Park Manor Care Center

National Labor Relations Board - Board Decisions

Dec 18, 1991

305 N.L.R.B. 872 (N.L.R.B. 1991)

872
305 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer’s name appears as amended at the hearing.
2 On June 12, 1990, the Regional Director issued a Decision and
Direction of Election in which he acceded to the Petitioner’s request
to exclude the Employer’s licensed practical nurses (LPNs) from
what was otherwise an all-inclusive service and maintenance unit,
excluding office clerical employees, on grounds the LPNs were
technicals. Thereafter, in accord with Sec. 102.67 of the Board’s
Rules and Regulations, the Employer filed a timely request for re-
view, which the Board granted on July 10, 1990. No briefs on re-
view have been submitted.
3 At the time of the hearing and the Regional Director’s decision,
the Employer was seeking a license to operate 44 of its 100 beds
as a skilled care facility. On May 16, 1990, the Iowa State Health
Facilities Council granted the Employer a 1-year extension from that
date to accomplish the conversion. According to the Employer, con-
version to skilled care will lead to an increased role for RNs, with
LPNs dealing with a smaller total number of beds.
4 There have been two prior bargaining units at this facility. In
1976, in Case 18–RC–11024, a union was certified for all full- and
regular part-time employees of the Employer (then known as Villa
Park Care Center, Inc.), excluding cooks, RNs, LPNs, office clerical
employees, guards, and supervisors. The union disclaimed interest in
approximately 1987. In 1978, in Case 18–RC–12003, a union was
certified for a unit of all technicals, including LPNs; that certifi-
cation was revoked on November 22, 1983, as a result of the union’s
disclaimer following the filing of a decertification petition.
5 The unit found appropriate by the Regional Director was: All
full-time and regular part-time kitchen employees, including dietary
aides and med aides, CNAs and CMAs, laundry employees, house-
keepers, activities assistants, and maintenance employees employed
by the Employer at its Fort Dodge, Iowa nursing home facility; ex-
cluding technical employees, licensed practical nurses, housekeeping
supervisors, administrative assistants, activities director, director of
social services, registered nurses, office clerical employees, guards
and supervisors as defined in the Act.
6 At the hearing, the Petitioner contended additionally that the
LPNs were statutory supervisors. The Regional Director found other-
wise, and the Petitioner did not request review.
7 This term is not defined in the record.
Park Manor Care Center, Inc.1 and Local 1199,
Drug, Hospital and Health Care Employees
Union, AFL–CIO, Petitioner Local 431. Case
18–RC–14810
December 18, 1991
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
The issue presented in this case2 is the standard by
which the Board will determine appropriate bargaining
units in nonacute health care facilities. The Board re-
cently adopted a rule for determining appropriate bar-
gaining units for acute care hospitals. 29 CFR
§ 103.30. That rule was approved by the Supreme
Court in American Hospital Assn. v. NLRB, 111 S.Ct.
1539 (1991). The Board, however, explicitly excluded
from the definition of an acute care hospital ‘‘facilities
that are primarily nursing homes.’’ 29 CFR
§ 103.30(f)(2). For those facilities as well as all other
nonacute health care facilities, as defined in Section
2(14) of the National Labor Relations Act, the Board
stated that it would determine appropriate units ‘‘by
adjudication.’’ 29 CFR § 103.30(g). As the Employer
here operates a nursing home, an excluded facility, at
which the Petitioner seeks to represent a service and
maintenance unit excluding technicals, the Board must
now decide whether, and by what standard, the peti-
tioned-for unit is appropriate.
On review, after carefully considering the issue pre-
sented and the entire record, the Board has decided to
remand the case to the Regional Director for further
consideration in light of the principles set out below,
and to permit the parties to present further evidence
and arguments with respect thereto.
