Penobscot Valley Hospital and Me. Fed. of Nurses and Health Care Professionals AFT, No. 85-A-01, reversing in part and affirming in part No. 85-UD-08. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-A-01 Issued: February 6, 1985 ______________________________________ ) PENOBSCOT VALLEY HOSPITAL ) ) and ) REPORT OF APPELLATE REVIEW ) OF UNIT DETERMINATION MAINE FEDERATION OF NURSES AND HEALTH ) CARE PROFESSIONALS, AFT, AFL-CIO ) ______________________________________) This is an appeal of a unit determination report, filed pursuant to 26 M.R.S.A. Section 968(4) on December 21, 1984, by Penobscot Valley Hospital ("Employer"). The unit determination report, dated December 7, 1984, which is the subject of this appeal, created two bargaining units of employees of the Penobscot Valley Hospital. The two units thus created were a Professional and Technical bargaining unit, composed of both professional and non-professional employees, and a Support and Clerical Employees bargaining unit. In this appeal, the Employer has argued: (1) the two units created by the hearing examiner are inappropriate for purposes of collective bargaining; (2) three or four bargaining units should have been created; (3) certain supervisory employee classifications should have been included in the units created; (4) the hearing examiner erred in holding that the Secretary to the Nursing Director is a confidential employee, within the meaning of 26 M.R.S.A. Section 962(6)(C); (5) the procedure used to ascertain whether the professional employees wished to be included in a unit together with non-professional employees was improper; (6) the hearing examiner erred in failing to apply relevant National Labor Relations Board precedent in reaching his decision; and (7) the hearing examiner made several erroneous findings of fact. A hearing on this matter was held on January 16, 1985, Chairman Edward S. Godfrey presiding, with Employer Representative Thacher E. Turner and Employee Representative Harold S. Noddin. The Appellant Employer was represented by Charles S. Einsiedler, Jr., Esq., and the Maine Federation of Nurses and Health Care Professionals, AFT, AFL-CIO [-1-] ______________________________________________________________________ ("Union") was represented by National Representative Eileen McManus. The parties were afforded full opportunity to present evidence and to make argument, within the strictures applicable to this appellate pro- ceeding. Both parties filed post-hearing briefs to supplement the written argument previously submitted to the hearing examiner. The parties' original and supplemental memoranda of law have been con- sidered by the Maine Labor Relations Board ("Board"). JURISDICTION Penobscot Valley Hospital is an aggrieved party, within the con- text of 26 M.R.S.A. Section 968(4). The Maine Federation of Nurses and Health Care Professionals, AFT, AFL-CIO, is a lawful organization which has at its primary purpose the representation of employees in their employment relations with employers, within the meaning of 26 M.R.S.A. Section 962(2). The jurisdiction of the Maine Labor Relations Board to consider this appeal and render a decision herein lies in 26 M.R.S.A. Section 968(4). FINDINGS OF FACT AND CONCLUSIONS OF LAW This unit determination appeal is being conducted under the authority granted to the Board by the relevant provisions of the Municipal Public Employees Labor Relations Act ("Act"), Title 26 M.R.S.A. Section 961, et seq. The standard of review, used to eval- uate the correctness of the hearing examiner's actions, is that such findings of fact and conclusions of law will be sustained unless they are "unlawful, unreasonable, or lacking in any rational factual basis." City of Bath and Council 74, AFSCME, MLRB No. 81-A-01, at 6 (Dec. 15, 1980); Auburn Firefighters Association and City of Auburn, MLRB No. 83-A-07, at 4 (Dec. 5, 1983). The Employer contends that the unit determination report at issue contains several errors of fact. The findings alleged to be inac- curate are listed in paragraph 8, sub-paragraphs (a) through (g), of the Employer's Statement of Issues on Appeal. We have reviewed the Employer's averments in light of the controlling standard cited above -2- ______________________________________________________________________ and find that none of the alleged errors of fact, considered either separately or in combination, leads us to believe that the hearing examiner labored under a basic misunderstanding of the material facts of this case. Even if the alleged errors of fact were all clearly established, they would not constitute reversible error. The first issue of law which we will address is whether the hearing examiner erred by failing to apply National Labor Relations Board precedent in this matter. We have in the past stated that, in interpreting the relevant provisions of the Act in the unit deter- mination context, reference should be made to the parallel sections of the National Labor Relations Act and decisions thereunder. City of Bangor and Local 1599, International Association of Fire Fighters, MLRB No. 80-A-03, at 3-4 (July 18, 1980). The examination of relevant federal precedent, as an aid to the construction of the various provi- sions of the Act as a whole, has been approved by the Supreme Judicial Court. Baker