National Labor Relations Board v. Fairmont General Hospital, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-2301

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

FAIRMONT GENERAL HOSPITAL, INCORPORATED,

Respondent.

On Application for Enforcement of an Order of the National Labor
Relations Board. (6-CA-35297)

Argued: December 4, 2007 Decided: January 24, 2008

Before WILLIAMS, Chief Judge, and WILKINSON and MICHAEL, Circuit
Judges.

Petition for enforcement of order granted by unpublished per curiam
opinion.

ARGUED: Martin J. Saunders, JACKSON & LEWIS, L.L.P., Pittsburgh,
Pennsylvania, for Respondent. Kellie J. Isbell, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Petitioner. ON BRIEF:
Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Fred B.
Jacob, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Petitioner.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

The National Labor Relations Board (NLRB or the Board)

petitions for enforcement of its order entered against Fairmont

General Hospital (Fairmont General or the hospital) in an unfair

labor practice case. In this court Fairmont General challenges the

Board’s unit clarification decision that included two newly created

occupational medicine assistant (OMA) positions in the bargaining

unit for non-professional employees of the hospital. Fairmont

General argues that (1) the union’s petition for unit clarification

should not have been entertained because the OMA positions had been

historically excluded from the bargaining unit; and (2) even if the

petition was properly considered, the Board applied the incorrect

analysis and reached a result that the evidence does not support.

We conclude that the petition was properly entertained, that the

Board applied the correct analysis in deciding the petition, and

that the Board’s conclusions are supported by substantial evidence.

Accordingly, we grant the Board’s petition for enforcement.

I.

A.

Fairmont General is an acute care community hospital

located in Fairmont, West Virginia. Two-thirds of the hospital’s

seven hundred employees are unionized. Technical employees such as

nurses are represented by District 1199 of the Service Employees’

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International Union (SEIU), while “nonprofessional employees” are

represented by the Retail, Wholesale, and Department Store Union

Council, Local 550, United Food and Commercial Workers

International Union (the Union). J.A. 308. The Union contract

covers:

All the part-time and full-time nonprofessional
employees in the following Hospital departments:
Nutrition Services, Engineering, Laundry, Guest Services,
X-Ray, Clinical Laboratory, Medical Records, Central
Supply, and Patient Services. There is excepted from the
above departments all clerical and administrative
employees, other than ward secretaries, and all clerical
employees (except in the Medical Records department); all
department heads and their assistants; student employees;
and supervisors.

The term, “nonprofessional employees,” is intended
to exclude those whose occupations require a course of
study or an extensive technical training course or
apprenticeship, such as laboratory technicians,
registered or licensed practical nurses, or dietitians.

J.A. 308.

The Union represents approximately 180 Fairmont General

employees. Bargaining unit positions include laboratory

secretaries, certified nurse’s aides, operating room technicians,

and emergency room medical assistants. Many covered employees

perform both clerical tasks (such as answering phones and

scheduling appointments) and clinical duties (such as blood sugar

testing, drug screening, and assisting with physicals). Bargaining

unit positions do not require extensive training, although some

require limited certifications.

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 B.

In 1991 Fairmont General started providing occupational

medicine services. The occupational medicine program (OM) was

originally located in the main hospital facility and staffed by

medical technologists. OM grew as employers began requesting more

health services for their employees. In 1998 Fairmont General

responded to OM’s growth by employing a licensed practical nurse

(LPN), Cindy Ralphsnyder, and a laboratory secretary, Janice Divin,

to work in OM. The lab secretary was represented by the Union,

while the LPN and the medical technologists were represented by

SEIU.

In 1999 Brian Pulice was engaged as an independent

contractor to direct and market OM’s services, and the program

“grew astronomically.” J.A. 101. In response to the program’s

growth, Ralphsnyder and Diven moved in 2000 to an offsite location

five miles from the main hospital facility. When Ralphsnyder left

OM two years later, Fairmont General did not hire another LPN to

take her place. Instead, the hospital created the new position of

occupational medicine services coordinator (OMSC), which Diven, the

former lab secretary, filled. OMSC duties included drug and

alcohol testing, conducting physicals, drawing blood, audio

testing, pulmonary function testing, performing injections, and

otherwise assisting physicians. In addition, the OMSC position

required Diven to take on responsibility for coordinating some of

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OM’s programs. The vacant lab secretary position was filled by

Brenda Schell. The Union continued to represent the lab secretary,

but did not represent Diven in her new position as OMSC.