I. THE FACTS
The Employer operates an intermediate care3 nurs-
ing home in Fort Dodge, Iowa. Its employees are cur-
rently unrepresented.4 The Petitioner seeks a service
and maintenance unit, excluding office clericals and
technicals; the Employer’s sole technical employees
are four licensed practical nurses (LPNs). The parties
agree on the scope of the unit,5 except that the Em-
ployer would include the LPNs, and the Petitioner
would exclude them.6
The Employer has a staff of 67, including super-
visors and employees. It is run by an administrator, as-
sisted by several department heads. The department of
nursing is headed by the director of nursing, and under
her are 5 registered nurses (RNs, excluded as profes-
sionals), the 4 LPNs in issue, 5 certified medication
aides (CMAs), and 23 certified nursing aides (CNAs).
The Employer operates three shifts: 6 a.m. to 2 p.m.,
2 to 10 p.m., and 10 p.m. to 6 a.m. The director of
nursing is generally on duty from 8:30 a.m. to 5 or 6
p.m. Although there are several references in the
record to ‘‘shift (or charge) nurses,’’ it is clear that ei-
ther the director or the assistant director of nursing, an
RN, is always on call, and none of the individuals in
other classifications, including charge nurse, is alleged
to possess supervisory responsibilities.
All employees in the nursing department are in-
volved in direct patient care, with the director of nurs-
ing making all assignments. The Employer has no for-
mal job descriptions for RNs, LPNs, CMAs, or CNAs.
Although, as indicated, the RNs are professionals
whose status and exclusion from the unit are not in
dispute, the record indicates that their duties are simi-
lar to those of the other department employees, except
that only RNs are permitted to make periodic ‘‘re-
straint assessments,’’7 only RNs administer certain
drugs and initiate intravenous therapy, and only RNs
can orient new aides.
The LPNs at Park Manor are primarily responsible
for passing out medications, providing treatments, and
taking routine care of patients. They are not permitted
873PARK MANOR CARE CENTER
8 There is some indication in the record that LPNs make assign-
ments to CMAs and CNAs, but these appear to be largely routine
dividing of patients among the aides, who then perform duties as
previously assigned by the director of nursing.
9 In fact, all employees fill out generic ‘‘write up’’ forms, report-
ing information on incidents to the director of nursing, who decides,
with the administrator, whether disciplinary action is needed.
10 A.W. Schlesinger, 260 NLRB 452 (1982); Highview, Inc., 223
NLRB 646 (1976); Pine Manor Nursing Home, 238 NLRB 1654
(1978); Madeira Nursing Center, 203 NLRB 323 (1973). The Re-
gional Director’s reasoning was: ‘‘The Board has held that licensed
practical nurses are technical employees who, because of their dis-
tinct functions, training, skills and education, do not share a suffi-
cient community of interest with other nontechnical employees to
warrant their inclusion in the same bargaining unit.’’ The Regional
Director did not discuss these individual factors as they related to
the facts of this case.
11 In Pine Manor, the Board gave the LPNs a self-determination
election, to determine whether they wished to return to the service
and maintenance unit (as urged by the intervenor) where they once
were, or constitute a separate unit of all technicals (as advocated by
the petitioner.) In Madeira, the Board discussed historical representa-
tion patterns for LPNs, especially in Ohio, and noted its experience
that ‘‘the duties and responsibilities given to LPN’s vary consider-
ably from one nursing home to another.’’ Though stating that LPNs
could be included in overall units in many situations, the Board
found that they could also be excluded, based on their ‘‘substantial
community of interest among themselves which is separate and dis-
tinct from the broader interests they share with the other nursing
home employees.’’ 238 NLRB at 325.
12 Among the cases cited by the Employer are Presbyterian/St.
Luke’s Medical Center v. NLRB, 653 F.2d 450, 455 (10th Cir. 1981),
and St. Anthony Hospital v. NLRB, 884 F.2d 518 (10th Cir. 1989).
