Duke University

National Labor Relations Board - Board Decisions

May 5, 1975

217 N.L.R.B. 799 (N.L.R.B. 1975)

DUKE UNIVERSITY 799
Duke University ' and International Union of Operat-
ing Engineers , Local Union No . 455,,AFL-CIO, Pe-
titioner . Cases 1l-RC-3953 and 11-RC-3954
May 5, 1975 -
DECISION ON REVIEW, ORDER, AND
DIRECTION OF ELECTION
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Ronald Yost of the
National Labor Relations Board. On November 22,
1974, the Regional Director for Region 11 issued a
Decision and Direction of Election in each of the
above-entitled proceedings. Thereafter, the Employer,
in accordance with Section 102.67 of the National La-
bor Relations Board Rules and Regulations, Series 8,
as amended, filed a request for review of the Regional
Director's decisions on the grounds that he erred in
finding appropriate the respective units of maintenance
employees and switchboard operators.
On January 16, 1975, the Board, having determined
that this and a number of other cases in the health care
industry presented issues of importance in the adminis-
tration of the National Labor Relations Act, as
amended, scheduled oral argument in several of the
cases, including Case 11-RC-3953, as well as oral ar-
gument on the general question of the composition of
appropriate bargaining units in the health care indus-
try. Member Kennedy dissented from the grant of oral
argument. Oral arguments were heard on January 27,
1975. Briefs amici curiae were filed by interested par-
ties and have been duly considered by the Board.
On February 4, 1975, the National Labor Relations
Board, by telegraphic order, granted the Employer's
request for review. Thereafter, the Petitioner filed
briefs, and the Employer filed a brief on review. The
Board has considered the entire record in these cases,
with respect to the issues under review, including the
briefs on review, and makes the following findings:
The Employer, a university located at Durham,
North Carolina, is a nonprofit corporation. Included in
its operations is the Medical Center, which employs
approximately 7,000 employees, of whom approxi-
mately 6,000 are hourly paid, nonacademic, and non-
professional employees. The Medical Center encom-
passes a hospital, private diagnostic clinics, a school of
medicine, and a school of nursing. -
The Petitioner sought to represent two separate units
of the Employer's employees: approximately 22 tele-
phone switchboard operators servicing the entire Uni-
versity and approximately 108 maintenance employees
in the Medical Center. The Petitioner urged that these
1 The name of the Employer appears as amended at the hearing.
maintenance employees be added to an existing certi-
fied unit consisting of the Employer's maintenance em-
ployees excluding those in the Medical Center.
The Employer contended that the petitioned-for unit
of maintenance employees is inappropriate because it is
not a functionally distinct or homogeneous group of
employees possessing a community of interest separate
and apart from other health care institution employees,
and that, at the very least, -a service and maintenance
unit, such as that found appropriate in Georgetown
University, 2 is required. Further, the Employer argued
that health care institution employees should not be
allowed to join with nonhealth care institution em-
ployees in a single bargaining unit. Similarly, with re-
spect to the unit of switchboard operators sought by the
Petitioner, the Employer contended that such unit is
inappropriate because the switchboard operators are
health care institution employees sharing a community
of interest with all hourly paid, nonacademic, non-
professional employees in the Medical Center.
The Regional Director denied the Petitioner's re-
quest for accretion of the maintenance employees, fmd-
ing that, due to the peculiar requirements of the Act
regarding employees of health care institutions, partic-
ularly the requirements of Section 8(g), the Medical
Center's maintenance employees cannot be integrated,
for bargaining purposes, with maintenance employees
not subject to the above-mentioned special provisions
of the Act. He found, however, that each of the peti-
tioned-for units is appropriate and he directed elections
therein.
We agree with the Regional Director's conclusions
that both the maintenance employees at the Medical
Center and the University's switchboard operators are
employees of the health care institution and as such are
subject to the special provisions of the Act relating to
such employees. However, we do not adopt his finding
that the addition of the Medical Center maintenance
employees to the existing maintenance unit is thereby
precluded. We further reject his findings that the unit
of switchboard operators sought is appropriate for the
purposes of collective bargaining.
The employees sought to be included in the mainte-
nance unit are carpenters, electricians, general utility
servicemen, insulation mechanics, laborers, mechanics,
painters, plasterer masons, plumbers, refrigeration and
air conditioning mechanics, sheet metal, workers,
steamfitters, trades helpers, and exterminators.
In a prior decision3 the Board found appropriate a
unit of maintenance personnel at the Duke University
campus at Durham, North Carolina, excluding the
Medical Center maintenance employees solely because
2 The President and Directors of Georgetown College for Georgetown
University, 200 NLRB 215 (1972).
3 Duke University, 200 NLRB 81 (1972)
217 NLRB No. 136
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2(2) of the National, Labor Relations Act at
that time precluded the Board from asserting jurisdic-
tion over nonprofit hospitals such as that involved
herein. Inasmuch as the 1974 health care amendments