Between 2002 and 2005 OM’s services continued to expand.

In response the OM lab secretary position evolved to encompass

substantially more tasks than its original clerical duties. By the

end of 2004 Schell spent approximately seventy-five percent of her

time doing various clinical activities and twenty-five percent of

her time on clerical tasks. By 2005, in addition to her clerical

tasks, Schell’s duties included breath alcohol testing, various

types of on- and off-site drug testing and paperwork, multiphasic

computer entry, setting up medical equipment, vision screening,

urinalysis dips, assisting with blood drawing, taking vital signs,

and conducting physicals.

In 2004 Pulice, OM’s director, was replaced by Pam Payne

under the new title of occupational medicine director. Payne took

over many of the clerical and billing duties formerly performed by

the lab secretary. Payne also reviewed the OM job descriptions and

decided that they should be changed. Accordingly, in 2005 Payne

eliminated the lab secretary position and posted the newly created

positions of occupational medicine assistant (OMA) I and II. (The

only difference between the two positions is that the OMA II is

full-time and the OMA I is part-time.)

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 Schell received the OMA II position, and Roseann Orwig

received the OMA I position. Like Schell, Orwig’s previous title

was lab secretary. The OMA job descriptions required applicants to

have a high school diploma, current CPR certification, and basic

computer and typing skills. The positions also list several

preferred clinical certifications, some of which had previously

been obtained by Schell and Orwig for their lab secretary

positions. The OMA clinical duties were substantially the same as

Schell’s previous duties as lab secretary, except that audio and

phlebotomy testing were added. Schell’s OMA clerical duties also

were substantially the same as her previous duties, and there was

no change in her work days, hours, or supervision. As an OMA,

Schell continued to spend twenty-five percent of her time on

clerical tasks and seventy-five percent of her time on clinical

tasks.

At the same time the OMA positions were created, the OMSC

title was changed to occupational medical coordinator (OMC), and

Diven remained in this position. While the OMC tasks remained

substantially the same as the OMSC tasks, the OMC had “quasi-

supervisory duties” such as taking over the director’s

responsibilities in Payne’s absence. J.A. 220. Fairmont General

listed the OMAs and OMC as non-union in their position

descriptions. Thus, Diven remained in a non-union position, while

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Schell and Orwig ceased being represented by the Union as the

result of the title change.

C.

In August 2005 the Union filed a petition for unit

clarification with the NLRB seeking to include the new OMA

positions in the bargaining unit. After a hearing and briefing the

Regional Director issued his decision. As a preliminary matter, he

concluded that the unit clarification procedure was appropriate

under Board precedent because there were ambiguities concerning the

bargaining unit placement of individuals coming within the newly

created OMA job title.

The Regional Director then considered the unit

clarification petition. After reviewing the evidence, the Regional

Director found that the OM lab secretary was historically included

in the bargaining unit, despite the position’s increase in clinical

duties over time; Schell’s duties as OMA were similar to her

previous duties as lab secretary; and the OMA functions were

similar to those performed by other bargaining unit positions.

Based on these factual findings and Board precedent, the Regional

Director concluded that the OMAs should remain in the bargaining

unit because they “perform[ed] work which had historically been

performed by unit positions.” J.A. 425. Fairmont General appealed

to the NLRB, and a divided panel relied on the Regional Director’s

findings and denied the request for review.

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 To obtain judicial review of the decision, Fairmont

General refused to recognize or bargain with the Union as the

representative of the OMAs. The Union then filed an unfair labor

practice charge alleging the hospital’s refusal to bargain in

violation of the National Labor Relations Act. The Board granted

summary judgment to the Union and ordered Fairmont General to

bargain with the Union as the representative of employees in the

OMA position. The Board now petitions for enforcement of its

order.