In its recent decision upholding the Board’s Rule for bargaining
units in acute care hospitals, however, the Supreme Court stated the
admonition was ‘‘best understood as [merely] a form of notice to the
Board that if it did not give appropriate consideration to the problem
of proliferation in this industry, Congress might respond with a leg-
islative remedy.’’ American Hospital Assn. v. NLRB, 111 S.Ct. at
1545. In any event, the Court held that the Board’s Rule, finding
appropriate 8 units in acute care hospitals, did not contravene the ad-
monition; application of the disparity test was not required. Id. at
1544–1546.
to initiate or control intravenous therapy, though they
may monitor it. They do not possess supervisory au-
thority.8 Like other employees in the department, they
report to the director of nursing, are hourly paid with
extra compensation for overtime, and are required to
wear a white uniform for which they are reimbursed
by the Employer at the rate of 8 cents an hour. They
share the same holidays, sick leave, and additional
benefits, such as health insurance, as other employees,
and utilize the same promotion and grievance proce-
dures. LPNs have considerable patient contact, and
work most closely with CNAs. All employees at the
facility, including RNs, LPNs, CMAs, and CNAs, are
considered ‘‘mandatory reporters’’ under the state sys-
tem, in that they are required to report to their super-
visor and the State any instances of patient abuse or
neglect. The record contains no evidence as to the edu-
cational or training requirements for the LPNs.
The other employees in the nursing department are
CMAs and CNAs; there are no uncertified aides. As
indicated, all employees in the department have sub-
stantial patient contact. The CMAs and CNAs possess
similar training, skills, and job requirements, and are
‘‘on a very similar wage and payment scale,’’ to
LPNs. CNAs receive 20 hours of orientation, plus 75
hours in a classroom, to obtain certification from the
State of Iowa. To obtain the higher level CMA certifi-
cate, CNAs must take an additional 40-hour course
through the community college system. CNAs bathe,
clothe, feed, and assist residents in their daily living
activities; like LPNs, certified CMAs can also admin-
ister medications, assign employees to patients from
lists, ‘‘chart’’ the course of patients’ treatment, and
serve as charge nurse.
Supervisory meetings are attended only by depart-
ment heads, but approximately once a month the Em-
ployer also holds a professional meeting, attended by
RNs, LPNs, and CMAs, at which such subjects as
medication administration are discussed. All employees
do self-evaluations on Employer-provided forms, but
either RNs, LPNs, or CMAs receive another part of
each employee’s form for evaluation purposes. LPNs
may be evaluated by RNs or CMAs, and vice versa.
Neither RNs nor LPNs discipline other employees, but
merely gather and report data when appropriate.9 LPNs
do not keep time records for employees; rather, each
employee has her own timecard.
II. THE REGIONAL DIRECTOR’S DECISION
Finding that the Employer’s LPNs are technical em-
ployees, the Regional Director excluded them from the
service and maintenance unit found appropriate, in
conformity with the Petitioner’s request and with sev-
eral cases cited by him.10 For the most part, the cited
cases apply the community-of-interests standard, and
hold that technical employees enjoy a separate commu-
nity of interests.11
The Employer in its request for review argues that,
rather than community of interests, the proper test is
disparity of interests, which has been characterized by
several courts of appeals as being most consistent with
the ‘‘Congressional directive to ‘prevent undue pro-
liferation of bargaining units in the health care
field.’’’12 The disparity-of-interests test requires sharp-
er than usual differences in wages, hours, and working
conditions before the requested unit will be granted.
The Employer’s position is that such sharper than
usual differences do not exist here, especially between
the LPNs and the larger group of CNAs and CMAs
who are concededly part of the service and mainte-
nance unit. The Employer also points out that there are
only four LPNs in the nursing home, and no other
technicals.
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. DISCUSSION
For the reasons set out below, we are remanding the
case for further consideration that takes account of (1)
what was learned about nursing homes, LPNs, and
technicals generally in the rulemaking proceeding that
led to the Board’s Rule governing units in acute care
hospitals, and (2) Board cases involving nursing home
units issued prior to the rulemaking. As also explained,
we believe that the development of a fuller factual
record may be necessary to determining whether the
LPNs in this case have a community of interests that
warrants keeping them separate from a unit that in-
cludes the CNAs and CMAs.
A. The Rulemaking Proceeding
In its original form, the Board’s Rule for bargaining
units in acute care hospitals also encompassed nursing
homes. 52 Fed.Reg. 25142, 284 NLRB 1516 (1987).
