St. Francis Hospital

National Labor Relations Board - Board Decisions

Aug 5, 1975

219 N.L.R.B. 963 (N.L.R.B. 1975)

ST. FRANCIS HOSPITAL 963
St. Francis Hospital, Employer-Petitioner and District
1199, National Union of Hospital and Health Care
Employees , RWDSU, AFL-CIO. Cases 1-
RM-928, I-RM-929, and 1-RM-930
August 5, 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 S. A. di
Cero of the National Labor Relations Board. Fol-
lowing the hearing and pursuant to Section 102.67 of
the National Labor Relations Board Rules and Reg-
ulations and Statements of Procedure, Series 8, as
amended, and by direction of the Regional Director
for Region 1, this case was transferred to the Nation-
al Labor Relations Board for decision. Thereafter,
the Employer and the Union filed briefs.
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. The rulings are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein. The
parties stipulated that the Employer, which operates
an acute care, nonprofit hospital in Hartford, Con-
necticut, and employs approximately 2,200 people,
has a gross annual income in excess of $1 million per
year, and during the past year has purchased sup-
plies, goods, and materials directly from outside the
State of Connecticut valued in excess of $50,000.
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 certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
On October 15, 1974,' the Employer filed three
RM petitions covering employees in the laundry,
housekeeping, and dietary departments? These peti-
i Except as otherwise noted , all dates herein are in 1974.
2 The three petitions were consolidated by the Board on November 11,
and hearings were held in Hartford , Connecticut, on November 20, 21, and
22 and December 3, 4, 5, and 12.
tions were filed by the Employer in response to three
similar petitions filed previously by the Union with
the Connecticut State Board of Labor Relations
(SBLR). For background purposes, a chronological
review of the events preceding the filing of the in-
stant RM petitions follows.
On June 17, the Union demanded recognition as
bargaining representative of the employees in the
laundry, housekeeping, and dietary departments of
the Employer. On the same day, the Union filed
three petitions with the SBLR seeking certification as
bargaining representative of these employees. On
July 19, at a conference held by an agent of the
SBLR, the petitions were consolidated and a consent
election was agreed to for one bargaining unit en-
compassing the three departments.' The election date
agreed to was September 11.
The 1974 nonprofit hospital amendments to the
National Labor Relations Act 4 were signed into law
by the President on July 26, and became effective on
August 25.
On September 4, the Employer filed a timely mo-
tion to dismiss the proceedings before the SBLR for
lack of jurisdiction. The election scheduled for Sep-
tember 11 was stayed pending disposition of the
Employer's motion. On October 10, the SBLR de-
nied the Employer's motion and issued a direction of
election rescheduling the election for November 6.
Thereafter, on October 15, as indicated above, the
Employer filed the RM petitions in this case in an
effort to have the Board assume jurisdiction over the
subject matter of this dispute. Subsequent motions
filed by the Employer to stay the SBLR direction of
election pending the disposition of the Employer's
petitions filed with the Board were denied.
On October 24, the Employer filed a complaint in
the United States District Court for the District of
Connecticut seeking to enjoin the SBLR from going
forward with the election scheduled for November 6.
On November 1, the Honorable M. Joseph Bluemen-
feld issued a preliminary injunction enjoining the
SBLR "from conducting any representational elec-
tion among employees at the Employer while the
Employer's petition is pending before the NLRB." S
The Union's subsequent motion for an expedited
hearing on the appeal to the United States Court of
Appeals for the Second Circuit was denied on No-
vember 14. At the present time, the preliminary in-
junction remains in effect.
The Employer contends that the only appropriate
3 The consent agreement was signed on July 25, the date that the show-
mg-of-interest investigation was conducted.
Public Law 93-360, 93d Cong., S 3203, 88 Stat. 395 (1974).
See St. Francis Hospital v. Connecticut State Board of Labor Relations, 87
LRRM 2941 (D.C. Conn., 1974).
