Duke University

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 555 (N.L.R.B. 1992)

555
306 NLRB No. 101
DUKE UNIVERSITY
1 29 CFR Part 103, 54 FR No. 76 at 16347–16348, 284 NLRB
1580, 1596–1597 (1989). The Rule sets forth eight appropriate col-
lective-bargaining units in acute care hospitals. The term ‘‘acute care
hospital’’ is defined in the Rule.
2 Duke’s Employee Handbook describes the Medical Center as
comprising Duke North and South Hospitals, the School of Medi-
cine, the School of Nursing, the Private Diagnostic Clinics, and the
Sea Level Hospital.
3 Prior to 1978, bus service at Duke was provided by Duke Power
Co., an unrelated public utility. During the 1960s and 1970s, the
Medical Center operated a shuttle service to and from nearby park-
ing lots. In 1978, the University purchased two buses on an experi-
mental basis. In 1979, Duke formed the Transportation Department
to provide bus service to the entire University. The Duke Power con-
tract was formally terminated in 1987.
4 In its request for review the Employer did not renew its claim,
made before the Regional Director, that if the drivers are not health
care employees the only appropriate unit would be a unit of all serv-
ice employees employed by the Employer.
5 There, the employer was exclusively engaged in the provision of
health care services, medical education, and medical research, the
same individuals who comprised the board of governors of the
health center also made up the college’s board of trustees, the med-
ical teaching process took place throughout the employer’s entire
Continued
Duke University and Amalgamated Transit Union,
Local 1328, Petitioner. Case 11–RC–5779
February 28, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On July 30, 1991, the Regional Director for Region
11 issued a Decision and Direction of Election in
which he found that full-time busdrivers on the Duke
University campus are not health care employees, and
that the drivers comprise a separate and appropriate
collective-bargaining unit. The Employer filed a timely
request for review. By order dated October 3, 1991,
the Board granted the Employer’s request for review.
The election was conducted as scheduled on August
29, 1991, and the ballots were impounded. The Em-
ployer subsequently filed a brief on review.
The Board has carefully considered the record, in-
cluding the brief on review, and makes the following
findings.
The issue in the case is whether a unit of full-time
busdrivers at Duke University, who service the entire
University, including an on-campus acute care hospital,
is appropriate, or whether the drivers must be included
in a hospital nonprofessional employee unit under the
Board’s Final Rule on collective-bargaining units in
the health care industry (the Rule).1 As stated, the Re-
gional Director found that the drivers are not health
care employees. We agree.
The Employer is a private nonprofit educational in-
stitution with its main campus located at Durham,
North Carolina. Included in its operations is the Med-
ical Center.2 The parties stipulated that Duke Medical
Center is an acute care hospital facility. Approximately
12,500 of the Employer’s 19,000 employees work in or
around the Medical Center.
The Duke University Transportation Department,
designated as Duke Transit, provides bus transportation
for students, employees, and visitors to the campus.3
Bus stops are located throughout the Employer’s East,
West, and Central campus sections, as well as at sev-
eral Duke parking lots on or adjacent to the campus
where riders park their cars and ride to their respective
destinations. There are two distinct bus schedules: a 7-
month school year schedule which is primarily driven
by part-time student drivers who, the parties agree,
should not be included in any appropriate unit, and a
12-month year-round schedule primarily driven by the
full-time drivers. Duke Transit also provides charter
bus service for some events. Of the current six full-
time bus routes, three run from parking lots restricted
to hospital employees. Duke Transit directly employs
about 14 full-time drivers, and plans to hire several
more.
The busdrivers have no history of collective bar-
gaining. They are separately hired and supervised by
Transportation Department supervisors, are physically
headquartered in the transit building, which is actually
located off the Duke University campus, have little or
no interaction with other nonprofessional employees of
the Employer, and are required to possess a special
Class ‘‘A’’ drivers license. They also wear distinctive
uniforms, routinely lunch together in the transit build-
ing, and are not allowed to converse with passengers
on their buses. Based on the distinct community of in-
terest shared by the full-time drivers, the Regional Di-
rector found that they comprise a separate and appro-
priate collective-bargaining unit.4
The Regional Director rejected the Employer’s argu-
ment that the drivers are health care employees, par-
ticularly noting that the drivers are directly employed
by the campus Transportation Department and are only
involved with Medical Center employees to the extent
that those employees ride on buses. He found Duke
University, 217 NLRB 799 (1975), and Kirksville Col-
lege, 274 NLRB 794 (1985), which the Employer con-
tends compel a finding that the drivers are health care
employees, not to be controlling. The Employer con-
tends that the Regional Director departed from Board
precedent in finding those cases inapposite, and that
his decision results in the undue fragmentation of units
in an acute care hospital.
