Sweetwater Hospital Association

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 803 (N.L.R.B. 1975)

SWEETWATER HOSPITAL ASSOCIATION 803
Sweetwater Hospital Association and Tennessee Li-
censed Practical Nurses Association , Sweetwater
Unit,' Petitioner . Case 10-RC-10221
July 30, 1975
DECISION AND DIRECTION OF ELECTION
Pursuant to a petition duly filed under Section 9(c)
of the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer C. Douglas
Marshall of the National Labor Relations Board.
Following the close of the hearing, the Regional Di-
rector for Region 10 transferred this case to the
Board for decision. The Employer filed a brief, ami-
cus curiae was filed by the National Federation of
Licensed Practical Nurses.
The Board, having duly considered the Hearing
Officer's rulings made at the hearing, finds that they
are free from prejudicial error. They are hereby af-
firmed. Upon the entire record in this case,' includ-
ing the parties' briefs, the Board finds:
1. The Employer is a nonprofit Tennessee corpo-
ration, operating a general hospital in Sweetwater,
Tennessee. The parties have stipulated, and we find,
that the Employer's gross annual revenue exceeds
$500,000, that it has purchased goods which have ori-
ginated outside the State of Tennessee having a value
exceeding $50,000, and that the Employer is engaged
in commerce within the meaning of the Act.
2. The Employer contends that the Petitioner is
not a labor organization within the meaning of Sec-
tion 2(5) of the Act. It specifically alleges that Peti-
tioner is affiliated with and functions under the by-
laws of the Athens Area, Tennessee Licensed
Practical Nurses Association (TLPNA), which does
not list collective bargaining as one of its functions.
At the hearing, Petitioner stated that the State Asso-
ciation (TLPNA) was preparing to amend its bylaws
in March 1975 to provide for collective bargaining.
The Employer argues that Petitioner has not collec-
tively bargained; that Athens Area, TLPNA, has not
collectively bargained; and that the Locals' bylaws
will not be amended to include the collective-bar-
gaining function unless and until the State Associa-
tion amends its functions. Although Petitioner has
i The names of the parties appear as amended at the hearing.
2 On January 16, 1974, a stipulation was entered into by the Employer
and the Petitioner providing that the answers to the questions relating to
Athens Area, Tennessee Licensed Practical Nurses Association , and the
answers to the questions relating to the bylaws of the Athens Area, Tennes-
see Licensed Practical Nurses Association , given by Doris Williams at the
hearing , would have been the same had the questions and answers been
directed to the activities and organization of the Petitioner herein . Although
the stipulation is signed only by Petitioner , the Employer has filed no objec-
tion to the stipulation . Accordingly , we assume that the stipulation has been
entered into by both parties and is herein made part of the record.
not yet collectively bargained and, apparently, lacks
bylaws of its own, it may still be a labor organization
within the broad meaning given that phrase in Sec-
tion 2(5). The fact that Petitioner is functioning in-
formally or under the bylaws of Athens Area,
TLPNA, is not controlling.' During the hearing here-
in the president of the Athens Area, TLPNA, testi-
fied that the organization is concerned with the eco-
nomic and general welfare program which exists for
the purpose of collective bargaining for Tennessee
licensed practical nurses. The National Federation,
with which Petitioner is affiliated, has already
amended its bylaws to provide that one of its objec-
tives and functions is "to represent for purposes of
collective bargaining all LPN/LVN's employed by
proprietary, nonprofit and public institutions of
health care." Accordingly, we find Petitioner is a la-
bor organization within the meaning of Section 2(5)
of the Act.4
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.
4. Petitioner seeks to represent a unit of licensed
practical nurses employed by the Employer at its fa-
cility in Sweetwater, Tennessee, excluding all other
employees, guards, and supervisors. The Employer
argues that the only appropriate unit is one which
includes all of the hospital's nonprofessional work
force, including LPN's, nurses aides, ward clerks,
housekeeping personnel, dietary personnel, orderlies,
maintenance personnel, and laboratory and x-ray
personnel.
In Newington Children's Hospital, 217 NLRB No.
134 (1975), and Nathan and Miriam Barnert Memori-
al Hospital Association d/b/a Barnert Memorial Hos-
pital Center, 217 NLRB No. 132 (1975), the Board
found that LPN's, because of the requirements that
they receive special schooling, pass qualification ex-
aminations , and be licensed by the State before they
can perform as LPN's, are appropriately classified as
technical employees.
