St. Joseph Hospital

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St Joseph Hospital and International Union of Oper- ating Engineers, Local 399, AFL-CIO, Petitioner Case 13-RC-13501 May 28, 1976 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 Chester L Grinage of the National Labor Relations Board Fol- lowing the hearing, and pursuant to Section 102 67 of the National Labor Relations Board Rules and Re- gulations and Statements of Procedure, Series 8, as amended, the Regional Director for Region 13 trans- ferred this case to the Board for decision The Em- ployer and Petitioner t each filed briefs and supple- mental briefs On August 21, 1975, the Board, having determined that this and a number of other cases in the health care industry presented issues of importance in the administration of the National Labor Relations Act, as amended, scheduled oral argument in this and re- lated cases, limited to the issue of the appropriate- ness and scope of a separate maintenance unit in the health care industry Oral arguments were heard on September 9, 1975 2 Briefs and oral arguments on be- half of amicus curiae were permitted by the Board and have been duly considered The Board has reviewed the Hearing Officer's rul- ings 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 Employer is engaged in the operation of a nonprofit general hospital in Chicago, Illinois It has gross annual revenues in excess of $5 milhon and annually receives $50,000 worth of goods from out- side the State of Illinois We find that the Employer is engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, and that it will effec- tuate the purposes of the Act to assert jurisdiction herein 2 The Petitioner is a labor organization as defined in the Act and claims to represent certain employees of the Employer 3 No question affecting commerce exists concern- mg the representation of certain employees of the i The Petitioner's motion to disqualify Member Penello from participat- ing in any decision herein on the grounds that he will fail to consider the record in this case is wholly without merit and is hereby denied Member Penello has also individually considered the motion and finds no basis for disqualifying himself from participation in this case 2 Member Walther, while he did not participate in the oral argument, has considered the record and the arguments of the parties Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the following reasons The Employer herein operates a nonproprietary hospital in Chicago, Illinois It employs about 750 employees in 6 major administrative divisions which operate under the direction of an assistant adminis- trator In addition, there are several smaller depart- ments subordinate to the administrative divisions which provide necessary services to the patients Each department within an administrative division has a department head The divisions include nursing services, rehabilitation services, professional services, materials management, financial services, and envi- ronmental services The last includes basic support service divisions, such as the laundry, housekeeping and parking, biomedical engineering, as well as the maintenance and engineering department The Peti- tioner seeks an election in a unit limited to about 32 employees encompassing approximately 9 job classi- fications in the maintenance and engineering depart- ment The requested unit includes all stationary engi- neers and maintenance employees, but excludes all other employees, professionals, guards, and supervi- sors The Petitioner contends that the requested unit is appropriate on the ground that the employees con- stitute a readily identifiable group whose similarity of functions and craft skills creates a community of in- terest which warrants separate representation The Employer contends that a unit limited to mainte- nance and engineering employees is presumptively inappropriate because they do not constitute a func- tionally distinct and homogeneous department with diverse interests sufficient to override the broader community of interest which they share with all other hospital employees There is no history of collective bargaining We find, for the reasons given below, that the unit sought is inappropriate The employees sought by Petitioner, as noted, are assigned to the maintenance and engineering depart- ment The maintenance shop, located in the base- ment of the main building,' and the boilerroom, lo- cated in the basement of the Manor building,4 are the principal bases of operation for employees of the maintenance and engineering department Like other departments performing basic patient care services, the maintenance and engineering department oper- ates 24 hours a day, 7 days a week, on a three-shift basis The particular employees sought by Petitioner are classified as licensed stationary engineers, plumbers, carpenters, electricians, painters, and maintenance 3 Housekeeping central sterilizing and central supply dietary medical education pharmacy storage and a machine equipment room, inter alia, are also located in the basement of the main building 4 The laundry and the paint shop are also located there 224 NLRB No 47 ST JOSEPH HOSPITAL 271 employees, classes I, II, and III I Many employees in the maintenance and