Hillhaven Convalescent Center

National Labor Relations Board - Board Decisions

Sep 8, 1995

318 N.L.R.B. 1017 (N.L.R.B. 1995)

1017
318 NLRB No. 105
HILLHAVEN CONVALESCENT CENTER
1 The Petitioner sought a unit of certified nursing assistants, house-
keeping employees, laundry employees, dietary aides, and kitchen
employees. The Employer contended, contrary to the Petitioner, that
the only appropriate unit must include all of its nonprofessional em-
ployees. The unit found appropriate by the Regional Director in-
cludes all full-time and regular part-time certified nursing assistants,
nurses aides, housekeeping employees, laundry employees, janitors,
dietary employees, physical therapy aides, occupational therapy
aides, activity assistants, ward clerks, medical records clerks, central
supply clerks, account payable clerks, weekday receptionists, and
weekend receptionists employed by the Employer at its Delray
Beach, Florida facility; excluding professional employees, technical
employees, guards, and supervisors as defined in the Act.
2 On August 3, 1995, the Employer filed a motion to dismiss the
petition, asserting that the Petitioner is not a bona fide labor organi-
zation and it cannot be certified as a bargaining representative be-
cause it purportedly has not complied with minimal reporting re-
quirements of Chapter 447 of the Florida statutes, the Florida Union
Regulation Law. These facts as alleged by the Employer do not ne-
gate the Petitioner’s status as a labor organization under Sec. 2(5)
of the Act. It is sufficient that the Petitioner is an organization in
which the employees participate and that exists for the purpose of
dealing with the Employer concerning wages, hours, and other terms
and conditions of employment. Alto Plastics Mfg. Corp., 136 NLRB
850 (1962); American Automobile Assn., 242 NLRB 722 fn. 3
(1979). Accordingly, the motion is denied. See Eppinger & Russell
Co., 56 NLRB 1259 (1944); Hill v. State of Florida ex. rel Watson,
325 U.S. 538 (1945).
3 The instant case actually considers the issue from the opposite
perspective: whether technical employees may be excluded from
what is otherwise an all nonprofessional unit in a nursing home. The
legal issue is the same.
Hillhaven Convalescent Center of Delray Beach and
1115 Nursing Home, Hospital & Service Em-
ployees Union-Florida, H.E.R.E, AFL–CIO, Pe-
titioner. Case 12–RC–7659
September 8, l995
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On November 5, l993, the Regional Director for Re-
gion 12 issued a Decision and Direction of Election in
the above-entitled proceeding. He found that the Em-
ployer’s technical employees, consisting of licensed
practical nurses (LPNs) and a physical therapy assist-
ant, may be excluded from the otherwise overall non-
professional unit found appropriate at the Employer’s
nursing home.1 The Regional Director further rejected
the Petitioner’s alternative contention that LPNs are
statutory supervisors, finding that they are employees.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s
decision, contending that the Regional Director did not
properly apply the test set forth in Park Manor Care
Center, 305 NLRB 872 (1991), and incorrectly con-
cluded that technical employees working at the Em-
ployer’s nursing home facility may be excluded from
the otherwise all-nonprofessional employee unit sought
by the Petitioner. On February 17, l994, the Board
granted the Employer’s request for review. The elec-
tion was held as scheduled on December 2 and 3, l993,
and the ballots were impounded pending the Board’s
Decision on Review. The Employer and the Petitioner
filed briefs on review. Thereafter, the Petitioner filed
a motion to remand the case to the Regional Director
to apply ‘‘the new legal standard’’ set forth in NLRB
v. Health Care & Retirement Corp., 114 S.Ct. 1778
(1994), to the issue of whether the Employer’s LPNs
are statutory supervisors. The Employer filed an oppo-
sition to the Petitioner’s motion.2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
We have considered the entire record in this case
with respect to the issues on review and have decided
to affirm the Regional Director’s finding that a unit of
all nonprofessional, nontechnical employees at the Em-
ployer’s nursing home facility is an appropriate unit
for bargaining. We amend, however, the Regional Di-
rector’s Decision and Direction of Election to permit
the physical therapy assistant to vote subject to chal-
lenge.