The Board also concluded in Barnert and Newing-
ton that technical employees share a community of
interest separate and distinct from that shared with
service and maintenance employees, and thus may
constitute a separate appropriate unit. We noted, in-
ter alia, that technical employees are generally more
highly trained in the medical technical procedure,
either through completion of higher level formal edu-
cation programs or special technical training pro-
grams, or both; are higher skilled and often higher
3 Stewart Die Casting Division (Bridgeport of Stewart Warner Corporation),
123 NLRB 447 (1959)
Butler Manufacturing Company, 167 NLRB 308 (1967); Roytype, Division
of Litton Business Systems, Inc, 199 NLRB 354 (1972)
219 NLRB No. 142
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid ; often work in separate laboratories or areas;
and perform work requiring a higher degree of re-
sponsibility and initiative than do the service and
maintenance employees.
The LPN's, who receive approximately 18-percent
greater pay than the nurses assistants ,5 administer
medicine in accordance with doctors ' orders and in-
structions , change dressings , give baths , and take
blood pressures and temperatures . In Tennessee,
prospective LPN's, after completion of high school,
must attend a 12-month program in a school of prac-
tical nursing . At the end of this class work program,
they are eligible to take a state board examination. If
successful in passing such examination , they are li-
censed by the State. All of the Employer's LPN's
have successfully completed this program and have
been licensed by the State.
Member Kennedy , in dissenting, accurately notes
that the Board will generally find a bargaining unit
limited to licensed practical nurses inappropriate and
that the Board 's usual practice is to include LPN's in
a unit composed of technical employees. In the in-
stant case , it is true, there is , besides the LPN's only
one other employee who may be technical. Nonethe-
less, we see no valid reason for altering our practice
of finding a technical unit appropriate merely be-
cause in this case the majority of employees in that
unit are licensed practical nurses rather than some
other category of technical employee. Nor do we be-
lieve that it follows, as Member Penello , our other
dissenting colleague , suggests , that we will , in view of
our decision to find technical units appropriate, be
forced to find each classification of technicals, re-
gardless of "how small or isolated," likewise to be
appropriate . In finding a technical unit appropriate
we will include all those who qualify as technicals
and not limit such a unit to any one classification.
That is the meaning of our decision herein, not as
erroneously charged by the dissenters, that we will
find a lesser unit appropriate under the guise of a
technical one.
On the basis of the foregoing, we find that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All technical6 employees , including licensed
practical nurses, employed by the Employer at
s Nurses assistants are nurses aides who, because of their significant expe-
rience in bedside care and many years of employment at the hospital, re-
ceive more pay and are given the title of nurses assistant.
6 The record herein indicates that there is an employee who performs
laboratory procedures , takes x-rays , and is licensed . However , the record is
unclear or incomplete in regard to the extent of the training, education, type
of license she holds, and her exact duties . Thus we are unable to determine
whether she should be included in the unit as a technical employee . Accord-
ingly, this employee may vote subject to challenge.
its facility in Sweetwater , Tennessee , excluding
all other employees , professional employees,
managerial employees , office clerical employees,
guards, and supervisors as defined in the Act.
[Direction of Election omitted from publication.] 7
MEMBER KENNEDY, dissenting:
Although the majority describes the unit found ap-
propriate as a technical unit , it must be recognized
that the unit in which the election is directed consists
of some 26 LPN's plus one part-time laboratory em-
ployee s Realistically, the unit in which the election is
being directed is an LPN unit. In St. Catherine's Hos-
pital of Dominican Sisters of Kenosha, Wisconsin, Inc.,
217 NLRB No. 133 (1975), a Board majority said
"that a unit consisting solely of licensed practical
nurses is inappropriate." In my view, the addition of
a single part-time laboratory employee does not
make the LPN unit appropriate. In my view, a pro-
duction and maintenance unit does not become a
laboratory unit by adding a single laboratory em-
ployee. Similarly, I do not believe that an LPN unit
changes its character by the addition of a single part-
time laboratory employee .9 I am unwilling to join the
majority in their mechanistic approach that an inap-
propriate unit becomes appropriate because of the
addition of this part-time employee. Accordingly, I
can only view this decision as a reversal by the ma-
jority as to its previous pronouncements with respect
r [Excelsior footnote omitted from publication.]
8 Petitioner sought a unit consisting of the 14 full-time LPN's and 12
part-time LPN's.
9 Although in Barnert Memorial Hospital, 217 NLRB No. 132 ( 1975), the
majority made a perfunctory finding that "LPN's meet the Board's criteria
for technical employees ," it is interesting to note that this constituted a
complete reversal of the Board 's previous view including two members of
the majority. In numerous cases involving LPN's since the assertion of,luris-
diction over nursing homes in University Nursing Home, Inc., 168 NLRB 263
(1%7), the Board did not find LPN 's to be technical employees or base its
unit placement of LPN 's upon such rationale . Although in Madeira Nursing
Center, Inc., 203 NLRB 323 (1973), the Board overruled prior decisions
requiring inclusion of the LPN 's in the overall unit, it did not predicate its
rationale upon a finding that LPN 's were technical employees. In fact, in a
decision issued on the same day , Leisure Hills Health Centers, Inc., 203
NLRB 326 (1973), the Board included the LPN's in the overall unit noting
that "As the record shows they have duties very similar to other employees,
such as aides , who are included in the unit , it is obvious that they have
sufficient interest in common with other nursing home employees sought to
be represented herein."