II.

Fairmont General raises two arguments in opposition to

enforcement. First, it contends that the Board erred in

considering the unit clarification petition because the OMA

position had been historically excluded from the bargaining unit.

Second, the hospital argues in the alternative that the Board

applied the wrong legal standard when considering the petition and

(under any legal standard) reached the wrong conclusion.

In reviewing a decision of the Board, we must first

ensure that it is employing “reasoned decision-making” by

consistently applying its own legal standards. Baltimore Sun Co.

v. NLRB, 257 F.3d 419, 428 (4th Cir. 2001) (quoting Allentown Mack

Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 376 (1998)). We then

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determine whether the Board decision is supported by substantial

evidence. Id. (citing 29 U.S.C. § 160(e)).

III.

Fairmont General first contends that the Board improperly

allowed the Union to pursue the unit clarification procedure rather

than restricting the Union’s remedy to a petition for election.

The Board has authority to define “the unit appropriate for the

purposes of collective bargaining.” 29 U.S.C. § 159(b). During

the term of an existing union contract, a unit clarification

proceeding is appropriate for resolving ambiguities concerning the

bargaining unit placement of individuals who come within newly

created job classifications. NLRB v. Magna Corp., 734 F.2d 1057,

1061 (5th Cir. 1984); Union Elec. Co., 217 N.L.R.B. 666, 667

(1975). It is not appropriate for the Board to consider a unit

clarification petition, however, when the position has been

historically excluded from the bargaining unit. Magna Corp., 734

F.2d at 1060; see also NLRB v. Miss. Power & Light Co., 769 F.2d

276, 279-80 (5th Cir. 1985) (explaining rationale for rule).

Fairmont General argues that the unit clarification

procedure was improper here because the OMA positions were

successors to the OMSC position, which was historically excluded

from the bargaining unit. In support of its position, Fairmont

General refers to a different proceeding, where the Regional

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Director concluded that another position, the OMC position, was the

successor to the OMSC position and thus was not subject to a unit

clarification petition. We do not find this argument persuasive.

In the case before us, the Regional Director concluded

that the OMA positions were not the successors to the OMSC

position. The record supports this conclusion. The parties agree

that the OMA positions were new titles created in 2005. The

written OMA job descriptions differ from those for the OMSC and the

OMC positions because the latter two positions both involve “quasi-

supervisory duties” that are absent in the OMA positions. J.A.

220. The quasi-supervisory duties include coordinating day-to-day

operations when the director is absent. Furthermore, the use of

the word “coordinator” in the OMC job title and the word

“assistant” in the OMA title indicates a difference in

responsibility between the positions. Finally, as discussed

further in the next part, the evidence indicates that the OMA

position succeeded the OM lab secretary position, which was

historically included in the bargaining unit. Thus, it was

reasonable for the Regional Director to conclude that the OMA

positions were not successors to the OMSC position and therefore

had not been historically excluded from the bargaining unit, making

a unit clarification proceeding appropriate. See Magna Corp., 734

F.2d at 1061; Union Elec. Co., 217 N.L.R.B. 666. Since the

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Regional Director did not err in using the unit clarification

procedure, we now turn to the substance of the Board’s order.

IV.

In addressing a unit clarification petition for a newly

created job title, the NLRB conducts a two-step analysis. The

Board first considers whether “a new classification is performing

the same basic functions as a unit classification historically had

performed.” Premcor, Inc., 333 N.L.R.B. 1365, 1366 (2001);

Developmental Disabilities Inst., Inc., 334 N.L.R.B 1166, 1168

(2001). If so, the new classification is properly understood as

“remaining in the unit,” thus resolving the unit clarification

petition. Premcor, Inc., 333 N.L.R.B. at 1366; see also

Developmental Disabilities Inst., Inc., 334 N.L.R.B at 1168.

