decision.
MOUNT AIRY PSYCHIATRIC CENTER 805
justify a separate unit when the same Union seeks to
represent them . Every department of a hospital has
significant clerical responsibilities . I reject the view that
the working conditions of business office clericals es-
tablish such a community of interest that they must be
represented in a separate unit. I believe the majority
here is making the same error with respect to business
office clericals that the Board made with respect to
LPN's in the Extendicare case.
As pointed out in my dissent in St. Catherine's Hospi-
tal of Dominican Sisters of Kenosha, Wisconsin, Inc.,
217 NLRB 787, issued today, it defies logic and
congressional policy to segregate the employees into
two separate units for representation purposes. I would
grant review in Case 27-RC-4949 and include the busi-
ness office clericals in the unit in which an election is
being directed.