219 NLRB No. 72
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit herein is a broad service and maintenance unit
including all nonprofessional, nonsupervisory, and
nonoffice clerical employees .6 On the other hand, the
Union contends that the Board should either (1) dis-
miss the petitions and remand the proceedings to the
SBLR for a determination by that agency; or (2) rec-
ognize the consent-election agreement signed by the
parties in the State Board proceeding and direct an
election in a unit of employees stipulated to in that
agreement . Alternatively, the Union takes the posi-
tion that the Board should direct an election in a
service and maintenance unit including, among
others, nurses assistants and dietary, housekeeping,
laundry, and maintenance employees; but excluding
all office clerical employees, technical employees (in-
cluding licensed practical nurses), professional em-
ployees, and the other statutory exclusions . It is no-
ted, however, that during the course of the hearing
the Union expressed its willingness to go forward
with an election in any unit found appropriate by the
Board.
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 hospitals. The amendments to the Act be-
came effective on August 25, 1974, at which time the
Employer, an acute care, nonprofit hospital, became
subject to the primary jurisdiction of the National
Labor Relations Board. Based on the foregoing
change in the law, we conclude that the RM petitions
involved herein are properly before the Board.
In enacting the recent health care amendments,
Congress clearly demonstrated its intent to have la-
bor relations in health care institutions regulated un-
der a uniform Federal law. Because of the jurisdic-
tion which we now have over health care institutions,
and in view of the congressional mandate to achieve
stability and uniformity in this industry, we shall not
attempt to avoid our responsibility to process the in-
stant petitions by remanding the proceedings to the
SBLR for resolution, or by directing an election in a
unit stipulated to by the parties in a consent agree-
ment executed prior to the effective date of the 1974
health care amendments?
Essentially, the parties agree that the Board should
direct an election herein in a service and mainte-
nance unit .8 However, they disagree as to the unit
6 The Employer filed the instant RM petitions in an attempt to "track"
the Union's earlier representational claims.
7 We note that the unit stipulated to by the parties before the SBLR
would be inappropriate by our own standards . See Mount Airy Foundation,
d/b/a Mount Airy Psychiatric Center, 217 NLRB No. 137 (1975). Further-
more , we take note of the Employer's contention that it was mindful of the
SBLR's proclivity to find departmental units appropriate when it decided to
stipulate to the unit consisting of laundry, dietary, and housekeeping em-
ployees.
8 They are in disagreement , however, as to the status of certain employees
the Employer refers to as "nursing service" or "service" employees. These
placement of various clerical employees and as to
whether technical employees should be included in
the unit?
Clerical employees: The Employer employs some
291 clerical employees at its facility in Hartford,
Connecticut. Although all of these employees per-
form tasks which are essentially "clerical" in nature,
many of them work alongside employees in the ser-
vice and maintenance unit sought alternatively by
the Union. The remaining clerical employees per-
form primarily "business office" type functions, and
work apart from the service and maintenance em-
ployees working in departments throughout the hos-
pital.
In Mercy Hospitals of Sacramento, Inc., 217 NLRB
No. 131 (1975), the Board recognized that in the
health care field, as in the industrial sphere, a distinc-
tion exists between business office clericals, who per-
form mainly business-type functions, and hospital
clericals whose work is more closely related to the
functions performed by personnel in the service and
maintenance unit. Recognizing that distinction, the
Board stated in Mercy that it would continue to find,
as separately appropriate, those units of office cleri-
cal employees which consist of business office cleri-
cals . After carefully examining the record, we have
concluded, consistent with Mercy, that the following
classifications of employees are business office cleri-
cals and shall therefore be excluded from the unit
herein: the admitting clerks, the addressograph
group leader, the addressograph operators, the typist
secretary, and the senior clerk in the admitting de-
partment; all clerical employees in RN education;
the clerk typist, the typist secretary and the buyer in
the purchasing department; the keypunch operators,
the computer operators and the secretary in data
processing; and the telephone operators in the com-
munications department.
