Pontiac Osteopathic Hospital

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1706 (N.L.R.B. 1977)

1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pontiac Osteopathic Hospital and Pontiac Osteopathic
Hospital Laboratory Employees Association, Peti-
tioner. Case 7-RC- 12938
January 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Christopher Honey-
man. Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, this case was
transferred to the Board for decision. Thereafter,
briefs were filed by the Employer and Petitioner.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board finds:
1. The Employer, a nonprofit corporation en-
gaged in providing health care services at its Pontiac,
Michigan, hospital, is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. Petitioner and Intervenor' are labor organiza-
tions within the meaning of the Act.
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.
4. Petitioner and Intervenor seek a unit of all
nonsupervisory employees in the hospital's laborato-
ry. If this unit were found inappropriate, they
indicated a willingness to represent all technical
employees in the laboratory or, if this unit were
inappropriate, all technical employees throughout the
hospital. It is clear from the Board's decision of May
5, 1975, in the lead hospital cases that a unit
consisting either of all nonsupervisory employees in a
hospital laboratory or of all nonsupervisory technical
employees in such a laboratory would be inappropri-
ate. Accordingly, such units cannot be found appro-
priate here and this leaves for determination the
question of the appropriateness of a unit of technical
employees throughout the hospital. The Petitioner
has excluded from the representation it seeks all
employees who are members of currently certified or
recognized bargaining units. Employer has had a
bargaining history of many years with Intervenor
covering nonprofessional employees in the laundry,
dietary and kitchen, building and grounds mainte-
nance, and housekeeping departments, as well as
nurses aides, ward clerks, orderlies, porters, janitors,
and storeroom employees. Employer has also been
bargaining with the Licensed Practical Nurses
League of Michigan, which was certified in 1974, as a
representative of the licensed practical nurses
(LPN's) at the hospital. In view of this representation,
the question arises whether a unit of technical
employees excluding the LPN's is appropriate or
whether the LPN's with a separate bargaining history
should be included in the unit of technical employees.
In the lead hospital cases, the Board held that
LPN's should be included in any separate technical
unit and that a separate unit of LPN's was inappro-
priate. Nathan and Miriam Barnert Memorial Hospital
Association d/b/a Barnert Memorial Hospital Center,
217 NLRB 775 (1975); St. Catherine's Hospital of
Dominican Sisters of Kenosha, Wisconsin, Inc., 217
NLRB 787 (1975). However, in more recent cases, the
Board has honored stipulations for separate units of
LPN's. Otis Hospital, Inc., 219 NLRB 164 (1975); The
Leonard Hospital, 220 NLRB 1042 (1975). In Critten-
ton Hospital, 220 NLRB 1183 (1975), the Board found
appropriate a stipulated unit of technical employees
which did not include LPN's. In Bay Medical Center,
Inc., 218 NLRB 620 (1975), in the absence of a
stipulation, the Board found that a separate bargain-
ing history for LPN's justified finding appropriate a
unit of techmcal employees excluding LPN's.
In the present case, as we have noted, the Licensed
Practical Nurses League of Michigan was certified in
1974 as collective-bargaining representative for
LPN's and has been engaged in negotiations with the
Employer although an agreement has not yet been
reached. This representative has indicated no interest
in representing other technical employees in the
hospital. Neither Petitioner nor Intervenor has
evinced a desire to include the LPN's in the technical
unit. The Employer contends, however, that a techni-
cal unit which excludes LPN's is inappropriate. In
light of the recent decisions of the Board finding
appropriate, in the particular circumstances of those
cases, separate units of LPN's and technical employ-
ees, we find appropriate in the present case a unit of
all technical employees in the hospital, excluding the
LPN's because of their existing separate representa-
tion.
Having determined that a hospitalwide unit of
technical employees excluding LPN's is appropriate,
I Local 79, Service Employees International Union , AFL-CIO
227 NLRB No. 235
PONTIAC OSTEOPATHIC HOSPITAL 1707
we are confronted with the problem of the placement
of employees in the technical unit. The hearing was
held before the Board's decisions in the lead hospital
cases, issued on May 5, 1975, established criteria for
technical employees. Accordingly, the testimony is
not sufficiently comprehensive to permit a determina-
tion of the placement in the technical unit of all
hospital employees. We will, nevertheless, make a
determination of the placement of these employees
where the record permits.
