Shriners Hospitals for Crippled Children

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shriners Hospitals for Crippled Children andInterna- tional Union of Operating Engineers, Stationary Lo- cal No. 39, AFL-CIO, Petitioner. Case 20-RC-12467 May 5, 1975 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Edward S. Kaplan. Pursuant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 20, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer and the Petitioner filed briefs in support of their respective positions. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Shriners Hospitals for Crippled Children is a Colorado corporation which, in conjunction with six related corporations or associations, operates 22 non- profit hospitals throughout the United States, Canada, and Mexico. One such facility is in San Francisco, Cali- fornia, the location of the unit petitioned for herein. The San Francisco facility cares for 50 to 75 orthopedi- cally handicapped children under the age of 15 who are admitted wholly free of charge without regard to race, color, creed, sex, or sect. No patient is admitted who is capable of paying or whose parents or guardians are capable of paying. The 1974 amendments to the National Labor Rela- tions Act' removed from the definition of "em- ployer," as used in the Act, the exclusion of "any cor- poration or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual;" the Board thereby gained statutory jurisdiction over nonprofit health care insti- tutions. Although the Employer does not dispute that it is a health care institution, it contends that the Board should nevertheless decline to assert its jurisdiction here because it is purely philanthropic, charitable, and eleemosynary. The Employer emphasizes that it exacts no fee from its patients and receives no reimbursement for the care of any patient from any third-party source, public or private, such as friends, insurance companies, Medicare, Medi-Cal, or Federal, state, or local govern- mental agencies. Instead, the operating expenses for each hospital are met by allocations from the national I P.L 93-360, effective August 25, 1974. Shriners Hospitals organization which derives its in- come from gifts, bequests, the return on investments, and a $5 annual assessment from each Shriner.2 Prior to the passage of the 1974 amendments, the Board issued a decision in Ming Quong Children's Cen- ter, 210 NLRB 899 (1974), holding that it would not effectuate the policies of the Act for the Board to assert jurisdiction, without a special kind of justification, over a nonprofit, charitable child care facility which did not fall into the classification of a nursing home or hospital.' The 1974 amendments added Section 2(14) to the Act which provides that, for the purposes of the Act, "[t]he term `health care institution' shall include any [emphasis supplied] hospital, convalescent hospi- tal, health maintenance organization, health clinic, nursing home, extended care facility, or other institu- tion devoted to the care of sick, infirm, or aged person." It is clear that the hospital amendments apply to health care institutions irrespective of any charitable nature. Since the installation here involved is clearly a health care institution within the above definition, the ra- tionale of the Ming Quong and Crotched Mountain decisions has no application, and we must consider the monetary aspects of this Employer's operations. The gross annual revenues during 1973 of the Shrin- ers Hospitals for Crippled Children amounted to ap- proximately $32 million, 77 percent of which was ob- tained from returns on investments, 13 percent of which was obtained from assessments from members of the Shriners fraternal order, and 10 percent of which was obtained from gifts and bequests. From the above revenue, the national office, located in Chicago, Il- linois, disbursed $1,457,000 to the San Francisco Shrin- ers Hospital for Crippled Children for its operating expenses. During 1973, the San Francisco facility made purchases in excess of $270,000 for food, drugs, medi- cal and other supplies, part of which represents direct out-of-state purchases valued in excess of $18,000. At this time, the Board is not prepared to establish juris- dictional standards for , nonprofit health care institu- tions. Although the Board has previously asserted ju- risdiction over proprietary hospitals which come within its statutory jurisdiction and have a gross volume of $250,000,4 a standard which the Employer here meets, we leave to subsequent adjudication the determination of the precise monetary standard to be applied to nonprofit health care institutions. In view of the foregoing facts disclosing that statutory jurisdiction - is established and that the Employer has income arising from returns from investments involving operations in 2 Shriners are members of a fraternal order which devotes a portion of its treasury to the Shriners Hospitals for Crippled Children 3 Also see Crotched Mountain Foundation, 212 NLRB 420 (1974), de- cided prior to amendment of the Act to cover health care institutions 4 Butte Medical Properties, d/b/a Medical Center Hospital, 168 NLRB 266 (1967). 