In Park Manor, supra, the Board ruled that the prop-
er test for determining the appropriateness of bargain-
ing units in nonacute care health care institutions is an
‘‘empirical community of interest test.’’ Under that
test, the Board considers community-of-interest factors,
as well as those factors considered relevant by the
Board in its rulemaking proceedings on Collective-Bar-
gaining Units in the Health Care Industry, Second No-
tice of Proposed Rulemaking, 53 Fed.Reg. 33900
(Sept. 1, 1988), reprinted at 284 NLRB 1528, and
Final Rule, 54 Fed.Reg. 16336 (Apr. 21, 1989), re-
printed at 284 NLRB 1580. The Board further consid-
ers the evidence presented during rulemaking with re-
spect to units in acute care hospitals, and prior cases
involving either the type of unit sought or the type of
health care facility in dispute. In remanding Park
Manor to the Regional Director for application of this
test, the Board observed that, if the employees ex-
cluded by the Regional Director could not themselves
constitute a separate unit, they must perforce be in-
cluded in the broader unit. 305 NLRB at 875 fn. 18.
See also Lifeline Mobile Medics, 308 NLRB 1068
(1992).3
Thus, as explained in Park Manor, 305 NLRB at
876 (citing Sheffield Corp., 134 NLRB 1101 (1961)),
a finding of technical status does not automatically
lead to exclusion from the broader unit, or to finding
appropriate a separate technical unit. Rather, whether
or not technical employees may constitute a separate
appropriate unit depends on their relationship to other
nonprofessional employees.
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 LPNs and CNAs attend the same orientation and in-service train-
ing sessions regarding AIDS, hepatitis B, resident waste, infection
control, evacuation procedures, chair scale, resident transfer, and
decubitus.
5 LPNs and CNAs are hourly paid, have the same benefit package,
share the same lunchrooms and bulletin board, and are subject to the
same personnel policies as unit employees. LPNs and CNAs wear
the same uniforms.
6 The Employer suggests that the Regional Director erred in find-
ing LPNs to be technical employees, arguing that they exercise lim-
ited independent judgment. We find no merit to this argument, and
note that the Board has traditionally found LPNs with skills, func-
tions, and educations similar to those of the Employer’s LPNs to be
technical employees. See Pine Manor Nursing Home, 238 NLRB
1654, 1656 (1978).
7 LPNs, like the 43 CNAs included in the unit, are engaged in di-
rect patient care. Employees in both classifications operate blood
pressure kits, take temperatures, operate scales, use a gait transfer
belt to transfer residents from wheelchairs, help heavy patients from
bed with a hoyer lift, assist with hygiene and the bathroom, and help
to dress patients. Both work out of the nursing station to do patient
charting; take patients to the activities, therapy, and dining rooms;
go to the kitchen to get food for patients; and monitor patients (e.g.,
how much they are eating).
8 LPNs are required to have a high school diploma or GED, attend
1 year of accredited schooling, and be licensed by the State of Flor-
ida. By contrast, CNAs are not required to finish high school or have
a GED, and their training includes 6 weeks to 6 months of training
(depending on the program) and a test to become certified.
9 The Board in rulemaking observed that participation in teams
does not change the employee’s basic role, and concluded that the
use of the team concept in some hospitals does not detract from the
separate appropriateness of RN units. The same reasoning applies
here. See 53 Fed.Reg. 33907, 33913, reprinted at 284 NLRB at
1538, 1546.