The earliest proposed rule contained the same units for
small hospitals and nursing homes as for large hos-
pitals, except that instead of providing for separate
units of MDs and RNs, it provided for an all-profes-
sional unit. The Board decided tentatively to eliminate
the narrower units in favor of broader ones (in small
hospitals and nursing homes) because it believed that
in smaller facilities there would be less division of
labor and specialization and thus more functional inte-
gration of employees’ services than normally is the
case in large hospitals. The Board also noted that it ex-
pected that there were far fewer professionals other
than physicians and nurses in the smaller facilities (es-
pecially in nursing homes), and therefore that separate
units of ‘‘other professionals’’ were less likely to be
appropriate. 53 Fed.Reg. 25148, 284 NLRB at 1524.
Subsequent to hearings conducted at various loca-
tions throughout the United States, however, the Board
concluded from the evidence presented that a rule con-
cerning appropriate units in nursing homes was neither
feasible nor necessary. Thus, the evidence submitted at
the hearings revealed that to a larger extent than acute
care hospitals, nursing homes varied both in size and
type of service rendered. The Board noted that, gen-
erally speaking, there are three basic types of nursing
home facilities: skilled nursing, intermediate care, and
residential care. Skilled nursing homes provide 24-hour
inpatient nursing care to chronically ill or stable con-
valescent patients, are state licensed, and are eligible
for both Medicare and Medicaid. Intermediate care fa-
cilities also provide 24-hour inpatient care, but care is
less intensive and more oriented to daily living. These
homes are also state licensed or certified but are eligi-
ble only for Medicaid. Residential care facilities meet
only social needs, not medical, and are not licensed.
The facilities range in size from 10–500 patients. One-
third have a capacity for fewer than 50 residents, one-
third for 50–99, and one-third for over 100. See 53
Fed.Reg. 33927–33928, 284 NLRB at 1567.
The evidence also indicated that, unlike hospitals,
nursing homes are populated primarily by the elderly
and provide long-term care rather than medical treat-
ment of a specific illness. Nursing home staff members
are concerned with their residents’ physical well-being
as well as their social and psychological needs. Thus,
there is less diversity in nursing homes among profes-
sional, technical, and service employees, and the staff
is more functionally integrated. Generally, nurses pro-
vide 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 salaries.
The evidence further indicated that there is for the
most part little difference between the duties of LPNs
and those of nurses aides. Both are primarily respon-
sible for providing nursing care to patients. The Board
observed, ‘‘there appears to be a greater overlap of
functions as well as greater work contact between the
various nursing home non-professionals.’’ 53 Fed.Reg.
33928, 284 NLRB at 1567.
In commenting on the differences between nursing
homes, the Board noted that they have resulted in
greater differences in organization, regulations, and
staffing patterns. For example, duties of staff may vary
with the size of the institution. Also,
[i]n a small, 10-resident facility, the staff will
have overlapping responsibilities, and thus an
overall unit would be appropriate. In a large,
skilled care facility with specialized units (see
infra), more than one unit might be appropriate.
In an intermediate care facility which also cares
for the mentally disabled as a result of trauma,
there may be a separate group of employees, such
as psychiatrists, who have distinct supervision and
little contact with other professionals.
53 Fed.Reg. 33928, 284 NLRB at 1567–1568.
The Board also received evidence that regulations
with respect to staffing patterns and employee quali-
fications vary widely from State to State. For example,
Connecticut requires more skilled nursing care than
Iowa, where the instant case arises, and in some States,
skilled nursing facilities must have 24-hour RN cov-
erage. A majority of States have no specific training
requirements. In Massachusetts, for example, nursing
homes must be staffed by LPNs or RNs, and they are
required to provide substantial direct patient care. In
contrast, in Indiana, with lesser staffing requirements,
nurses aides provide direct patient care, and LPNs per-
form RN-type duties such as distributing medication
and assisting doctors.
Moreover, the nursing home industry is also in a pe-
riod of rapid transition. Growth is now rapid owing to
the increased population of older persons, as family re-
875PARK MANOR CARE CENTER
13 Such factors included:
uniqueness of function; training, education and licensing; wages,
hours and working conditions; supervision; employee interaction;
and factors relating to collective bargaining, such as bargaining
history, matters of special concern, etc. Location and scope of
job market may be relevant: i.e., whether the classification is
part of a job market external to the facility or even to health
care, or rather shares a job market with others in the facility or,
perhaps, in the areawide health care community . . . .