217 NLRB No. 138 SHRINERS HOSPITAL FOR CRIPPLED CHILDREN 807 commerce and affecting commerce,' there is no ques- tion but that the Employer is engaged in commerce within the meaning of the Act. Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. - 3. No question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act, for the following reasons: The Hospital's staff includes registered nurses, laboratory technologists, physical therapists, resident physicians, office clerical employees, researchers, or- thopedic attendants, a surgical technician, a photogra- pher, an x-ray technician and helper, a brace maker, a storeroom aide, a recreation director, dietary em- ployees, laundry employees, housekeepers, a gardener, and stationary engineers. The Petitioner seeks to repre- sent 5 of 88 employees in a unit described as: "all stationary engineers employed at the Employer's San Francisco facility, excluding all nurses, janitors, dietary employees and guards and supervisors as defined by the Act." The Employer contends that the only appropri- ate unit is one of all nonprofessional employees exclud- ing office clerical employees. We find the unit sought inappropriate. The five stationary engineers maintain a 7-day-per- week, 24-hour-per-day watch operating and maintain- ing the boilers. In addition, they perform carpentry, plumbing, and electrical duties as part of the general maintenance of the Hospital and its facilities. The areas in which they work include, inter alia, the laundry, kitchen, nursing, and surgery areas where they come into daily contact with other employees assigned to those areas, contrary to the assertion of our dissenting colleagues that the engineers sought do not even see any other employees except for the most insignificant and momentary periods of time. As time allows, they manu- facture spare parts and make patient-related equip- 5 The Employer contends that it fails to meet any jurisdictional standard established by the Board since it views "revenue" as income or fees for services rendered to patients whether such income or fees come from pa- tients themselves or from third-party payers It argues that its revenue is zero since it receives no fees. The Employer further contends that assess- ments from Shnners, returns on investments, and gifts and bequests are not the type of items which are to be considered in determining whether an employer meets a jurisdictional standard To the contrary, the Board, in determining whether a jurisdictional standard has been met, looks to the amount of income and not the source of that income See, e.g., Sec. 103 1 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, which states that the Board will assert its jurisdiction in any proceeding involving any private nonprofit college or university " . which has a gross annual revenue from all [emphasis supplied] sources (excluding only contributions which, because of limitation by the grantor, are not available for use for operating expenses) off not less than $1 million." Also see fn 4 of the Board's statement published concurrently with Sec. 103 1 of the Rules and Regulations at p. 204. There is no showing that here any gifts or bequests are so limited. ment. The stationary engineer on duty during the night shift has, as, his primary duty, the maintenance of the boilers and air-conditioning equipment, but, since he is the only male employee at the Hospital during the night shift, he also makes security rounds. There are no other employees performing the security function. Oc- casionally on the night shift, the stationary engineer is asked to help move a patient. The Employer's chief engineer testified that, when he hires a new employee, he looks at previous boiler experience but places more emphasis on experience in other maintenance areas be- cause he can train new employees for the duties re- quired in the boilerroom. In fact, the Employer has no stationary engineers who have had apprenticeship training in boiler maintenance, and there is no evidence that the stationary engineers are licensed. The stationary engineers and the other nonprofes- sional employees are all subject to the same fringe bene- fits, same insurance programs, retirement program, and petsonnel policies. There are variations in the hourly wage rates of the stationary engineers and other employee categories, but, otherwise, working condi- tions are the same for all employees. Although the stationary engineers are separately supervised and have no interchange with other employees, all employees share a fundamental community of interest in the oper- ation of the Hospital, and there is substantial contact among them because of the highly integrated and inter- dependent nature of the Employer's operations. In view of the above, we are not persuaded that the stationary engineers possess a community of interest sufficiently separate and distinct from the broader com- munity of interest which they share with all other serv- ice and maintenance employees, except for business office clericals, to warrant their inclusion in a separate unit. The principal thrust of the legislative history of the health care amendments of the Act admonishes the Board to avoid undue proliferation of bargaining units in the health care industry. The Senate Committee Re- port states:6 Due consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry. In this connection, the Committee notes with approval the recent Board decisions in Four Seasons Nursing Center, 208 NLRB No. 50 . . . (1974), and Woodland Park Hospital, 205 NLRB No. 144. . . (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB 1232 . . . (1973).' 