If the new classification does not remain in the unit

under the Premcor standard, however, the Board considers whether

the new position should be added to the bargaining unit through

accretion. In conducting this analysis, the Board considers

whether the employees have “an insufficient group identity to

function as a separate unit” and whether they share an

“overwhelming community of interest” with the existing bargaining

unit. Sara Lee Bakery Group, Inc. v. NLRB, 296 F.3d 292, 297 (4th

Cir. 2002) (quoting Baltimore Sun Co., 257 F.3d at 427). The Board

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looks to several factors in determining whether there is a

community of interest. Id. at 298 (listing factors).

In the case before us the Board held that the OMAs

remained in the bargaining unit under Premcor. Fairmont General

argues that the Board erred in applying Premcor because, it

contends, the OMAs do not perform the same basic functions as those

performed by the OM lab secretary. After a thorough review of the

record, we conclude that substantial evidence supports the Board’s

decision.

Schell originally joined OM as a lab secretary in 2002;

at that time she indisputably fell within the bargaining unit.

Although Fairmont General was aware that Schell’s duties changed

over time to include an increasing amount of clinical work, it

never contested the OM lab secretary’s bargaining unit status. In

2005, when Schell’s title changed from OM lab secretary to OMA, she

testified that her duties remained essentially the same as they had

been in her previous position. She stated that, as an OMA, she

continued to do such tasks as making order entries, taking vital

signs, conducting breath alcohol and drug testing, and performing

various clerical duties. Schell was able to identify only a minor

difference between the positions (the addition of phlebotomy and

audio testing in the OMA position), and she reported that the

percentages of her time spent on clinical and clerical work

remained the same after her title change. In fact, Kimberly

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Cheuvront, Fairmont General’s assistant vice president of business

and development, testified that the OMA position was created for

the sole purpose of better reflecting the actual work performed by

Schell. Cheuvront also testified that Schell retained the same

work hours, supervision, and job site after the title changes.

Fairmont General argues that the Board should not have

compared Schell’s duties directly before and after the title change

to determine whether both positions performed the same basic

functions. Instead, it argues, the Board should have compared the

tasks originally performed by the OM lab secretary in 1998 with the

OMA job description adopted in 2005. This argument misreads the

Board’s “same basic functions” analysis, however. In applying this

standard to clarify the unit placement of a new classification, the

Board has consistently compared the position duties in the time

closely preceding a title change with those assumed immediately

after the title change. See, e.g., Premcor, Inc., 333 N.L.R.B. at

1365-66; Developmental Disabilities, Inc., 334 N.L.R.B. at 1166-68.

The Board appropriately applied the same analysis in this case.

The Board’s conclusion finds further support in the

existing unit description in the Union contract. See Developmental

Disabilities, Inc., 334 N.L.R.B. at 1168 (Hurtgen, concurring). As

defined by the contract, and in contrast to the technical positions

represented by SEIU, the OMA and other unit positions do not

“require a course of study or an extensive technical training

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course or apprenticeship.” J.A. 308. Instead, the OMA positions

simply require a high school diploma, CPR certification, and basic

typing and computer skills. Furthermore, despite Fairmont

General’s argument that the Union does not represent positions that

perform clinical work, OMAs perform similar tasks as other

bargaining unit positions. For example, like OMAs, nurse’s aides

take blood pressures, document patient information, take vital

signs, and perform blood sugar, breath alcohol, and drug testing.

Several bargaining unit positions are, also like OMAs, responsible

for stocking and ordering supplies, preparing patient records and

examination rooms, and answering phones.

We recognize that the employer contested the Union’s

evidence by presenting some testimony that OMA duties were more

similar to the OMC duties than to the OM lab secretary duties.

There is no basis, however, for us to conclude that the Regional

Director erred in his credibility determinations or in weighing the

evidence. In sum, because there is substantial evidence in the

record to establish that the employees in the OMA positions

performed “the same basic functions as [the OM lab secretary]

historically had performed,” Premcor, Inc., 333 N.L.R.B. at 1366,

the Board did not err in its ultimate decision to include the OMA

positions in the bargaining unit. An accretion analysis is

therefore unnecessary in light of our holding that Premcor and the

record support the Board’s decision.

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 V.

For the foregoing reasons, the Board’s petition for

enforcement of its order is granted.

PETITION FOR ENFORCEMENT
OF ORDER GRANTED

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