Bus Service v. Keith, 428 A.2d 55, 56, n.3 (Me. 1981). The Employer has argued that, until recently, the National Labor Relations Board's application of its community of interest test would have resulted in the creation of seven separate bargaining units of hospital employees and that result should have been persuasive in this case. We reject the Employer's contention for three separate reasons. Administrative and judicial constructions of the National Labor Relations Act, within the hospital bargaining unit context, clearly indicate that the relevant sections of federal law are not analogous to the section of the Act pertinent to this proceeding. Private sec- tor hospital unit determinations turn upon interpretation of the 1974 health care amendments to the National Labor Relations Act, 29 U.S.C.A. Sections 152(14), 158(d) and (g), 169, and 183. See, St. Francis Hospital, 271 NLRB No. 160, 116 LRRM 1465, 1467-70 (1984) and cases cited therein. Since language similar to that of the 1974 health care amendments has not been incorporated into the Municipal Public Employees Labor Relations Act, the hearing examiner found federal precedent to be unpersuasive in this case. Unit Determination Report, at 12-13, n.5. We agree. Second, while it is our practice -3- ______________________________________________________________________ to examine the analysis used by the National Board and the Federal Courts in interpreting parallel sections of the National Act as an aid in construing the Municipal Public Employees Labor Relations Act, the hearing examiner, subject to appellate review by the Board, should apply such federal reasoning as may be found persuasive to the facts presented, in reaching an appropriate decision in each case. Third, while it is advisable to consider federal precedent in resolving questions of first impression, the community of interest issue has often been addressed by this Board. The controlling section of the Act, Section 966(2), provides that there must be "a clear and iden- tifiable community of interest among the employees concerned" for a given bargaining unit to be appropriate for purposes of collective bargaining. Since its adoption in Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, at 3-4 (Oct. 17, 1979), we have consistently approved of the application of an 11-point test to evaluate the pre- sence or absence of the requisite community of interest. Council 74, AFSCME and Teamsters Local 48 and Cumberland County, MLRB No. 84-A-04, at 10-11 (April 25, 1984). By applying the 11-point test in his com- munity of interest analysis, Unit Determination Report, at 6, n.3, the hearing examiner adopted a correct legal standard for evaluating the appropriateness of the bargaining units in this case. The hearing examiner focused mainly on three separate community of interest factors in his unit determination analysis. The three primary areas of his inquiry were: (1) similarity in the kind of work performed, (2) similarity in qualifications, skills, and training, and (3) similarity in wage scales. These factors are among those which we have often applied in evaluating the requisite community of interest under Section 966(2) of the Act. City of Brewer, supra. Hearing exa- miners have broad discretion particularly in deciding community of interest questions. Auburn Firefighters Association, supra, at 8. We cannot say that the hearing examiner's decision to emphasize these three factors is unreasonable in the context of this case. The facts underlying the unit composition decisions are outlined at pages 7 through 15 of the Unit Determination Report. Our review indicates that the hearing examiner applied the correct legal standard and that -4- ______________________________________________________________________ the critical facts underlying his conclusion are supported by substan- tial evidence in the record. We affirm the hearing examiner's com- munity of interest determinations. We hold that the Support/ Clerical Unit, as constituted in the Unit Determination Report, is appropriate for purposes of collective bargaining. Despite the fact that they share a clear and identifiable com- munity of interest and would, together, constitute an appropriate unit for collective bargaining purposes, Section 966(2) provides that "[nlo unit shall include both professional and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit . . ." The Employer has challenged the hearing examiner's finding that the professional employees have indicated their intent to be included in the same unit with certain non-professional employees, in satisfaction of the statutory requirement. The specific objec- tions, noted in paragraphs 5 and 6 of the Statement of Issues on Appeal, are as follows: "The inclusion of professional employees in the same bargaining unit with non-professional employees, without holding an election to determine if a majority of such professionals would vote to be included in that bargaining unit; [and] The failure of the Union to serve on the employer, in accordance with M.L.R.B. Rule 1.06, the petition referred to in the Unit Determination Report and apparently dated October 10, 1984." In this case, the Union approached each of the professional employees, individually, and asked whether that person wished to unite with