As further explained in Park Manor, 305 NLRB at
875–876, the Board observed in the rulemaking that it
is the particular characteristics of technical employees
in acute care hospitals that necessarily set them apart
from nontechnical employees or other nonprofessional
employees, as they are increasingly becoming special-
ized and more highly educated, and, in general, the
gap between technical employees and nontechnical em-
ployees is widening. The Board further observed that
in acute care hospitals, the wage disparity between
technical and nontechnical, nonprofessional employees
is great; technical employees do not usually work in
patient care areas; and there is little cross-training or
interchange between the two groups.
The Board concluded in rulemaking that a rule con-
cerning appropriate units in nursing homes was neither
feasible nor necessary. See 53 Fed.Reg. at 33927–
33928 (1988), reprinted at 284 NLRB at 1567. Simi-
larly, the Board noted in Park Manor, 305 NLRB at
875, that it did not have a sufficient body of empirical
data about nursing homes to make a uniform rule as
to them at that time, and perhaps never would because
they might not be sufficiently uniform to warrant find-
ing the same units appropriate for all. Nevertheless, the
Board in rulemaking did observe that in nursing
homes, there is generally less diversity among tech-
nical employees and service employees, and the staff
as a whole is more integrated than in acute care hos-
pitals, because there is a greater overlap of functions
and greater work contact in the nursing home environ-
ment. The Board noted that, generally, nurses provide
a less intensive, lower level of care to patients in
skilled and extended care facilities than that provided
in acute care hospitals, and thus receive lower wages.
Moreover, observed the Board, in nursing homes there
is, for the most part, little difference between the du-
ties of LPNs and those of nurses aides; both are pri-
marily responsible for providing care to patients. See
53 Fed.Reg. 33927–33928, reprinted at 284 NLRB at
1567.
In the instant case, the record supports the Regional
Director’s conclusion that a separate technical unit
consisting of 12 LPNs and perhaps 1 physical therapy
assistant—the only technical employees employed by
the Employer—would be an appropriate unit under
Park Manor, notwithstanding that some community of
interest factors, such as significant cross-training be-
tween LPNs and certified nursing assistants (CNAs),4
common supervision (LPNs and CNAs), frequent con-
tact with unit employees, and similar working condi-
tions,5 favor the inclusion of technical employees in
the unit.6 Also, as noted by the Regional Director,
LPNs perform some overlapping functions with
CNAs.7 By virtue of their specialized skills and li-
cense,8 however, LPNs are permitted to perform func-
tions that CNAs are not. These functions include ad-
ministering medication, treating decubitus, dealing with
feeding tubes for residents, and charting residents’
medications. In addition, LPNs have keys to the medi-
cal supply (including adrotics), give shots, and use the
glaucometer to check blood sugar.
We note that each patient at the Employer’s home
has a comprehensive care plan that requires teamwork
between LPNs, CNAs, and other employees. Thus,
LPNs and CNAs are assigned to the same patients
each day, and they work from the same flow charts
that document team care given and needed by each
resident on a daily basis. When LPNs and CNAs per-
form their separate functions with respect to patient
care, however, the record evidence does not indicate
that they are necessarily together in the same room, at
the same time, assisting patients.9 Furthermore, there is
no showing that the job-related contact here between
LPNs and CNAs is any greater than the contact be-
tween LPNs and CNAs in acute care hospitals, where
separate technical units (including LPNs) are appro-
priate.
The wide wage gap between the Employer’s LPNs
and CNAs also supports a finding that a separate tech-
nical unit may be appropriate. In this regard, LPNs
1019HILLHAVEN CONVALESCENT CENTER
10 In rulemaking, the Board found a unit of five or fewer employ-
ees to constitute an extraordinary circumstance warranting a case-by-
case determination. 54 Fed.Reg. 16341–16342 (1989), reprinted at
284 NLRB at 1588. Such considerations are also applicable to
nonacute care facilities.
11 The petitioned-for unit consisted primarily of non-LPN technical
employees, such as mental health workers, adolescent care workers,
etc.
12 Because LPNs are excluded because of their technical status, we
find it unnecessary to rule on the Petitioner’s motion to remand the
case to the Regional Director to consider whether LPNs are statutory
supervisors under Health Care & Retirement.
earn $10 per hour, while CNAs earn $5.50 per hour.