As contrasted with the above business office cleri-
cal employees, the hospital clerical employees are lo-
cated geographically throughout the hospital, within
various departments composed of other service and
maintenance employees. Their work and working
conditions are materially related to unit work. By in-
cluding these hospital clerical employees in the ser-
vices and maintenance unit herein found appropri-
ate, we avoid unnecessary fragmentation of
employees who share common interests and, conse-
quently, we heed the mandate of Congress to avoid
employees , along with all other service and maintenance employees alleged
to be in the unit, shall be included unless their classification is specifically
excluded below.
9 The parties also disagree as to whether certain employees must be classi-
fied as technical employees and, therefore , must be excluded from the unit
in the event that the Board directs an election in the service and mainte-
nance unit , excluding , inter aha, technical employees , as alternatively sought
by the Union.
ST. FRANCIS HOSPITAL 965
proliferation while recognizing the appropriateness
of bargaining units composed of employees who
share a community of interest. Accordingly, we shall
include the hospital clerical employees in the unit
found appropriate herein:
Technical employees: In Barnert Memorial Hospital
Center,10 the Board stated that it would approve sepa-
rate 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 whose
specialized training, skills, education and job require-
ments 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 li-
censed.
After carefully examining the record in light of the
Barnert decision, we have determined that the follow-
ing classifications of employees are technical em-
ployees and shall therefore be excluded from the ser-
vice and maintenance unit: LPN's, senior LPN's,
medical technicians II and III, delivery room techni-
cians, technicians I and II in pulmonary therapy,
therapists II in pulmonary therapy," registered x-ray
technicians, instructors in the radiology department,
registered x-ray technicians-special studies, regis-
tered technicians, CRT technicians, nuclear medicine
technicians, and therapy technicians in radiation
therapy.12 We consider any employees alleged to be
technical employees, but not enumerated above, to
lack the unique competency required in performing
the duties of their specialty, as evidenced by their
special education, training, qualifications, skills,
and/or duties. Accordingly, we shall exclude as tech-
10 Nathan and Miriam Barnert Memorial Hospital Association d/b/a Bar-
nert Memorial Hospital Center, 217 NLRB No. 132 (1975).
11 While the therapists I in pulmonary therapy are trained in a program at
the hospital, the record does not provide us with a sufficient basis to de-
termine whether these employees should be excluded from the unit as tech-
nicals . Therefore, we shall allow them to vote subject to challenge.
12 We shall also allow the dental assistant in ambulatory services to vote
subject to challenge since the record does not adequately enable us to de-
termine whether this employee is a technical employee.
nical employees only those employees enumerated
above.13
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 em-
ployed by the Employer, including hospital cler-
ical employees ; but excluding all technical em-
ployees which include LPN's, senior LPN's,
medical technicians II and III, delivery room
technicians , technicians I and II in pulmonary
therapy , therapists II in pulmonary therapy, reg-
istered x-ray technicians , instructors in the ra-
diology department , registered x-ray techni-
cians-special studies , registered technicians,
CRT technicians, nuclear medicine technicians,
and therapy technicians in radiation therapy; all
office clerical employees which include admit-
ting clerks , the addressograph group leader, the
addressograph operators , the typist secretary,
and the senior clerk in the admitting depart-
ment; all clerical employees in RN education;
the clerk typist, the typist secretary and the buy-
er in the purchasing department ; the keypunch
operators , the computer operators and the secre-
tary in data processing ; the telephone operators
in the communications department ; and profes-
sional employees, guards , and supervisors as de-
fined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
MEMBER PENELLO, dissenting:
For the reasons expressed in the dissenting opinion
in Barnert Memorial Hospital Center, 217 NLRB No.
132 (1975), and in my separate concurring opinion in
Mount Airy Foundation, d/b/a Mount Airy Psychiatric
Center, 217 NLRB No. 137 (1975), I would, in dis-
agreement with my colleagues in the majority, in-
clude all the technical employees herein in the service
and maintenance unit.
13 Newington Children's Hospital, 217 NLRB No. 134 (1975)