non- professional employees in a single bargaining unit for collective bargaining purposes. Each of the professional employees who agreed to such inclusion signed the same document, which was then filed with the Board on October 10, 1984. It is this writing which was called a petition on pages 1 and 12 of the Unit Determination Report and upon which the challenged finding was based. We will consider the Employer's second objection first. The petition which is the subject of Rule 1.06 of the Board's Rules and Procedures is the petition for unit determination. The document filed -5- ______________________________________________________________________ on October 10, 1984 was merely offered as evidence of some pro- fessional employees' wishes to be included in the same bargaining unit with non-professional employees for collective bargaining purposes. The list of signatures of professional employees was not a petition for unit determination; therefore, the Union did not violate Rule 1.06 when it failed to serve a copy of the document filed on October 10, 1984 on the Employer. Relying on Northern Aroostook Vocational Educators and Saint John Valley Vocational Cooperative Board, Unit Determination Report (Jan. 20, 1983), the hearing examiner held that the procedure followed by the Union in this case satisfied the Section 966(2) requirement. We believe that the reliance on the Northern Aroostook Vocational Educators principle was misplaced in this case. The factual context, in which the earlier unit decision was made, was reported as follows: "The Union representative stated that the pro- fessional employees have voted to be included in a unit with the non-professional employees, and as evidence of the vote he introduced a petition signed by most of the professional employees which states that the signers 'desire to have our employment position(s) included in a single bargaining unit containing both professional and nonprofessional positions.' This petition was admitted into the record as Union Exhibit No. 1. The hearing examiner accepts the Union represen- tative's representation and the petition as suf- ficient evidence that a majority of the professional employees have voted to be included in a unit with the nonprofessional employees, and therefore finds that the language of Section 966(2) has been satisfied." Northern Aroostook Vocational Educators, supra, at 2. Since no pro- fessional employee vote was conducted in the present case, the facts of the Northern Aroostook matter are clearly distinguishable from those now before the Board. We hold that the petition procedure uti- lized by the Union in this case does not satisfy the requirement of a vote set forth in Section 966(2) of the Act. To rectify the lack of a proper professional employee vote at the Penobscot Valley Hospital, we will order the Executive Director to -6- ______________________________________________________________________ conduct, contemporaneous with the bargaining agent election and through such mechanism as he deems appropriate, a secret ballot vote of the professional employees whose classifications have been placed by the hearing examiner in the "Professional/Technical Unit." The purpose of that vote will be to ascertain whether a majority of said professional employees wish to be included in a bargaining unit with the non-professional employees whose classifications were also placed in the "Professional/Technical Unit" by the hearing examiner.[fn]1 If a majority of all the professional employees favor such inclusion, the professional employees' ballots on the issue of representation will be tallied together with those of the said non-professional employees, to determine whether a majority of the combined group, as a single Professional/Technical Unit, wish to be represented by a bargaining agent for collective bargaining purposes. Should a majority of all the professional employees not vote in favor of such inclusion, the professional employees' ballots on the issue of representation and those of the said non-professional employees will be counted separa- tely, to determine whether either group, as a separate bargaining unit, wishes to be represented by a bargaining agent for purposes of collective bargaining. The professional employees, whose wishes on the question of inclusion in the same unit with the said non- professional employees will be ascertained in the manner described above, are those designated by the Employer at page 2 of its brief before the hearing examiner: the Physicians Assistants, the Registered Nurses and the Medical Technologists. In light of the nature of their work and their educational background, the employees in these three classifications are "professional employees," within _________________ 1 The professional employees will be voting on whether they wish to be included in a single bargaining unit with the non-professional employees in the following job classifications: Licensed Practical Nurse, Licensed Practical Nurse/Operating Room Technician, Certified Nursing Assistant, Unit Secretary, Assistant Chief Technologist, Medical Laboratory Technician, Certified Laboratory Assistant, Technical Laboratory Assistant, Lab Secretary/Phlebotomist, Pharmacy Nurse Technician, Pharmacy Technician, Operating Room Technician, Staff