53 Fed.Reg. 33905–33906, 284 NLRB at 1536.
14 See, e.g., St. Vincent Hospital, 285 NLRB 365, 367–368 (1987).
15 53 Fed.Reg. 33905, 284 NLRB 1535.
16 For those most comfortable with verbal formulas, perhaps this
might be referred to as the ‘‘pragmatic or empirical community of
interests’’ approach. Compare the ‘‘expanded community of inter-
ests’’ test concerning the inclusion of relatives of owners as set forth
in Futuramik Industries, 279 NLRB 185 (1986), and approved by
the Supreme Court in NLRB v. Action Automotive, 469 U.S. 490
(1985).
17 St. Francis Hospital, 271 NLRB 948, 953 fn. 39 (1984), an ap-
proach cited with apparent approval in the Supreme Court’s opinion.
American Hospital Assn. v. NLRB, 111 S.Ct. at 1546.
18 Though this issue arises in this case as the requested exclusion
of technical employees from a service and maintenance unit, the pro-
spective appropriateness of technical employees as a separate unit is
obviously the controlling consideration. If the technical employees
could not themselves constitute a separate appropriate unit, perforce
they must be included in the service and maintenance unit here
sought.
sponsibility for older parents lessens. In addition, many
longterm facilities will increasingly offer nontraditional
specialized services, i.e., head and spinal cord injury
units, Alzheimers, respiratory therapy, hospice care,
AIDS, and home health care. These services require
different staffing needs. The staff in a specialized serv-
ice area such as a coma unit may also be far more in-
tegrated than nurses and aides who work in the nursing
area.
Finally, the Board noted that there has been no pro-
longed litigation and no party has expressed any prob-
lem in the area. The Board thus concluded that it was
best to continue a case-by-case approach with respect
to nursing homes.
Having decided to make unit determinations in nurs-
ing homes by adjudication, the Board now faces the
question of the proper method of analysis in reaching
such determinations. The Board has traditionally deter-
mined appropriate units based on the community-of-in-
terests standard and, for a short period, a disparity-of-
interests standard. Under those standards, the Board
evaluates various factors, including similarity of wages
and hours, extent of common supervision, frequency of
contact with other employees, and area practice and
patterns of bargaining. However, such conceptual for-
mulations as ‘‘community of interests’’ and ‘‘disparity
of interests’’ were abandoned by the Board in the
course of promulgating its rule respecting appropriate
bargaining units in acute care hospitals, although it
recognized that the factors it was considering were
similar to those under the prior tests.13 Indeed, the
Board noted that it had earlier minimized the theo-
retical difference between the two tests, and that per-
haps the differences were largely semantic.14 In any
event, the Board stated that its decision to determine
units by rulemaking reflected a desire to replace earlier
doctrinal applications with formulation of units based
on the realities of the workplace, as learned from evi-
dence presented during the rulemaking proceedings.15
Although the Board’s decision to adopt a rule with
respect to acute care hospitals was unanimously upheld
by the Court, we do not have a sufficient body of em-
pirical data as to nursing homes to make a uniform
rule as to them at this time, and perhaps never will be-
cause we are not sure that all are sufficiently uniform
to warrant finding the same units appropriate for all.