1 By our reference to Extendicare,,we do not necessarily approve all the holdings of that decision 6 S. Rept. 93-766, 93d Cong., 2d sess 5 (1974), also H. Rept 93-1051, 93d Cong, 2 sess 7 (1974). - 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Senator Williams also stated:7 . . . the National Labor Relations Board has shown good judgment in establishing appropriate units for the purposes of collective bargaining, particularly in wrestling with units in newly cov- ered industries . While the Board has, as a rule, tended to avoid an unnecessary proliferation of collective bargaining units, sometimes circum- stances require that there be a number of bargain- ing units among nonsupervisory employees, par- ticularly where there is such a history in the area or a notable disparity of interests between em- ployees in different job classifications. While the committee clearly intends that the Board give due consideration to its admonition to avoid an undue proliferation of units in the health care industry, it did not within this framework intend to preclude the Board acting in the public interest from, exercising its specialized experience and expert knowledge in determining appropriate bargaining units. (N.L.R.B. v. Delaware-New Jer- sey Ferry Co., 128 F.2d 130 (3d Cir. 1942)). We also find pertinent the following comments of Sena- tor Taft:' The issue of proliferation of bargaining units in health care institutions has also greatly concerned me during consideration of legislation in this area. Hospitals and other types of health care institu- tions are particularly vulnerable to a multiplicity of bargaining units due to the diversified nature of the medical services provided patients. If each professional interest and job classification is per- mitted to form a separate bargaining unit, numer- ous administrative and labor relations problems become involved in the delivery of health care ... the Board should be permitted some flexibil- ity in unit determination cases. I cannot stress enough, however, the importance of great caution being exercised by the Board in reviewing unit cases in the area. Unwarranted unit fragmentation leading to jurisdictional disputes and work stop- pages must be prevented. We strongly disagree with our dissenting colleagues' assertion that we have ignored the criteria traditionally considered when making unit determinations. Rather, it is they who have ignored the congressional mandate to avoid the proliferation of bargaining units in the health care industry. We are mindful that, under ordi- nary circumstances, units similar to the one requested here have been found appropriate in other industries, 7 120 Cong Rec S12104 (1974) 8 120 Cong. Rec. S6940 (1974) but ordinary circumstances do not exist here. In adopt- ing the hospital amendments , Congress recognized that labor relations in the health care industry require spe- cial considerations due to the uniqueness of that indus- try in terms of the services it provides to the sick, infirm, or aged. It is in the context of the peculiar nature of the industry and the congressional mandate against the proliferation of bargaining units that we have weighed all of the criteria traditionally considered when making a unit determination and have, on bal- ance, concluded that it is proper to place special signifi- cance on the high degree of integration of operations performed throughout a health care facility. Were we to adopt the rationale applied by our dis- senting colleagues, we could be faced with requests to find appropriate dozens of separate units of employees performing diverse professional, technical, and service and maintenance functions in an industry which, by its very nature, requires great numbers of employees in a myriad of classifications all ultimately involved in providing patient care. We shall not do so, because such an approach can only lead to an undue fragmenta- tion of bargaining units in the health care industry which would totally frustrate congressional intent. Thus, while Congress mandated the avoidance of proliferation of bargaining units, as set forth in the above statements, as well as the statement of Congress- man Thompson relied on by our dissenting colleagues, Congress left the establishment of appropriate units to the discretion and expertise of the Board. Congress neither foreclosed nor mandated continued adherence to traditional unit determinations. Mindful of the con- gressional mandate and in the exercise of our discre- tion, we find that, in the health care industry, the only appropriate unit for collective bargaining which en- compasses stationary engineers is a broad unit consist- ing of all service and maintenance employees of the Employer, excluding professionals and business office clericals.' It follows that a separate unit of stationary engineers is inappropriate. Accordingly, and as the Pe- titioner has not indicated that it would be willing to participate in an election in a unit broadened to include all service and maintenance employees, excluding professionals and business office clericals, we shall dis- miss the petition herein.10 ORDER It is hereby ordered that the petition be, and it hereby is, dismissed. 