Radiological Technologist, Physical Therapy Assistant and Emergency Medical Technician. -7- ______________________________________________________________________ the definition of Section 962(5) of the Act. Having affirmed the conclusion that the professional employees share the requisite clear and identifiable community of interest with each other as well as with the said non-professional employees, we hold that each of the possible units resulting from the professional employees' vote on the unit- inclusion question is appropriate for purposes of collective bargaining: i.e., either one Professional/Technical Unit or a Professional Unit and a separate Technical Unit. The Employer argues that the hearing examiner erred as a matter of law in excluding the employees in the Unit Manager, Shift Manager, and Patient Account Supervisor job classifications from either of the two bargaining units created. Applying the tripartite test embodied in Section 966(1) of the Act, the hearing examiner found that these employees satisfied each requirement of the statutory standard and, therefore, are supervisory employees within the meaning of the Act. Section 966(1) does not require the exclusion of supervisory employees from bargaining units composed of the employees whom they supervise but relegates the decision of the supervisory employees' unit status to the sound discretion of the hearing examiner. Maine School Administrative District No. 14 and East Grand Teachers Association, MLRB No. 83-A-09, at 12 (Aug. 24, 1983). Except in instances where the resulting one- or two-member supervisory unit would contravene our policy of discouraging the proliferation, through fragmentation, of small bargaining units, we have approved of the creation of such separate supervisory units. Maine School Administrative District No. 14, supra, at 12-13; Maine School Administrative District No. 43 and Maine School Administrative District No. 43 Teachers Association, MLRB No. 84-A-05, at 4-5 (May 30, 1984). The purpose of creating separate supervisory employee bargaining units is to minimize potential conflicts of interest within bargaining units, between supervisors and their subordinate employees, as well as to lessen conflicts of loyalty for supervisors between duty to their employer and allegiance to fellow unit employees. The Employer concedes that the employees in question are super- visory employees, within the meaning of Section 966(1), but argues -8- ______________________________________________________________________ that they should have been included in either of the two units created by the unit determination decision. The record indicates that there are at least eight supervisory employees at the Penobscot Valley Hospital. Unit Determination Report, at 18. In the event that a supervisory employees bargaining unit is constituted at some time in the future to include at least the three pertinent classifications, such unit would not violate our non-proliferation policy. We hold that the hearing examiner did not abuse his discretion in excluding clearly supervisory employees from the bargaining units created in this case. The Appellant's final allegation is that the hearing examiner erred in concluding that the Secretary to the Director of Nursing is a confidential employee, within the meaning of the Act. Section 962(6)(C) provides that those employees who have a significant involvement with collective bargaining or labor relations matters, other than contract administration duties, on behalf of the public employer are excluded from the collective bargaining coverage of the Act and may not be placed in any bargaining unit. We have further clarified our interpretation of Section 962(6)(C) as follows: "This requirement, that the employee's par- ticipation in collective bargaining matters be significant, does not set out a strict empirical formula mandating the inclusion or exclusion of employees from collective bargaining. That deter- mination must be made on an ad hoc basis by the hearing examiner on the facts developed through the unit hearing process. The requirement of sig- nificance of an employee participation in collec- tive bargaining matters may be satisfied either when the individual's involvement is substantial, although it is performed rarely, or when the acti- vity is relatively minor but is undertaken on a regular basis as part of the employee's job func- tions. The significance of the employee's involve- ment turns on the nature of his or her access to information which could, if revealed to the bargaining agent, jeopardize the employer's collective bargaining position, Town of Fairfield [and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing (11/27/78)] at 3, and also on what the employee does with such information. The employee must use -9- ______________________________________________________________________ said information in the formulation and deter- mination of the employer's labor relations policies or collective bargaining proposals in order to be found to be a confidential employee. Waterville Police Department [and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Hearing (Oct. 4, 1978)], at 3." Maine School Administrative District No. 14, supra, at 8-9, citing State of Maine and Maine State Employees Association, MLRB No. 