Moreover, we do not choose at this time to substitute
for either ‘‘disparity of interests’’ or ‘‘community of
interests’’ yet another short-hand phrase by which
units in all nursing homes or other nonacute care fa-
cilities will be measured. Instead, we prefer to take a
broader approach utilizing not only ‘‘community of in-
terests’’ factors but also background information gath-
ered during rulemaking and prior precedent. Thus, as
more fully set forth below, our consideration will in-
clude those factors considered relevant by the Board in
its rulemaking proceedings, the evidence presented
during rulemaking with respect to units in acute care
hospitals, as well as prior cases involving either the
type of unit sought or the particular type of health care
facility in dispute.16 We hope, however, that after var-
ious units have been litigated in a number of individual
facilities, and ‘‘after records have been developed and
a number of cases decided from these records, certain
recurring factual patterns will emerge and illustrate
which units are typically appropriate.’’17
Although nursing homes were excluded from the
Board’s rulemaking, the Board nonetheless believes
that comparing and contrasting individual nursing
home work forces with those in acute care hospitals
would aid in determining appropriate units. As the in-
stant case involves the appropriateness of a technical
unit,18 we note that the evidence with respect to
technicals found by the Board in its rulemaking pro-
ceeding to be a separate appropriate unit in acute care
hospitals indicates that they occupy various classifica-
tions such as medical laboratory, respiratory therapy,
radiography, emergency medicine, and licensed prac-
tical nurse. The record showed they perform jobs in-
volving the use of independent judgment and special-
ized training, whereas service and maintenance em-
ployees generally perform unskilled tasks and need at
most a high school education. Most hospital technicals
are either certified, licensed, or state-registered. Al-
though ‘‘de-skilling’’ is occurring in some specialties,
the Board found that the gap was tending to widen be-
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Madeira Nursing Center, 203 NLRB 323, 325 (1973).
20 Ibid.
21 Barnert Memorial Hospital Center, 217 NLRB 775, 780–781
(1975). See also Newington Children’s Hospital, 217 NLRB 793
(1975).
22 Pine Manor Nursing Home; Trinity Memorial Hospital of
Cudahy, 219 NLRB 215, 216 (1975); Alexian Bros. of Elizabeth,
219 NLRB 1122 (1972); St. Catherine’s Hospital of Dominican Sis-
ters, 217 NLRB 787 (1975). See also Southern Maryland Hospital
Center, 274 NLRB 1470, fn. 1 (1985). But see Children’s Hospital
of Pittsburgh, 222 NLRB 588 (1976).
tween technicals and other employees, with higher lev-
els of skill being generally required for the technicals.
The Board further observed, based on evidence in
the rulemaking proceeding, that technicals in acute
care hospitals earn approximately $2000 per year more
than service employees. Their wages are tied to the
earnings of the more highly skilled technologists with
whom they work, whereas the wages of unskilled serv-
ice employees are tied to the unskilled labor market.
The Board noted that technicals tend to work in lab-
oratories rather than patient care areas, and that cross-
training of technicals was shown to occur almost ex-
clusively with other technicals, thus maintaining the in-
tegrity of the technical classification.
Whether some or all of these factors are present here
should be considered in determining whether technicals
in nursing home facilities constitute a separate appro-
priate unit or, conversely, must be included in a re-
quested service and maintenance unit.
In addition, the Board in its rulemaking for acute
care hospitals set forth a number of other consider-
ations by which it would be guided:
[I]n exercising its discretion to determine appro-
priate units, the Board must steer a careful course
between two undesirable extremes: If the unit is
too large, it may be difficult to organize, and,
when organized, will contain too diversified a
constituency which may generate conflicts of in-
terest and dissatisfaction among constituent
groups, making it difficult for the union to rep-
resent; on the other hand, if the unit is too small,
it may be costly for the employer to deal with be-
cause of repetitious bargaining and/or frequent
strikes, jurisdictional disputes and wage whip-
sawing, and may even be deleterious for the union
by too severely limiting its constituency and
hence its bargaining strength. [Footnote omitted.]
The Board’s goal is to find a middle-ground posi-
tion, to allocate power between labor and manage-
ment by ‘‘striking the balance’’ in the appropriate
place, with units that are neither too large nor too
small. [Footnote omitted; 53 Fed.Reg. 33904, 284
NLRB 1534.]
These general principles are equally applicable to unit
determinations in nonacute care facilities.
We also note that some of the earlier described mat-
ters as to which evidence concerning nursing homes
was taken in the rulemaking proceeding should also be
considered even though the Rule itself excludes nurs-
ing homes. For example, the Board observed, inter
alia, from the limited evidence it received, that:
[T]here is less diversity in nursing homes among
professional, technical and service employees, and
the staff is more functionally integrated [cites to
testimony omitted]. Generally, nurses provide a
less intensive, lower level of care to patients in
skilled and extended care facilities, and thus re-
ceive lower salaries than that paid in acute care
hospitals [cites to testimony omitted]. . . .