9 Neither the Petitioner nor the Employer contended that, business office clericals should be included in the unit sought. io In view of the findings above, we need not reach the issue of whether certain employees in the requested unit are "guards" within the meaning of the Act SHRINERS HOSPITAL FOR CRIPPLED CHILDREN 809 MEMBER JENKINS, concurring: I conclude that the unit of five stationary engineers sought here is inappropriate . In doing so, I do not adopt any of the rationale of my colleagues who have reached a similar conclusion. Their rationale is the same as expressed in their dissents in other cases in the health care industry decided concurrently with this case.' 1 In those cases I have expressed my disagree- ment with this rationale and the results it produces there. In finding the unit inappropriate here, I do so on the basis of what I regard as the correct standards of community of interest in the circumstances of this par- ticular case, to be applied in the light of an understand- ing of the legislative history of the health care amend- ment different from that of my colleagues who reach the same result. Thus, although Iiemain in accord with the principles expressed by my dissenting colleagues, I am in disagreement with their evaluation of the facts. CHA[RMAN MURPHY and MEMBER FANNING, dissenting in part: We dissent from our colleagues' conclusion that the stationary engineers involved herein do not possess a community of interest sufficiently separate and distinct from the broader community of interest which they share with other employees to warrant their inclusion in a separate unit. The employees sought here are all hired by the chief engineer of the Employer. They are, with the exception of nurses hired by the nursing director, the only em- ployees not hired by the administrator of the Employer. They are the only employees, with the exception of nurses, who work round the clock, 7 days a week. Their shift hours are unlike those of any other employees. They are separately supervised and paid different wages at different rates. Their functions are not shared with any other employees. They never call on any other employees for assistance and no other employee assists them in their work. There is no interchange between them and any other employees. They are the only em- ployees responsible for and the only employees suffi- ciently skilled to maintain the integrity of the air-condi- tioning, heating, and pressurization systems. They work with and on expensive equipment no other em- ployees are even allowed to touch. They, and they alone, maintain all kitchen, laundry, and surgical equipment and do all carpentry, plumbing, and electri- cal work. At least one engineering employee must be present at all times "because no one else can look after the Boiler Room. . . . A lot of things can happen. The plant can shut down for one thing." When the chief engineer is not present (during the swing and graveyard shifts), engineering employees report to no one, "they 11 E g., Mount Airy Foundation, d/b/a Mount Airy Psychiatric Center, 217 NLRB 802 (1975) report to the log book." Although the majority con- tends they share a "fundamental community of interest in the operation of the hospital" with all other em- ployees, the record does not even detail whether the engineers sought even see any other employees except for the most insignificant and momentary periods of time. 12 These employees possess such an apparent, singular, homogeneous community of interest in and amongst themselves and apart from all other employees that it is obvious our colleagues only pretend to rest their dismissal of the petition herein on community of inter- est grounds. We-can only assume that the real reason for the dismissal of this petition results from the majori- ty's view that the legislative history surrounding pas- sage of the health care amendments to the Act fore- closes finding the unit sought herein to be appropriate. We do not share that view. The only legislative history which could colorably support the majority's view is the favorable citation of Four Seasons Nursing Center, 208 NLRB 403 (1974), in the Committee Reports ac- companying the legislation which ultimately removed the nonprofit hospital exemption. That case is clearly distinguishable from the instant case. The employees sought in Four Seasons were unskilled and employed in functions indistinct from those performed by em- ployees in the housekeeping department. They shared common supervision with housekeeping employees. They performed only minor maintenance, with work requiring any specialized skills being contracted out by the employer therein. That Four