82-A-02, Interim Order, at 18 (June 2, 1983). Despite the last sen- tence in the above quotation, we have previously stated that clerical employees who do not formulate or determine the employer's labor rela- tions policies may, nevertheless, be found to be confidential employees This conclusion is in recognition of the fact that "in many if not most cases, 'confidential' supervisory employees need access to at least one 'confidential' clerical employee, in order to carry out their 'confidential' duties." State of Maine, supra. at 28. The facts underlying the holding that the secretary to the Director of Nursing is a confidential employee are outlined on page 19 of the Unit Determination Report. Although the Employer contends that the Secretary's work primarily involves contract administration acti- vities, the record also shows that the employee types nursing policies formulated by the Director of Nursing and has access to information which, if revealed to the bargaining agent outside the ordinary course of business, could "giv[e] the union an unfair advantage and jeopardiz[e] the Hospital's positions." Unit Determination Report, at 19-20. Were we making the initial ruling in this matter, we might possibly have reached a different conclusion; however, the hearing examiner heard all the testimony and was in the best position to eva- luate it. His decision that, in the circumstances, the Secretary to the Director of Nursing is a confidential employee is supported by substanttal evidence in the record and is, therefore, affirmed. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor -10- ______________________________________________________________________ Relations Board by 26 M.R.S.A. 968(4) (Supp. 1984-85), it is ORDERED: 1. The hearing examiner's December 7, 1984 order, creating a Professional/Technical Bargaining Unit at Penobscot Valley Hospital, is reversed. Contemporaneous with the bargaining agent elec- tion mentioned below, the Executive Director, through such mechanism as he deems appropriate, shall conduct a secret ballot vote of the professional employees who had been placed in the "Professional/Technical Unit" by the hearing exa- miner, to determine whether a majority of said professional employees wish to be included in a bargaining unit together with non-professional employees whose classifications were also placed in the "Professional/Technical Unit" by the hear- ing examiner. If a majority of said professional employees vote in favor of such inclusion, the professional employees' ballots on the issue of representation will be tallied together with those of the said non-professional employees, to determine whether a majority of the combined group of voters, as a single Professional/ Technical Unit, wish to be represented by a bargaining agent for collective bargaining pur- poses, Should a majority of the said pro- fessional employees not vote in favor of such inclusion, said professional employees' ballots on the issue of representation and those of the aforementioned non-professional employees will be counted separately, to determine whether either group, as a separate bargaining unit, wishes to be represented by a bargaining agent for purposes of collective bargaining. 2. Since the professional employees mentioned in the preceding paragraph share a clear and iden- tifiable community of interest with each other as well as with the non-professional employees men- tioned in said paragraph, we hold that each of the possible units which could result from the professional employees' vote on the unit inclu- sion question is appropriate for purposes of collective bargaining. 3. The Support/Clerical Bargaining Unit of Penobscot Valley Hospital employees, created by the December 7, 1984 Unit Determination Report, is appropriate for collective bargaining purposes and the unit determination decision creating said unit is affirmed. -11- __________________________________________________________________________ 4. The hearing, examiner's order of December 7, 1984, excluding the Unit Managers, Shift Managers, and Patient Account Supervisor from either of the bargaining units of Penobsoot Valley Hospital employees created on that date, is affirmed. 5. The hearing examiner's order of December 7, 1984, declaring the Secretary to the Director of Nursing of the Penobscot Valley Hospital to be a confidential employee, is affirmed. 6. As soon as possible, the Executive Director shall conduct representation elections for the bargaining units mentioned in paragraph 2 and 3 above as well as a unit status vote for the pro- fessional employees mentioned in paragraph 1 hereof. Dated at Augusta, Maine, this 6th day of February, 1985. MAINE LABOR RELATIONS BOARD /s/_________________________________ The parties are advised Edward S. Godfrey of their right to seek Chairman review of this decision and order by the Superior Court by filing a complaint pursuant to 26 M.R.S.A. /s/_________________________________ 968(4) (Supp. 1984-85) and Thacher E. Turner 972 (1974) and in accordance Employer Representative with Rule 80B of the Rules of Civil Procedure within 30 days of the date of this decision. /s/_________________________________ Harold S. Noddin Employee Representative -12- ______________________________________________________________________