Divine Providence Hospital

DIVINE PROVIDENCE HOSPITAL 521 Divine Providence Hospital of Pittsburgh and Inter- national Union of Operating Engineers, Local 95-95A, AFL-CIO. Case 6-CA-12725 March 17, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 7, 1979, by International Union of Operating Engineers, Local 95-95A, AFL-CIO, herein called the Union, and duly served on Divine Providence Hospital of Pittsburgh, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a com- plaint and notice of hearing on October 9, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 5, 1979, following a Board election in Case 6-RC-8445, the Union was duly certified as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate;' and that, commencing on or about July 24, 1979, and, more particularly, by letter dated September 17, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On October 19, 1979, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. Respondent admits that it meets the Board's jurisdictional standards. Respondent denies that the employees designated by the Regional Di- rector in his Decision and Direction of Election constitute an appropriate bargaining unit. Respon- dent admits that on July 5, 1979, the Regional Di- rector for Region 6 certified the Union as the ex- clusive bargaining representative of all the employ- ees in the unit found appropriate. Respondent I Official notice is taken of the record in the representation proceed- ing, Case 6-RC-8445, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Inrertype Co. v. Penello, 269 FSupp 573 (D.C.Va. 1967); Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended 248 NLRB No. 78 admits that the Union has requested and is request- ing Respondent to bargain with it as the exclusive representative of all the employees in the unit found appropriate. Respondent admits the allega- tion that it refused, and continues to refuse, to meet and bargain with the Union as the collective-bar- gaining representative, but denies the conclusory 8(a)(5) and (1) allegations. It alleges that the Re- gional Director erred by certifying the Union as the exclusive collective-bargaining representative of Respondent's plant operations department em- ployees, because these employees do not comprise a unit appropriate for the purposes of collective bargaining. Respondent alleges that a separate unit of plant operations department employees is inap- propriate due to the congressional admonition against the proliferation of bargaining units in the health care field and, further, that such unit is inap- propriate even judged by the traditional communi- ty-of-interest standards. On November 9, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 27, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and its response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis that the peti- tioned-for unit is inappropriate as a matter of law. Respondent maintains that the criteria used to de- termine the appropriateness of the unit consisted of the traditional community-of-interest criteria, which standard is not appropriate in the health care field due to the congressional admonition against the proliferation of bargaining units in the health care field and in light of the recent Third Circuit Court of Appeals decision in Allegheny General Hospital v. N.L.R.B., 608 F.2d 965 (1979), (1979), which strongly affirmed its prior opinions in Memorial Hospital of Roxborough v. N.L.R.B., 2 Respondent's motions were styled as "Cross-Motion for Summary Judgment, Opposition to the General Counsel's Motion for Summary Judgment" and "Supplemental Reply to General Counsel's Motion for Summary Judgment." DIVINE PROVIDENCE HOSPITAL 521 522 DECISION OF NATIONAL LABOR RELATIONS BOARD 545 F.2d 351 (3d Cir. 1976) and St. Vincent's Hospi- tal v. N.L.R.B., 567 F.2d 588 (3d Cir. 1977). Re- spondent also urged that the unit is inappropriate even judged by the traditional community-of-inter- est standard. Review of the record herein reveals that in Case 6-RC-8445 the petition was filed by the Union on March 28, 1979. On May 18, 1979, the Regional Director issued his Decision and Direction of Elec- tion, in which he found, inter alia, that the peti- tioned-for unit of plant operations department em- ployees was an appropriate unit for collective bar- gaining. On May 29, 1979, Respondent filed a re- quest for review of the Regional Director's Deci- sion and Direction of Election, which was denied by the Board on June 14, 1979, as it raised no sub- stantial issues warranting review. The election was held on June 21, 1979. At the conclusion of the balloting, the tally revealed that 11 votes had been cast for and 1 vote had been cast against the Union. There were no challenged ballots. Respon- dent filed no objections to the conduct of the elec- tion. On July 5, 1979, the Regional Director issued and served on the parties a Certification of Repre- sentative certifying the Union as the exclusive col- lective-bargaining representative of the employees in the unit found appropriate. Following a request by the Union on or about July 24, 1979, and, more particularly, by letter dated July 23, 1979, that Respondent engage in col- lective bargaining negotiations with the Union, Re- spondent, by letter dated September 17, 1979, re- fused to recognize and bargain in good faith with the Union as the exclusive bargaining representa- tive of its employees in the certified unit. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and, except for circuit court decision in Allegheny General, supra, Respon- dent does not offer to adduce at a hearing any newly discovered or previously unavailable evi- dence, nor does it allege that any special circum- stances exist herein which would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore find that Respon- dent has not raised any issue which is properly liti- gable in this unfair labor practice proceeding. 