engineering department, in ad- dition to performing regular assignments, are also as- signed work listed on "work order" forms forwarded to the department from employees in other hospital departments The 10 stationary engineers operate and maintain all high-pressure steam, heating, air-handling, and air-conditioning equipment There are three station- ary engineers scheduled to work on each shift How- ever, only one stationary engineer per shift maintains watch at the control panel in the boilerroom The others in this classification check and maintain the above-described equipment wherever it is located in other areas of the hospital 6 On the second shift and on weekends when only a skeletal crew of mainte- nance department personnel are assigned to duty, stationary engineers are assigned to perform neces- sary maintenance work which other maintenance de- partment personnel cannot handle On the third shift when no other maintenance department personnel are on duty, stationary engineers handle all routine maintenance problems throughout the hospital The skilled tradesmen and the employees in the highly skilled maintenance classifications perform carpentry, plumbing, and electrical work, as well as some of the more complicated maintenance work I The remaining maintenance employees perform numerous routine maintenance functions as part of the general maintenance program necessary to main- tain the efficiency of the entire hospital In carrying out these responsibilities, they have daily contact with other employees assigned to various areas Thus, maintenance I and II employees, inter alga, in- stall floor and ceiling tile, and assist others in main- taining and repairing machinery and steam and air- handling equipment Maintenance III employees, on the other hand, are generally engaged in performing unskilled tasks such as changing light bulbs, groundskeeping, and a variety of "handyman" type functions throughout the hospital 5 The employees in these classifications are a diversified group ranging from relatively unskilled maintenance employees in maintenance III to rela- tively skilled stationary engineers, discussed infra 6 The maintenance department is also responsible for servicing and main- taining miscellaneous mechanical equipment located on the 5th and 13th floors, and cooling towers on the roof of the main hospital building which are part of the central heating and cooling system of the hospital 7 Other employees also do maintenance work, however Employees in the biomedical department, who are not included in Petitioner's request, main- tain and repair patient-monitoring equipment and other portable sophisti- cated electrical equipment, such as suction machines and incubators Other evidence in the record shows that employees in the housekeeping depart- ment, also a department not sought by the Petitioner, do repair work which requires the use of small handtools The installation, repair, and maintenance of some hospital equipment is contracted out This, the hospital has subcontracted for the repair of refrig- eration and freezer equipment, the "call light" system, and oxygen equip ment, and the installation of heating and cooling equipment The Employer has also designated some employees from the maintenance and engineering department as maintenance-floormen These individuals are per- manently assigned to four floors each and are charged with performing routine maintenance func- tions reported by other employees working on those floors In addition, a maintenance employee is as- signed to work in the laundry area where he spends the entire day performing routine maintenance work Employees in the maintenance and engineering de- partment generally spend the majority of their time outside the physical confines of the maintenance de- partment Thus, the painters are assigned to paint patient rooms, offices, and other facilities in all areas of the hospital Likewise, electricians, plumbers, car- penters, and employees in other miscellaneous main- tenance classifications are assigned duties within their areas of expertise in other areas of the hospital The Employer estimated that they spend between 60-90 percent of their time outside the maintenance department The maintenance and engineering department em- ployees are subject to the same personnel policies and receive the same fringe benefits as all other non- professional nonsupervisory employees Thus, each employee is covered by the same group hospital, re- tirement, and life insurance programs and each em- ployee enjoys the privileges of discounts for hospital and pharmacy bills and for food in the cafeteria There is little difference between the hourly wage scale of the employees in the maintenance and engi- neering department and that of employees in other departments Thus, the wage scale for employees in the unit sought ranges from $3 43 per hour for the maintenance III classification to $7 50 per hour for stationary engineers The wage scale for other em- ployees ranges from $2 93 per hour for various aides to $8 55 per hour for some technicians Employees are paid on a biweekly basis and generally work an 8-hour shift As-noted, supra, three stationary engi- neers are assigned to each shift With respect to the remaining 22 employees in the maintenance and