The LPN's do not meet the Board 's standard criteria for technical em-
ployees as being those "who do not meet the strict requirements of the term
'professional employees' as defined in the Act but whose work is of a techni-
cal nature involving the use of independent judgment and specialized train-
ing usually acquired in colleges or technical schools or through special
courses." Litton Industries of Maryland, Incorporate4 125 NLRB 722, 724
(1959).
As a general rule, LPN's are required to only have the equivalent of a
high school education . They are required to have only I year of formal
nursing education , divided between academic instruction and clinical expe-
nence . They usually work under the direction of an RN or doctor and
provide care based upon the professional employee's evaluation of the
patient's needs. As a result of their limited training, they would not ordinari-
ly perform certain medical procedures or administer drugs, and in many
States are prohibited by law from doing so.
SWEETWATER HOSPITAL ASSOCIATION 805
to the appropriateness of a separate unit for the
LPN's.10
As set forth in my dissents in previous cases," I
believe it is clear from legislative history of the health
care amendments that Congress did not want the
Board to establish a separate unit for LPN's. I would
not find that a unit limited to LPN's and a part-time
laboratory and x-ray employee to constitute an ap-
propriate unit for separate representation.
MEMBER PENELLO , dissenting:
For the reasons set forth in the dissenting opinion
in Barnert Memorial Hospital Center," and in my sep-
arate concurring opinion in Mount Airy Foundation,
d/b/a Mount Airy Psychiatric Center, 13 I disagree
with my colleagues' finding that a unit of all techni-
cal employees employed by the Employer at its
Sweetwater, Tennessee, facility is appropriate.
In making their unit determination , my colleagues
first note their view that "technical" employees, in-
cluding LPN's, may constitute a separate appropriate
unit. Then, they conclude that since LPN's constitute
10 In the St. Catherine's Hospital of Dominican Sisters case, supra, the ma-
jority concluded that the "legislative history weighs against our finding an
appropriate separate unit of licensed practical nurses" and "that a unit con-
sisting solely of licensed practical nurses is inappropriate ." The factual situ-
ation herein is not dissimilar to that presented in Mount Airy Foundation
d/b/a Mount Airy Psychiatric Center, 217 NLRB No. 136 ( 1975). In addition
to the LPN 's in Mount Airy there were two x-ray and laboratory technicians.
The unit placement made by the Board was to include the LPN's and the
two technicians in the hospitalwide unit of nonprofessional employees.
While in Otis Hospital, 219 NLRB 164 (1975), the Board did find appro-
priate a separate unit of LPN's, the decision stressed that the basis for doing
so was the stipulation of the parties agreeing to this unit.
it Otis Hospital, Inc„ 219 NLRB 164; St. Catherine's Hospital, supra,
Barnert Memorial, supra; and Newington Children's Hospital, 217 NLRB No.
114 (1975).
12 217 NLRB No. 132 (1975).
i3 217 NLRB No. 136 (1975).
the only technical employees herein14 they may prop-
erly direct an election in a technical unit limited to
LPN's. If one accepts the majority view, which I have
repeatedly rejected, that all technical employees may
constitute an appropriate unit, then the result
reached by the majority herein logically follows.
However, it cannot be denied that the technical unit
found appropriate herein is virtually identical to the
LPN unit rejected by the majority in St. Catherine's
Hospital of Dominican Sisters of Kenosha, Wisconsin,
Inc.'5 In St. Catherine's, the majority spoke in terms
of the congressional mandate to avoid undue prolif-
eration of bargaining units when it refused to find a
separate unit of LPN's to be appropriate. In the in-
stant case, the majority, by granting a technical unit
limited to LPN's, is acting contrary to that same con-
gressional mandate.
The decision in this case is just one further exam-
ple of the undue proliferation which will result if the
majority continues to grant separate units for techni-
cal employees. The instant case happens to involve
LPN's. The next case, however, may involve only x-
ray technicians, and future cases may involve only
orthopedic technicians or infant care technicians or
psychiatric technicians or operating room techni-
cians, et cetera . No matter how small or isolated the
classification of technical employees might be, the
majority, in order to be consistent with this decision,
will have to find each one to be an appropriate unit.
The effect of such an approach on undue prolifera-
tion of bargaining units in the health care industry
will be substantial.
Accordingly, I would dismiss the petition.
14 In addition to the LPN 's, one laboratory employee is being allowed to
vote subject to challenge.
's 217 NLRB No. 133 (1975).