3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). Respondent relies upon Allegheny General, supra, in support of its argument opposing General Coun- sel's Motion for Summary Judgment and Cross- Motion for Summary Judgment. Respondent states that Allegheny General strongly reaffirms the court's prior opinions in Memorial Hospital of Rox- brough v. N.L.R.B., supra, and St. Vincent's Hospital v. N.L.R.B., supra, and that these decisions control the outcome of the present case. While we recog- nize that these cases may be similar in some re- spects to the present case, these decisions are not controlling because of fundamental differences in the nature of the bargaining unit sought here. 4 The court's holding in Memorial Hospital, supra, and the reason for which it is cited in Allegheny General, concerns the issue of comity. In both cases the Board had granted comity to the Pennsylvania Labor Relations Board's certification of bargaining units comprised of hospital maintenance employees. In Memorial Hospital the court ruled that the Board acted beyond its authority because it did not exer- cise its own discretion in determining the appropri- ateness of the unit, but rather acceded to the judg- ment of the state agency. In the present case there was no state involvement in the parties' activities, therefore, one of the basic premises of the court's holding in Memorial Hospital and Allegheny General is inapposite. The Court in Memorial Hospital spoke only brief- ly to the merits of the unit determination. It recog- nized that although the 1974 Health Care Amend- ments to the National Labor Relations Act were themselves silent on the issue, the legislative histo- ry contained an admonition against undue prolifera- tion of bargaining units in the health care industry. The court stated that this congressional advice was a factor to be used by the Board in exercising its discretion in determining bargaining units, but that this factor was not to be controlling. In St. Vincent's, supra, the court elaborated upon this point by stating that the community-of-interest elements traditionally relied upon by the Board in establishing bargaining units must be balanced against the public interest in preventing fragmenta- tion and disruption in the health care field. In that case, the Board certified a unit consisting solely of four boilerroom operators. The court stated that because the legislative intent was to treat the health care industry in a special way, the Board's me- 4 On February 1, 1980, the Board filed with the Supreme Court a peti- tion for writ of certiorari to the United States Court of Appeals for the Second Circuit in N.L.R.B. v. Mercy Hospital Association, 606 F.2d 22 (1979). The issue presented is whether the 1974 health care amendments to the National Labor Relations Act permit the Board to apply tradition- al community-of-interest criteria in determining appropriate bargaining units in the the health care industry, provided the Board's determinations are consistent with the congressional admonition to avoid undue prolif- eration of bargaining units in health care institutions. DIVINE PROVIDENCE HOSPITAL 523 chanical reliance on traditional unit patterns such as licensing, supervision, skills, and employee joint activity in certifying this unit were improper. However, St. Vincent's is distinguishable from the instant case. The entire plant operations department of Divine Providence Hospital has been certified as an appropriate unit. This department includes a wide variety of skilled employees, including four city-licensed stationary engineers who operate and maintain the boilerroom and heating and cooling systems. Four other employees also possess station- ary engineers' licenses, including a journeyman painter; a formally trained and certified refrigera- tion mechanic; a formally trained electrician who is also skilled in plastering, carpentry, masonry, and cabinetmaking; and a journeyman carpenter-ap- prentice boilermaker who has also completed weld- ing school. In addition, this department includes the position of carpenter, for which Respondent prefers an experienced, vocationally or academical- ly trained person with a background in blueprint reading, mechanical drawing, math, carpentry, and woodworking; a biomedical technician who is re- quired to have specialized training in electronics along with practical experience; and three chauf- feur-groundskeeper-laborers who are required to possess a Pennsylvania driver's license. These em- ployees are supervised separately from all other hospital employees, work either alone or with one another, and wear distinct uniforms and identifica- tion badges. Only the chauffeur-groundskeeper-la- borers share comparable wage rates with the hospi- tal service employees and reach the maximum rate after 18 months on the job. The remainder of the plant operations department employees earn sub- stantially higher wages, reflecting their greater skills and training, and reach their maximum rate after 30 months of employment. Respondent urges that all service and mainte- nance employees should be encompassed within a single bargaining unit rather than the plant oper- ations employees alone. This would involve nurses aides, orderlies, unit clerks, dietary and housekeep- ing employees, laundry clerks, storeroom clerks, and central supply employees. The differences be- tween these job classifications and those in the plant operations department are many. The most obvious difference is that these employees do not possess the level or type of skill required of most of the plant operation department employees. They are also separately supervised, work apart from the plant operations employees, work different hours and shifts, some have direct patient contact, wear different colored uniforms, and share no responsi- bilities with the plant operations employees. Fur- ther, except for one person in the position of chauf- feur-groundskeeper-laborers, there has been no in- terchange between the service employees and the plant operations department. Considering these factors, together with the leg- islative and judicial pronouncements warning against the possible adverse effects from an over- abundance of bargaining units in health care facili- ties, we conclude that the plant operations depart- ment should be represented separately from the service employees. The court's decisions in Memo- rial Hospital, St. Vincent's, and Allegheny General did not announce a per se rule proscribing certifica- tion of such a unit, but rather have reminded the Board that when exercising its discretion in deter- mining bargaining units in the health care industry, it has the added responsibility of balancing the em- ployees' interest in adequate representation against the special consideration of avoiding disruption in that industry. Because