In Kirksville College, supra, the Board found a med-
ical college and its health center to be so highly inte-
grated that it could find no rational basis upon which
to distinguish ‘‘college’’ from ‘‘hospital’’ employees,
and declined to find units limited to the employer’s
health center appropriate.5 The Board noted, however,
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complex, faculty offices were often located adjacent to patient care
areas, most physicians on the faculty treated patients at the health
center, and the medical director of the health center was also the di-
rector of medical education.
6 The record contains no evidence regarding the budgeting of the
University and Medical Center, or how various portions of the Em-
ployer’s operations are funded. Nor do we know how the Medical
Center relates operationally to the University, other than through the
Employer’s assertions that much of the University’s operations sup-
port the Medical Center. We do note in this regard that, while the
Employer’s associate vice president for human resources testified
that he had caused a chart to be created showing the percent of the
budget of various units of the University that are supported by the
Medical Center, and most of those percentages exceeded 50 percent,
the witness subsequently had to correct himself when his counsel
pointed out that the percentages did not represent budgets at all but
rather percentages of total efforts expended in support of the Med-
ical Center.
7 Indeed, even whether the Employer’s Medical Center is itself so
integrated that all of its component parts would constitute an acute
care hospital under the Rule, a question not before us, is undeter-
mined.
that it was not holding that every medical school is a
health care institution, and that only where the func-
tions, administration, and work force of a medical
school and its affiliated hospital were so highly inte-
grated that separating them for representation purposes
would be impractical and contrary to policy consider-
ations in the health care field would it find a medical
school to be a health care institution within the mean-
ing of the Act. The Employer here attempts to extend
the holding of Kirksville College. It argues that Duke’s
Medical Center is so highly integrated with the rest of
the University that university employees upon whom
the hospital depends—in this proceeding, Duke’s bus-
drivers—must be treated as health care workers. Thus,
it claims that the Medical Center completely depends
on the drivers to bring its employees to work from the
nearby parking lots, so that it could not provide patient
care without the drivers. Accordingly, the Employer
contends that the Regional Director erred in distin-
guishing Kirksville College on the basis that Kirksville
involved only medical education and the provision of
medical services so that the functional integration of
these related activities at Kirksville College could not
be equated with the functional integration at Duke, a
more diversified institution.
The Employer points to the fact that Duke operates
under a single corporate charter and has a centralized
payroll and accounting system for the entire Univer-
sity.6 The Medical Center is entirely dependent upon
many of the University’s common functions, the Em-
ployer states, citing purchasing, employment, employee
relations, public safety, heating and transportation. This
dependency, the Employer argues, renders the Medical
Center so fully integrated with the rest of the Univer-
sity that essentially the entire facility, including the
employees working in Transportation Department,
should be regarded as a health care institution within
the meaning of the Act.
The Employer specifically asserts that the many em-
ployees who spend 50 percent of their time in support
of the Medical Center, including the full-time bus-
drivers who service both the ‘‘Campus’’ and ‘‘Medical
Center,’’ should be deemed health care workers. The
logical extension of its argument would, however,
cover all university employees who the Employer as-
serts exert more than half their efforts in supporting
the Medical Center. Under the Employer’s analysis,
Duke employees employed as food workers at a Duke
cafeteria located across campus from the Medical Cen-
ter would be health care employees if they devoted
over 50 percent of their time to feeding and serving
Medical Center employees. We find this analysis to fly
in the face of common sense. Employees of a com-
monly used Duke University cafeteria are not employ-
ees of Duke’s acute care hospital merely because most
of the cafeteria’s customers are doctors, nurses, or
other hospital employees.
