The opinion
UNPUBLISHED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Petition for enforcement of order granted by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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