en- gineering department, about 19 of them are assigned to the first (day) shift, 3 are assigned to the second shift, and none are assigned to the night shift All employees are notified of job openings in other departments and employees are encouraged to apply by submitting a uniform transfer request through the personnel office The record shows that there are transfers among all departments and there is some evidence of transfer from other departments into the maintenance III classification The record shows that there are about 100 nonpro- prietary hospitals in the Chicago area About one- third of them have agreements, or are engaged in 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining, in a variety of bargaining units, including service and maintenance units The employees of the remaining hospitals are not represented The Peti- tioner represents employees at about 10 area hospi- tals, one of which is the University of Illinois Medi- cal Center At five of these hospitals it represents stationary engineers only, at four it represents sta- tionary engineers and employees who do mainte- nance work Thus, although there is some evidence of area bargaining in units similar to that petitioned for herein, the record shows a varied bargaining pattern, which does not require the establishment of a sepa- rate unit of the maintenance and engineering depart- ment at the Employer's hospital 8 It is also apparent that the maintenance and engi- neering department employees do not constitute a separate appropriate unit on a craft basis The Em- ployer, contrary to the Petitioner, does not hire only journeymen or their equivalent for craft positions The assistant administrator of the division testified that the Employer looks for individuals who are trained specialists in the various crafts capable of us- ing the customary tools of the trade in a skillful man- ner The most skilled employees are the 10 licensed sta- tionary engineers The remaining craft-titled classifi- cations are not required to be journeymen nor does the Employer have a regular apprenticeship program to train journeymen All training, if necessary, is done on the job when the less skilled are assigned to assist the more skilled employees Although the craft- like employees perform many tasks customarily per- formed by employees possessing their descriptive ti- tles, they also perform many relatively unskilled tasks Moreover, as noted supra, the record testimony shows that it is not uncommon for the Employer to hire independent contractors or to call upon the em- ployees of equipment suppliers to come upon the premises and make repairs on many appliances and other types of machinery and equipment around the hospital which its own employees cannot do because of the nature of the repairs or because they do not have the skills or tools to do the work Furthermore, it is clear from the entire record that the great majori- ty of tasks requires only "handyman" skills in order to service and maintain the degree of efficiency nec- essary to achieve the objectives established by the Employer In Riverside Methodist Hospital, 223 NLRB 1084 (1976), we have, for the reasons stated therein, 8 Water Tower Inn, a Partnership, 139 NLRB 842 (1962), cited by the Petitioner in support of its assertion that area practice dictates a less com- prehensive unit, is clearly distinguishable on the facts , since there is no `extensive and deep-rooted bargaining history ' in evidence in this proceed- ing found that the employees of a plant operations de- partment similar to those petitioned for herein do not comprise a distinct and homogeneous group of em- ployees with interests sufficiently separate from other employees to warrant separate representation In this proceeding, as set forth in detail, supra, the mainte- nance and engineering department employees sought by the Petitioner are similar to those employees in Riverside in terms of their job duties and functions, the wide variety of their background and skills, the nature of the work performed, the substantial degree of regular contact with other employees, and in the sharing of fringe benefits and other terms and condi- tions of employment In view of the entire record, and in the light of our decision in Riverside, supra, we find that the employ- ees of the maintenance and engineering department do not possess a community of interest sufficiently separate and distinct from the broader community of interest which they share with all other service and maintenance employees to warrant finding that they constitute a separate appropriate unit Accordingly, and as the Petitioner has not indi- cated that it would be willing to participate in an election in a broader unit,' we shall dismiss the peti- tion herein ORDER It is hereby ordered that the petition be, and it hereby is, dismissed CHAIRMAN MURPHY and MEMBER FANNING, dissent- ing The record demonstrates that the employees in the maintenance and engineering department constitute a readily identifiable group whose related functions, skills, and conditions of employment establish their community of interest Accordingly, we would direct v In his separate concurring opinion in St Vincent s Hospital 223 NLRB 638 (1976), Member Penello clarified his position as taken in Shriners Hospitals