Seasons is inapposite to the instant case is clear when one considers the remarks of Representative Thompson, chairman of the House Special Subcommit- tee on Labor and cosponsor of the amending legisla- tion. They are the only remarks in the legislative his- tory particularly on point: With respect to the question of bargaining units the committee stressed its concern with preventing an undue proliferation of bargaining units in the health-care industry. The committee cited certain Board decisions in the health-care industry which 12 All employees leave work at 4 p in. except for dietary personnel who depart at 6:30 p.m and the nursing staff, which, Like the engineers , maintains a 24-hour, 7-day-a-week schedule. Of the five engineers sought, one works the graveyard shift when no one except the nurses is present and two work the swing shift (3-11 p m.). Thus, for the major part of their workday also, no other employees except nurses are present Moreover, there is no indica- tion m the record of their contact with other employees between the hours of 3 and 4 p.m. or, in the case of the dietary personnel, between the hours of 3 and 6.30 p.m. The remaining two engineers work the day shift, one from 6.30 a in. to 3 p.m., the other from 9 a.m. to 5 30 p.m Their "single most time-consuming" task is maintenance of the automatic equipment in the boilerroom. It is true that by nature of their functions the two day-shift engineering employees can be presumed to come in contact with other employees but (a) the record does not detail the extent of that contact and (b) the record does lead to the conclusion that their extensive boilerroom activities comprise the major portion of their workday 81-0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would reflect the-statutory mandates. By so doing, however, the committee did not intend to foreclose the Boardfrom continuing to determine traditional craft and departmental units, such as stationary engineers in the health-care field. [Emphasis supplied.]13 In addition, Senator Williams, sponsor of the Senate bill and chairman of the Senate Committee on Labor and Public Welfare, commenting on unit questions in general, stated on the Senate floor: While the Board has, as a rule , tended to avoid an unnecessary proliferation of collective bargaining units, sometimes circumstances require that there be a number of bargaining units among non -super- visory employees, particularly where there is such a history in the area or a notable disparity of inter- ests between employees in different job classifica- tions. [Emphasis supplied.] That there is a "notable disparity of interests" be- tween the employees sought in this proceeding and all other employees of the Employer needs no further ex- position. Moreover, the record indicates that the Peti- tioner herein has collective-bargaining agreements cov- ering engineers with approximately 50 percent of all hospitals in northern California . Petitioner further represents engineering employees , on a separate basis, in 99 percent of the hospitals in the immediate Bay and 'San Jose areas. Finally, there is uncontradicted evi- dence that the Employer's engineering operations and 13 120 Cong Rec. E4899 (daily ed. July 22, 1974) 14 N.L.R.B v Metropolitan Life Insurance Co., 380 U.S 438, 443, fn 6 (1965) "When the Board so exercises the discretion given to it by Congress, it must `disclose the basis of its order Id. at 443 requirements are substantially similar to the operations and requirements of the large number of health care facilities which already have collective-bargaining rela- tionships with the Petitioner. In the final analysis, the basis of dismissal of this petition is unarticulated, resting only on "the exercise of [the majority's] discretion." That discretion, how- ever, must be informed and meet the criteria for judicial review. 14 It is not an invitation to ignore such tradi- tional factors as mutuality of interest in wages and hours; commonality of supervision, skills, and func- tions; infrequency of contact with other employees; lack of interchange and functional integration; and area practice and patterns of bargaining . Examination of all these criteria leads inescapably to the conclusion that the unit sought by Petitioner is an appropriate one. That the majority completely ignores the Board's tradi- tional unit criteria is manifest when one considers the sweeping generality of the conclusion that in the health care industry, the only appropriate unit for collective bargaining which encompasses stationary engineers is a broad unit consisting of all service and maintenance employees of the Em- ployer, excluding professionals and business office clericals. In short the majority's stated view is that a unit of stationary engineers can never be an appropriate unit. With that understanding, it is clear that the majority has ignored the criteria of which we speak only because an examination of such criteria is apparently irrelevant. However, in this case, on these facts, the employees sought most assuredly enjoy a community of interest in and amongst themselves and apart from all others. We would direct an election.