We decline to extend the holding of Kirksville Col-
lege to find the drivers in Duke’s Transportation De-
partment to be health care employees simply because
they drive Medical Center employees, among others,
on their campus routes. According to Duke’s Em-
ployee Handbook, published in June 1990, there are 55
departments and programs at Duke offering a total of
25 different types of degrees to approximately 6000
undergraduate students and 3700 graduate and profes-
sional students. Only about 5 percent of the student
population was estimated by one employer witness to
be clinical/medical; another testified that Duke has ap-
proximately 400 medical and 65–70 nursing students,
and that 750 or so postgraduate physician trainees
whose status may be either student or employee are
paid salaries by the University. It is therefore apparent
that Duke, unlike Kirksville College—whose sole func-
tion of providing health care service and education was
wholly integrated—is, as found by the Regional Direc-
tor, a multidisciplinary institution with many oper-
ations unrelated to its health care function. Hence, its
functional integration with the Medical Center is not
analogous to that at Kirksville College. At Kirksville
College patient care was interwoven throughout the in-
stitution; most physicians on the faculty treated pa-
tients at the health center, and the medical teaching
process took place throughout the entire complex. That
has not been demonstrated to be the case at Duke.7 We
find that the drivers’ role of driving buses carrying
hospital and other university employees around campus
is not so functionally integrated with the hospital’s op-
eration that Duke’s Transportation Department is a
health care institution and the drivers health care em-
ployees.
Nor do we find policy considerations such as a con-
cern for the potential disruption of health care services
557DUKE UNIVERSITY
8 Special provisions of the Act applicable to health care institutions
relate to ‘‘patient care situations’’ and not to ‘‘purely administrative
health care connected facilities.’’ See, e.g., Damon Medical Labora-
tory, 234 NLRB 333, 334 fn. 1 (1978), citing the legislative history
of the 1974 health care amendments.
9 Id. at 800.
10 The related cases which the Employer cites all predate the 1974
health care amendments which extended Board jurisdiction over non-
profit hospitals and other health care institutions: Duke University,
194 NLRB 236 (1971); Duke University, 200 NLRB 81 (1972);
Georgetown University, 200 NLRB 215 (1972). The Board then ex-
cluded from bargaining units employees or employee classifications
if more than 50 percent of the worktime of employees in a given
classification were spent in the hospitals, because the Board had no
jurisdiction over nonprofit hospitals at that time. Since the passage
of the 1974 health care amendments, there is no continuing need for
a breakdown of work duties by percentage in order to determine the
Board’s jurisdiction.
in the event of a work stoppage to weigh in favor of
treating the drivers as health care employees. The driv-
ers do not provide patient care, and they perform a
function which could easily be replaced in the event of
a work stoppage.8 The Employer’s vice chancellor for
administration and finance of the Medical Center testi-
fied that the Employer would have to fashion some
sort of contingency plan with respect to bus transport,
as it already has with respect to housekeeping and
laundry workers in the hospital who are represented by
another union. He speculated that the contingency plan
might well involve using the Durham city bus system
as a backup measure, and admitted that he did not
think that a stoppage of the bus system would bring
the patient care delivery system of Duke Medical Cen-
ter to its knees. Accordingly, we find no policy consid-
erations weighing against separating the busdrivers
from the Medical Center employees.
As stated, the Employer further claims that the
Board’s Decision in Duke University, 217 NLRB 799
(1975), requires that the busdrivers be found to be
health care workers. At issue in that case was the ap-
propriateness of two petitioned-for units of employees
in the Medical Center: approximately 22 telephone
switchboard operators servicing the entire University,
and approximately 108 maintenance employees in the
Medical Center. The Employer there contended that
the unit of switchboard operators was inappropriate be-
cause the operators were health care institution em-
ployees sharing a community of interest with non-
professional employees in the Medical Center. The op-
erators were located in the hospital, but it was noted
in the decision that the Employer planned to move the
operators’ facilities to the Telecom Building with no
change in the responsibilities and duties of the opera-
tors. The Board stated that it agreed with the Regional
Director’s conclusion that the switchboard operators
were employees of the health care institution, and
found that a unit limited to the operators was congres-
sionally foreclosed because of the severe fragmentation
of bargaining units that would result. In so concluding,
the Board stated:9
The operators are responsible for operating the
telephone switchboards and handling voice and
radio paging in the hospital and Medical Center.