of this extra consideration, we find that the nature of the work performed and job responsibilities of all the plant operations em- ployers, i.e., continuing maintenance and improve- ments of the facility, outweigh the differences be- tween the chauffeur-groundskeeper-laborers and the remainder of the plant operations employees and mandates their inclusion in the unit. Accord- ingly, we grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Pennsylvania corporation en- gaged in the operation of a nonprofit health care institution located at Pittsburgh, Pennsylvania. In the course of its business operations within the Commonwealth of Pennsylvania, Respondent annu- ally purchases goods and services valued in excess of $5000 directly from sources located outside the Commonwealth of Pennsylvania and annually de- rives gross revenues in excess of $250,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The International Union of Operating Engineers, Local 95-95A, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. DIVINE PROVIDENCE HOSPITAL 523 524 DECISION OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by Divine Providence Hospital of Pittsburgh in its plant operations department, including biomedical technicians, engineers, re- frigeration mechanics, construction mechanics, carpenters, electricians, painters and chauffeur- groundskeeper-laborers; excluding office cleri- cal employees, all other employees and guards, professional employees and supervisors as de- fined in the Act. 2. The certification On June 21, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 6, designated the Union as their representative for the purpose of collective bargaining with Respondent.The Union was certi- fied as the collective-bargaining representative of the employees in said unit on July 5, 1979, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 24, 1979, and more particularly by letter dated July 23, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about July 24, 1979, and more par- ticularly by letter dated September 17, 1979, and continuing at all times thereafter to date, Respon- dent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent has, since July 24, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Divine Providence Hospital of Pittsburgh is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 95-95A AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed by Divine Providence Hospital of Pitts- burgh in its plant operations department, including biomedical technicians, engineers, refrigeration me- chanics, construction mechanics, carpenters, elec- tricians, painters and chauffeur-groundskeeper-la- borers; excluding office clerical employees, all other employees and guards, professional employ- ees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. DIVINE PROVIDENCE HOSPITAL 525 4. Since July 5, 1979, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 24, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Divine Providence Hospital of Pittsburgh, Pitts- burgh, Pennsylvania, its officers, agents, successors, and assigns, shall: Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Operating Engineers, Local 95-95A, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time employees employed by Divine Providence Hospital of Pittsburgh in its plant operations department, including biomedical technicians, engineers, re- frigeration mechanics, construction mechanics, carpenters, electricians, painters and chauffeur- groundskeeper-laborers; excluding office cleri- cal employees, all other employees and guards, professional employees and supervisors as de- fined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Pittsburgh, Pennsylvania, place of busniess copies of the attached notice marked "Ap- pendix."5 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER PENEIIO, dissenting: Instead of granting General Counsel's Motion for Summary Judgment, I would dismiss the complaint in its entirety on the ground that the petitioned-for unit is inappropriate. See my dissent in Allegheny General Hospital, 239 NLRB No. 104 (1978), en- forcement denied 608 F.2d 965 (3d Cir. 1979). Every Court that has considered my colleagues' position that bargaining units confined to mainte- nance employees in health care institutions are gen- erally appropriate has rejected it. In its most recent decision, the Third Circuit decisively declined to approve such a unit in Allegheny General Hospital, the leading case in which the Board sought to ra- tionalize its position. Previously, the Second Cir- cuit, in N.L.R.B. v. Mercy Hospital Association, 606 F.2d 22 (1979), and the Seventh Circuit, in N.L.R.B. v. West Suburban Hospital, 570 F.2d 213 (1978), had concluded that the Board's granting of separate representation to hospital maintenance em- ployees was contrary to congressional intent. Nonetheless, the majority purports to find this unit of maintenance employees appropriate largely on the ground that the department in which they work "includes a wide variety of skilled employ- ees." However, it need only be recalled that, in Al- legheny, the Board also took the position that, "the vast majority of the maintenance department em- ployees are skilled craftsmen who perform craft s In the event that this Order is enfoirccd by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Ord r of the National I.abor Relatinns Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals nforcing an Order of the National I.abor Relations Board" D I V I N E P R O V I D E N C E H O S PI T A L 525~~~~~~~~~~~~~~~~~~~~ 526 DECISION OF NATIONAL LABOR RELATIONS BOARD work and must possess craft skills when hired," 239 NLRB No. 104, supra. Accordingly, there is no genuine distinction between this case and Alleghe- ny. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Operating Engi- neers, Local 95-95A, AFL-CIO, as the exclu- sive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employ- ees employed by Divine Providence Hospi- tal of Pittsburgh in its plant operations de- partment, including biomedical technicians, engineers, refrigeration mechanics, construc- tion mechanics, carpenters, electricians, painters and chauffeur-groundskeeper-labor- ers; excluding office clerical employees, all other employees and guards, professional employees and supervisors as defined in the Act. DIVINE PROVIDENCE HOSPITAL OF PITTSBURGH