Moreover, the 12- or 13-member technical unit, al-
though not large, is a sufficient size to warrant separa-
tion.10
Prerulemaking case precedent with respect to the ap-
propriateness of separate units of technical employees
at nursing homes was not consistent, and thus does not
offer definitive guidance regarding whether technical
employees may be excluded from the petitioned-for
nonprofessional unit in the Employer’s nursing home.
See discussion in Brattleboro Retreat, 310 NLRB 615,
616 (1993), of the Board’s previous applications of the
community of interest and disparity of interest tests in
nursing home settings; both standards were abandoned
by the Board in the course of promulgating its rule re-
specting appropriate bargaining units in acute care hos-
pitals. 53 Fed.Reg. 33905, reprinted at 284 NLRB
1535; Park Manor, 305 NLRB at 875.
We find this case to be distinguishable from Upstate
Home for Children, 309 NLRB 986 (1992), relied on
by the Employer. Unlike the instant case, that case in-
volved, inter alia, the issue of whether a portion of the
technical employees (LPNs) at the employer’s facility
could constitute a separate appropriate unit, not wheth-
er a separate unit of all technical employees would be
appropriate in a nursing home. In Upstate, the Board
affirmed the Regional Director’s dismissal of petitions
for separate units of LPNs (technical employees) and
RNs (professional employees) employed in the em-
ployer’s residential school and care facilities for the
mentally retarded. Unlike here, nurses had significant
contact and common supervision with other profes-
sional and technical employees not included in the pe-
titioned-for units (they also had significant contact,
common supervision, and functional integration with
other nonprofessional employees); and nonnursing staff
in both classes and residences (e.g., classroom aides,
teaching assistants, child development aides) also ad-
ministered certain treatments prescribed by doctors,
and were certified to, and did, dispense medications.
Although this case has some similarities to
Brattleboro Retreat, supra, we find it to be distinguish-
able. In that case, the Board found the petitioned-for
unit of technical employees to be inappropriate at the
employer’s combination psychiatric hospital/nursing
home.11 There, similar to here, all nonprofessional em-
ployees shared common personnel policies, benefits,
and overall working conditions; the employer’s oper-
ations were functionally integrated; the technical em-
ployees had important and frequent work-related con-
tact with nontechnical, nonprofessional employees;
some technical employees shared common supervision
with some nontechnical, nonprofessional employees;
some employees in both groups performed common
functions; and the technical employees were involved
in direct patient care. In Brattleboro, however, unlike
here, the wage differentials between technical employ-
ees and nontechnical employees were fairly small, and
technical employees shared wage classifications with
many nontechnical, nonprofessional employees. Also,
many of the technical employees were required to have
only a high school education and did not acquire their
skills through technical schools or colleges, and many
nontechnical employees were required to have high
school educations. In addition, the incidence of trans-
fers between technical and nontechnical classifications
in Brattleboro suggested a lack of strong distinction
between technical employees and other nonprofes-
sionals; there is no evidence of any such transfers here.
In sum, we conclude that, applying the Park Manor
test (including post-Park Manor case precedent) to the
particular factual circumstances of this case, the Re-
gional Director correctly found that the Employer’s
technical employees may be excluded from the bar-
gaining unit.12
With respect to the Regional Director’s finding that
the physical therapy assistant is a technical employee,
we find the record is too sparse as to his duties and
responsibilities to make a judgment. Accordingly, we
amend the Decision and Direction of Election to per-
mit the physical therapy assistant to vote under chal-
lenge.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed with respect to the exclusion of
the LPNs. The Decision and Direction of Election is
amended, however, to permit the physical therapy as-
sistant to vote under challenge. This proceeding is re-
manded to the Regional Director for further appro-
priate action, including the opening and counting of
the ballots cast in the election, consistent with this De-
cision on Review.