[T]here is for the most part little difference in the
duties of LPNs and nurses’ aides [cites to testi-
mony omitted]. Both are primarily responsible for
providing nursing care to patients. [53 Fed.Reg.
33928, 284 NLRB 1567.]
We must examine the record here to determine to what
extent the facts at this nursing home accord with the
generally observations made in the course of the rule-
making proceeding.
B. Prerulemaking Unit Cases Concerning LPNs
at Nursing Homes
A number of cases prior to issuance of the Rule, in-
volving units at nursing homes, should also be consid-
ered. Noting in one pre-1974 case that ‘‘the duties and
responsibilities given to LPN’s vary considerably from
one nursing home to another,’’ the Board nonetheless
made reference to ‘‘the educational requirements gen-
erally prevailing for the practice of licensed practical
nursing,’’19 and found that the LPNs in that case en-
joyed a ‘‘substantial community of interest among
themselves which is separate and distinct from the
broader interests they share with other nursing home
employees,’’20 thus warranting their exclusion from the
requested unit. Moreover, in a lead case shortly after
passage of the 1974 health care amendments, the
Board found LPNs to be technical employees, and in-
cluded them with all other technicals.21 Since that
time, LPNs have almost always been found to be
technicals in adjudicated cases.22
Nonetheless, even in nonhealth care facilities, while
technicals are frequently excluded from broader units,
they are not automatically excluded. In Sheffield Corp.,
134 NLRB 1101 (1961), the Board announced that,
thenceforth, it would ‘‘make a pragmatic judgment in
each case [involving placement of technicals], based
upon an analysis of the following factors, among oth-
ers: desires of the parties, history of bargaining, simi-
larity of skills and job functions, common supervision,
contact and/or interchange with other employees, simi-
larity of working conditions, type of industry, organi-
zation of plant, whether the technical employees work
877PARK MANOR CARE CENTER
23 In St. Vincent Hospital, 285 NLRB 365 (1987), decided while
the rulemaking proceeding was pending, the Board stated that the
disparity-of-interests test would be applied until the final rule was
issued.
24 Units of five or fewer are, under the Rule, an ‘‘extraordinary
circumstance.’’ 54 Fed.Reg. 16341–16342, 284 NLRB 1588.
in separately situated and separately controlled areas,
and whether any union seeks to represent technical em-
ployees separately.’’ Supra at 1103–1104 (footnote
omitted). Many of these factors are relevant in
nonacute health care cases.
C. Conclusion
Though the instant case was heard and decided after
the Board had promulgated the final rule, the Regional
Director applied the traditional, community-of-interests
standard,23 concluding that the LPNs, as technicals,
should be excluded because of their ‘‘distinct func-
tions, training, skills and education.’’
Obviously, the Regional Director did not analyze
this case under the approach discussed above. In addi-
tion, the parties have never had an opportunity to ad-
dress the issue in this case from this perspective.
Moreover, the present record fails to answer some of
the questions we have posed. There is no evidence as
to the education and training required of the Employ-
er’s LPNs; nor is there evidence as to their pay as
compared to that of other nonprofessionals. The record
reveals that there are only a few functions performed
by LPNs that are not performed by CMAs and CNAs
and that the LPNs’ greatest contact is with CMAs and
CNAs. All employees in the nursing department have
considerable patient contact. Finally, there are only
four LPNs, a number too few to lead automatically to
a separate technical unit even if this were an acute care
hospital subject to the Rule.24
Accordingly, we have decided to remand the case to
the Regional Director to consider and address all the
factors set forth above. On remand, the Regional Di-
rector may reopen the hearing, should any party re-
quest it, to adduce additional evidence. Lastly, we have
noted the Employer’s plans to convert a number of
beds to skilled care leading, allegedly, to a further de-
marcation between the skill levels of RNs and those of
other employees. We invite the parties to argue all
pros and cons of the inclusion or exclusion of the
LPNs from the unit in the circumstances that now exist
at the Employer’s nursing home.
ORDER
This case is remanded to the Regional Director for
further processing in conformity with this opinion.