More than 50 percent of all incoming and out-
going calls relate directly to the Medical Center,
and the critical paging function is almost exclu-
sively 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. Cardiac ar-
rest teams and other emergency functions in the
hospital are entirely dependent on the operators
who must, based upon the information they re-
ceive from the emergency calls, utilize voice and
radio paging to immediately advise the appro-
priate personnel within the Medical Center.
The Regional Director found Duke University, supra,
not to be controlling in this case because the telephone
switchboard operators were physically based in the
Medical Center and, more importantly, were directly
involved in the provision of medical care. The Em-
ployer argues that the full-time busdrivers spend a ma-
jority of their time servicing the Medical Center, and
that the Regional Director ignored this evidence and
refused to apply a 50-percent rule as enunciated by the
Board in Duke University, supra, and related cases, to
find that the drivers are health care workers.10 Board
precedent requires that an employee’s health care sta-
tus be determined by looking not at the employee’s job
duties or integration with other hospital personnel, the
Employer claims, but rather at the amount of time em-
ployees spend on health care related activities. Further,
the Employer asserts, the Board found that the switch-
board operators were health care employees solely be-
cause the operators, as a group, spent over 50 percent
of their time handling calls for the Medical Center.
It is clear from the Board’s above-quoted analysis in
Duke University that the operators’ spending a major-
ity of their time handling calls for the Medical Center
was but one of a number of factors cited by the Board
in finding that a unit limited to switchboard operators
was not appropriate. We agree with the Regional Di-
rector that more important was the operators’ intimate
involvement in the provision of medical care. They
were responsible for the critical paging function within
the hospital, for handling emergency calls, and for sig-
naling cardiac arrest teams and other emergency per-
sonnel who were entirely dependent upon the operators
to alert them to emergency situations. Contrary to the
Employer’s assertions, and regardless of whether we
would reach the same result now, the telephone opera-
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 We do agree with the Employer that the Regional Director im-
properly relied on the operators’ physical location in the Medical
Center as a basis for distinguishing Duke University, supra. As
noted, the Board was aware when deciding that case that the Em-
ployer planned to move the operators from the hospital, so their lo-
cation in the hospital obviously was not a basis for the decision. In
addition, when the representation of the operators was again consid-
ered in a subsequent proceeding limited to the Medical Center, the
operators were actually located in the Telecom Building. Duke Uni-
versity, 226 NLRB 470 (1976). The petitioner there sought to rep-
resent all Medical Center service employees, and the Board excluded
the operators from the service employee unit as office clericals.
12 To the extent that Duke University, 217 NLRB 799 (1975), and
related cases may suggest the appropriateness of such an inflexible,
mathematical approach, regardless of other circumstances, those
cases are overruled.
13 Although the Employer asserts that over 50 percent of the bus-
drivers’ service is devoted to the Medical Center, we note that this
assertion is not based on any objective data, such as a statistical sur-
vey of ridership.
tors were much more directly involved in medical care
than the busdrivers here.11
We conclude that the determination of who is a
health care employee in a university setting, where the
institution contains both health care and health related
facilities and traditional nonhealth care academic oper-
ations, requires a reasoned analysis of all of the cir-
cumstances of the case. Although we recognize that it
may not always be easy to draw the line in making
such a determination, we are unwilling to decide this
issue on the basis of a flat numerical figure, without
regard to other factors.12 In making such an analysis
here, we note first that the busdrivers are not directly
employed by a health care institution. The drivers are
separately hired and supervised by Transportation De-
partment supervisors, are separately headquartered in a
building off the campus and away from the hospital fa-
cilities, and have very little interaction with other Duke
University employees. Their only connection to the
Medical Center is that Medical Center employees and
patients ride on buses.13 In these circumstances, we
agree with the Regional Director that the full-time bus-
drivers are not health care employees. We also agree,
based on all the factors previously noted and relied on
by him, that they constitute a separate and appropriate
bargaining unit.
Inasmuch as the Board’s Rule on collective-bar-
gaining units in the health care industry applies by its
terms to acute care hospitals, and we find the drivers
are not employees of an acute care hospital, their rep-
resentational interests are not affected by the Rule. Ac-
cordingly, the Regional Director’s Decision and Direc-
tion of Election is affirmed.
ORDER
It is ordered that Case 11–RC–5779 is remanded to
the Regional Director for further action consistent with
this decision.