to the Act authorize the Board to assert jurisdiction
over such hospitals, the basis for the exclusion of these
employees from an otherwise all-campus unit of main-
tenance employees has ceased to exist.4 In light of the
Board's previous unit determination, and as the Peti-
tioner is willing to add them to the existing university
maintenance unit, we shall afford these employees an
opportunity in a self-determination election to express
their views as to whether or not they desire to be added
to that unit. In so holding, we do not, at this time, reach
the question of whether a unit of maintenance person-
nel is appropriate for bargaining in the health care
industry.' Rather, we find that the particular facts in
this case justify our giving the maintenance employees
in the Medical Center an opportunity to vote on
whether they want to be added to the existing unit.'
The University's 22 switchboard operators sought to
be included in a separate unit operate from facilities
located on the first floor and in the basement of the
hospital.' The operators are responsible for operating
the telephone switchboards and handling voice and ra-
dio-paging in the hospital and Medical Center. More
than 50 percent of all incoming and outgoing calls
relate directly to the Medical Center, and the critical
paging function is almost exclusively confined to the
Medical Center. The switchboard operators are also
responsible for handling emergency calls by use of a
"Code 5" signal used within the Medical Center. Car-
diac arrest teams and other emergency functions in the
hospital are entirely dependent on the operators who
must, based upon the information they receive from the
emergency calls, utilize voice and radio paging to im-
mediately advise the appropriate personnel within the
Medical Center.
4 As we found in Duke University, supra, the physical plant department,
responsible for the maintenance of physical facilities which are not included
in the Medical Center, and the Medical Center engineering operations
department employ similar categories of employees Further, all come under
the jurisdiction and policies of the University's personnel department.
5 Members Kennedy and Penello do not leave for another day the issue
as to the appropriateness of a unit of maintenance personnel. In Shriners
Hospital for Crippled Children, 217 NLRB 806, issued this day, they
reached the conclusion that a maintenance unit is inappropriate.
6 The obligations of the parties under the special provisions of the Act
relating to employees of health care institutions are in no way diminished
by this determination
7 It is planned to move these facilities from the hospital to the Telecom
Building. The responsibilities and duties of the operators will remain un-
changed, however
On the basis of their separate supervision, location,
and job duties and their lack of immediate contact with
other employees, it is evident that the switchboard op-
erators, as the Regional Director found, possess a dis-
tinct community of interest! However, having care-
fully considered the legislative history surrounding
passage of the health care amendments, it is our conclu-
sion that finding a unit limited to switchboard opera-
tors at a health care institution is congressionally fore-
closed. If each such department grouping of employees
at a health care facility was, on similar bases, found to
be appropriate, a severe fragmentation of bargaining
units would necessarily be the result.
Accordingly, we find that the unit of switchboard
operators sought herein is not appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act, and we shall dismiss the peti-
tion in Case 11-RC-3954.
In Case 11-RC-3953, having found that the mainte-
nance personnel at the Employer's Medical Center
should be given the opportunity by a self-determination
election to express their desires with respect to being
included in the existing maintenance unit represented
by Petitioner, we shall direct an election in the follow-
ing voting group:
All utility servicemen, senior electricians, electri-
cians, trades helpers, senior carpenters, carpen-
ters, senior plaster masons, plaster masons, senior
painters, painters, senior refrigerating and air-con-
ditioning mechanics, refrigeration and air-condi-
tioning mechanics, senior plumbers, plumbers,
senior steamfitters, steamfitters, insulation me-
chanics, laborers, senior medical electricians ser-
vicemen, medical electricians servicemen, senior
sheetmetal mechanics, and sheetmetal mechanics
at the Employer's Medical Center, excluding all
supervisors, foremen, executive housekeepers,
housekeepers, fire, and safety coordinator, safety
instructor, manager of medical center parking and
traffic, parking supervisor, parking lot attendants,
bus drivers, professional employees, guards and
watchmen as defined in the Act.
8 Members Kennedy and Penello would not find either in the health care
industry or in any other industry that switchboard operators possess a dis-
tinct community of interest.
DUKE UNIVERSITY
If a majority of the employees in the above voting
group cast their votes for the Petitioner, they will be
taken to have indicated their desire to constitute a part
of tl e existing maintenance unit currently represented
by the Petitioner, and the Petitioner may bargain for
such employees as part of that unit. If f-a majority of
then vote against the Petitioner, they will be taken to
have indicated their desire to remain unrepresented,
801
and the Regional Director will issue a certification of
results of election to that effect.
ORDER
It is hereby ordered that the petition filed in Case
11-RC-3954 be, and it hereby is, dismissed.
[Direction of Election and Excelsior footnote omit-
ted from publication.]