Applying the guidelines of decisions in other
industries, the Board in Barnert Memorial Hospital
Center, supra, found that the separate community of
interest of employees in a technical unit is based upon
specialized training, skills, and education and is
frequently evidenced by the fact that such employees
are certified, registered, or licensed. It noted, how-
ever, that a technical unit also may include other
nonprofessional employees performing work of a
technical nature which involves the use of indepen-
dent judgment and requires the exercise of specialized
training ordinarily obtained through a sustained
period of study in college, technical schools, special
courses, or by work experience. See also, e.g., William
W. Backus Hospital, 220 NLRB 414 (1975); Heights
Medical Center, Inc. d/b/a Heights Hospital, 221
NLRB 563 (1975); Mercy Hospital, 220 NLRB 974
(1975); St. Elizabeth's Hospital of Boston, 220 NLRB
325 (1975). Numerous employees in several sections
of the laboratory are certified or registered in their
technical specializations (e.g., hematology, chemistry,
serology), are eligible for registry or qualified for the
technical work they perform by virtue of courses of
study and experience (e.g., microbiology, cystology),
or have qualified for the technical work they are
required to perform by long periods of experience
before being hired or by on-the-job experience (e.g.,
histology). Accordingly, the employees in these
sections of the laboratory who perform all the
technical functions of their sections interchangeably
with other employees therein will be included in the
technical unit . Employees on the afternoon and the
night shifts apparently are required to be qualified to
perform the technical functions of various sections in
the laboratory.2 A number of these employees are
registered or eligible for registry and carry out their
work interchangeably with the other employees on
the shifts. All the technical employees on these shifts
will therefore be included in the unit. Employees who
have qualified by on-the-job training to perform and
do perform all the functions of technical employees in
the sections in which they are employed are included
in the unit. some employees, however, because of an
insufficient period of training, as in the chemistry and
microbiology sections, qualify to perform only a
portion of the technical functions of the section.
Other employees, as in the blood bank section of the
laboratory, can be trained to do the work of the
section in 2 or 3 months, which is too short a period
to warrant technical employee classification. These
employees will be excluded from the unit.
Other departments in the hospital have registered
or certified employees performing technical duties
(X-ray, respiratory therapy, nuclear medicine) and
other employees trained or in training on the job to
perform the same job functions interchangeably with
the registered or certified employees (respiratory
therapy, nuclear medicine). These employees will be
included in the unit. In the X-ray department the
nonregistered or uncertified employees perform only
uncomplicated X-rays. In respiratory therapy some
employees have had insufficient training to perform
many of the job requirements fulfilled by the regis-
tered or more experienced employees. In the other
departments neither the period of necessary training
nor the job requirements justify a technical classifica-
tion (EKG, EEG, physical therapy, group therapy,
technical assistant in nuclear medicine). These em-
ployees will be excluded from the unit.
Although there is some testimony concerning the
pharmacy technicians, there is insufficient record
information to determine whether they qualify as
technical employees. This is also true with respect to
some employees in the laboratory, namely, the
phlebotomist and the single employee in the miscella-
neous section. As to a number of other departments
in the hospital, there is no evidence establishing the
qualification of employees for inclusion in a technical
unit. In these situations where the record is deficient,
we shall permit the parties to determine the place-
ment of employees by stipulation. In the case of
contested employees, they shall be permitted to vote
subject to challenge.
The parties have stipulated that the chief technolo-
gist in the laboratory is a supervisor and the testimo-
ny establishes the statutory requirements for his
exclusion from the unit. There is a disagreement,
however, as to whether the section chiefs and an
afternoon supervisor in the laboratory should be
excluded from the unit as supervisors.
Both the section chiefs and afternoon supervisor
are hourly paid employees and spend from 80 to 100
percent of their time doing benchwork of the same
character as the other technical employees in their
2 The Employer operates the laboratory around the clock . a day shift serology, microbiology, cystology, histology ) Employees on the afternoon
beginning at 7.30 a.m ., an afternoon shift commencing at 3.30 p m, and a and night shifts, however, cover all sections of the laboratory when on duty
night shift starting at 11:30 p .m. Most of the laboratory employees work on and must, therefore, have the ability and expertise to perform in more than
the day shift in a particular section or specialty (e g., hematology, chemistry , one area of specialization
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sections . The Employer contends that they are
supervisors because they are in charge of their
sections , can permit employees to go home , formulate
work schedules , expedite work , troubleshoot on the
equipment , carry out discipline , and help train
employees . In fact , however, they have final responsi-
bility with respect to few, if any , of the functions they
are claimed to perform . In almost every case, final
action is taken or approved by the chief technologist
or his superior . As to those activities on which they
take final action , none involves the use of indepen-
dent judgment . For the most part , their relation to the
other technical employees in the section is that of a
work leader who occasionally gives directions and
suggests procedures on the basis of superior technical
competence rather than in the execution of a manage-
rial function. We find the section chiefs and the
afternoon supervisor are not supervisors and should
be included in the unit of technical employees.
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to the Regional Director for
Region 7 for further proceedings in accordance with
this Decision and Order and for whatever other
action said Regional Director may deem appropriate.