for Crippled Children 217 NLRB 806 (1975) on the appropriate- ness of maintenance units in the health care industry In so clarifying his position, Member Penello stated that he is of the view that a craft mainte nance unit may be appropriate when, viewed in light of all the criteria traditionally considered in determining the appropriateness of maintenance units generally, its establishment does not conflict with the congressional mandate against proliferation of bargaining units in the health care indus- try This standard which is a more rigid one than is applied in other indus tries, can be met, in Member Penello's view when the unit sought unlike the situation in Shriners, is composed of licensed craftsmen engaged in tra ditional craft work which is performed in a separate and distinct location apart from other employees in the health care facility Normally, such em- ployees do not perform other services throughout the health care facility, as was the case in Shriners, and there is at most, minimal transfer or inter- change to and from the craft unit In the instant case no union is seeking to represent the stationary engineers separately However if such a unit was sought herein, it would not satisfy the standard set forth by him in his concurring opinion in St Vincent s for finding a craft maintenance unit to be appropriate ST JOSEPH HOSPITAL 273 an election in the maintenance and engineering de- partment unit sought by the Petitioner The maintenance and engineering department em- ployees are highly skilled, with 17 of them being jour- neymen The overwhelming majority of the employ- ees in the department are the hospital's highest paid nonprofessional employees Wages range from $5 54 per hour to $7 51 per hour for 23 of the approximate- ly 32 employees Moreover, most of these employees receive the maximum rate within 2 years, with the engineers, carpenters, plumbers, and electricians re- ceiving the maximum rate in 6 months 10 The maintenance and engineering department op- erates with a high degree of autonomy Hiring inter- views are conducted by the department head and, once hired, an employee's salary scale, starting time, and work base are set by his department head Em- ployees participate in a departmental orientation program and the department promulgates work rules and dress regulations Seniority, which is recognized for promotions and scheduling vacations, is depart- mental The department head is instrumental in granting wage increases, promotions, transfers, over- time, vacations, breaktimes, sick leave, and dis- charge Moreover, he exercises no general authority outside his department There is little transfer, no in- terchange, and no evidence of maintenance and engi- neering department employees being supervised by anyone outside of their departments In accordance with principles long recognized by the Board," Petitioner is seeking merely to represent the employees in one department-the maintenance and engineering department, a unit in which the hos- pital has administratively organized itself according to function There is no bargaining history on the basis of a more inclusive unit Petitioner represents a unit of stationary engineers only and a unit of stationary and maintenance engineers who perform mainte- nance work at a number of area hospitals Although, as stated by the majority, this does not require the establishment of a separate maintenance and engi- neering department unit, neither can it be said to preclude it or even act as a material factor in render- ing the unit inappropriate Clearly it is a relevant fac- tor indicating the appropriateness of the unit since the Act requires only that the unit be appropriate, that is, appropriate to insure to employees in each case "the fullest freedom in exercising the rights guaranteed by this Act " 12 It is clear that Congress contemplated the appro- priateness of departmental units Representative Thompson, Chairman of the House Special Subcom- mittee on Labor and co-sponsor of the amending legislation, stated that "the Committee did not intend to foreclose the Board from continuing to determine the traditional craft and departmental units, such as stationary engineers in the health care field " (Em- phasis supplied )13 Petitioner is seeking to represent a well-defined separate engineering and maintenance department which is comprised of a nucleus of highly paid and highly skilled employees who have their own base of operations and who are responsible for the opera- tion, repair, and maintenance of the hospital's physi- cal plant For the reasons stated above and for the reasons stated in our dissents in The Jewish Hospital Association of Cincinnati d/b/a Jewish Hospital of Cincinnati, 223 NLRB 614 (1976), and Riverside Methodist Hospital, 223 NLRB 1084 (1976), we would direct an election in the maintenance and en- 10 This is particularly notable in comparison with the employees in the gineering department unit sought by the Petitioner other departments where it takes 4 years to go from the starting rate to the maximum rate 72 Morand Brothers Beverage Co, et a! 91 NLRB 409 (1950) enfd 190 11 See, e g , International Paper Company (Southern Kraft Division) 96 F 2d 576 (C A 7 1951) NLRB 295 (1951) 13 120 Cong Rec E 4899 (daily ed , July 22 1974)