Greater Bakersfield Memorial Hospital

National Labor Relations Board - Board DecisionsNov 17, 1976

226 N.L.R.B. 971 (N.L.R.B. 1976)

GREATER BAKERSFIELD MEMORIAL HOSP. Greater Bakersfield Memorial Hospital and Hospital & Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, Peti- tioner, and International Union of Operating Engi- neers, Local No. 501 , AFL-CIO, Petitioner. Cases 31-RC-3092 and 31-RC-3095 November 17, 1976 DECISION ON REVIEW AND ORDER As explained more fully below, the Regional Di- rector for Region 31, on May 21, 1975, issued a Deci- sion and Direction of Elections and Order Dismiss- ing Petition in which he made certain unit findings and directed elections in two units in the instant con- solidated cases. Thereafter, on May 31, 1975, the Pe- titioner in Case 31-RC-3095, International Union of Operating Engineers, Local No. 501, AFL-CIO (hereinafter Local 501), filed a request for review, which the Board granted on June 24, 1975. By way of background, on February 2, 1975, Hos- pital & Service Employees Union, Local 399, Service Employees International Union, AFL-CIO (herein- after Local 399), filed a petition (Case 31-RC-3092) requesting an election in a unit consisting of: All employees of the Employer at its facility lo- cated at 420-34th Street, Bakersfield, California, excluding registered nurses, doctors, profession- al employees, confidential employees, guards, and supervisors as defined in the Act. On February 6, 1975, Local 501 filed its petition (Case 31-RC-3095) requesting an election in a unit consisting of: All Engineering Department employees, includ- ing, but not limited to, all Operating Engineers Control Clerks excluding all other employees in- cluding all housekeeping, laundry, medical, nursing, dietary, professional, office clerical, guards and supervisory employees as defined in the Act, as amended. On February 13, 1975, the Regional Director or- dered that the petitions be consolidated for hearing, which was held on various dates in March. At the hearing, the Hearing Officer granted Local 399's mo- tion to amend and divide its petition into the follow- ing two separate units: Voting Unit A: All the employees of the Em- ployer at its facility located at 420-34th Street, Bakersfield, California; excluding registered nurses, physicians, professional employees, con- fidential employees, office clerical employees, guards and supervisors as defined in the Act. 971 The B unit would include all office clerical em- ployees, including but not limited to PBX opera- tors, data processing employees, medical records employees, and admitting office employees. Ex- cluded would be the employees described in the A unit and guards and supervisors as defined in the Act. Both Local 399 and Local 501 declined to state whether they would be willing to participate in an election directed in any units other than the units described in their respective petitions. The Employer agreed that the units requested by Local 399 were appropriate, but opposed the unit re- quested by Local 501. On May 21, 1975, the Regional Director issued the above-mentioned decision in which he found that voting units A and B, supra, constituted units appro- priate for collective-bargaining purposes, and he di- rected elections in these separate units. The Regional Director also ordered that the petition filed by Local 501, in Case 31-RC-3095, be dismissed because the requested maintenance and engineering maintenance department employees were neither a true craft group nor an appropriate departmental unit with a "community of interest separate and unique from that of the other employees." Although, as the Re- gional Director found, Local 501 has represented sta- tionary engineers and maintenance department em- ployees at numerous hospitals, the Regional Director further reasoned that granting Local 501's request for such a unit in the instant case would be contrary to our decision in Shriners Hospitals for Crippled Chil- dren, 217 NLRB 806 (1975). Pursuant to the provisions of Section 102.67 of the Board's Rules and Regulations, Local 501 on May 30, 1975, filed a request for review of the Regional Director's decision.' On June 24, 1975, the Board notified the parties that a majority of the Board had decided to grant Local 501's request for review and further ordered that the election scheduled in voting unit A be stayed pending decision on review.' On the same day, June 24, Local 399 filed a mo- tion requesting that the Board proceed with the elec- tion scheduled in voting units A and B and impound the ballots pending a decision on Local 501's request for review. In the alternative, Local 399 moved that 1 Local 501 also filed a motion to disqualify Member Penello and former Member Kennedy from participating in the review of the Regional Director's decision because of their respective positions in previous cases involving bargaining units in the health care industry 2 The Board also dismissed the motion to disqualify Members Kennedy and Penello, supra, fn I, because the grounds stated in support of the mo- tion were not sufficient "for disqualification in this or similar proceedings " With regard to the request for review, Member Penello and former Member Kennedy indicated that they would deny review 226 NLRB No. 143 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the ballots of the maintenance and engineering de- partment employees be separated as challenged bal- lots. On July 23, 1975, the Board notified the parties that it had granted Local 399's motion to conduct the election in voting unit A and impound the ballots pending decision on Local 50l's request for review. Furthermore, the Board directed the Regional Direc- tor to proceed with the election in voting unit A and challenge and segregate the ballots of all employees included in the unit sought by Local 501, and to im- pound all ballots pending a decision on the request for review. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The Employer, located in Bakersfield, California, is a nonprofit California corporation engaged in the operation of an acute care hospital. The hospital, which contains 206 beds and 51 bassinets, operates on a 7-day-a-week, 24-hour basis and in its 15 de- partments employs some 450 nonsupervisory and nonmanagerial persons working in approximately 100 different job classifications. As noted above, Local 501, in Case 31-RC-3095, seeks a unit limited to employees in the maintenance and engineering department.' Within the mainte- nance department there are three employees classi- fied as maintenance engineer II, two employees clas- sified as maintenance engineer I, one groundskeeper, one grounds helper, one control clerk, three employ- ees classified as engineer II, one operating engineer I, and one general engineer. At present there are no employees in the operating engineer III, maintenance engineer III, and maintenance engineer leadman classifications. Thus, Local 501 seeks to represent some 13 maintenance and engineering employees working in I of its 14 or 15 departments. Generally, the maintenance-engineering depart- ment is responsible for maintaining the Employer's heating, cooling, and electrical systems and the grounds, and for performing routine and some pre- ventative maintenance throughout the hospital. The boilerroom, or engineering plant, containing several high pressure boilers, two automated electrical gener- ators, a vacuum system, air pressure easers, the water 3 The Employer asserts that the maintenance and engineering employees work in separate departments But, aside from the fact that these employees have different codes for payroll purposes, there is little evidence to support the Employer's contention . Indeed, its own evidence reveals that both main- tenance and engineenng employees have common front-line supervisors and, with the possible exception of the two groundskeepers and one station- ary engineer on duty in the engineering plant infra, maintenance and engi- neenng employees work together throughout the hospital Therefore, we find that the employees in the requested unit constitute one department, hereinafter referred to as the maintenance -engineering or, simply, mainte- nance department distribution system, and a small workshop, is located at the rear of the hospital. The area is restricted to authorized personnel only. It appears that at least one operating engineer must be present at all times in the boilerroom. Most of the remaining maintenance- engineering department employees-referred to as "the pool"-perform a variety of tasks pursuant to specific requests or requisitions, usually relayed by the maintenance control clerk, or, in the case of pre- ventative maintenance, pursuant to a scheduled pro- gram. Most repair work is performed on the spot throughout the hospital. As stated, these mainte- nance and operating engineering employees are called upon to perform a variety of jobs including painting, carpentry, tilesetting, grouting, plastering, welding, and electrical work on the air-conditioning, heating, refrigeration, sterilization, oxygen, and laun- dry equipment. As a matter of course these employ- ees also fix squeaky doors, replace lightbulbs and broken window panes, build shelving, repair locks, install floor, ceiling, and wall tiles, empty trash, re- move scrap piles, move furniture and beds, mop up and sweep spillages, unload equipment and supplies, and drive hospital vehicles. The groundskeeper and grounds helper, in addi- tion to their normal duties of maintaining the hospital's grounds, occasionally move scrap piles, re- pair holes in the parking lot, and, during inclement weather, clean equipment inside the hospital. Finally, the engineering control clerk normally re- ceives in-person or telephone requests for repairs, re- lays messages, delivers reports, and, on occasion, runs errands. It appears that more complicated and major main- tenance and engineering work is routinely handled by outside contractors. Examples of such work in- clude maintenance and repair of numerous pieces of medical and office machines and equipment, truck and automobile repairs, finish carpentry, elevator re- pairs, glass door and window repairs, upper floor window cleaning, landscaping, tree trimming, and fence work, major boiler repairs, and virtually all ma- jor construction work. All of the maintenance department employees are directly supervised by Assistant Chief Engineer Paul Welch, who reports directly to Marion Beck, the Em- ployer's chief engineer and plant superintendent. Neither Welch nor Beck supervises any employees outside the department. On the other hand, there is some evidence that supervisers in other departments have on several rare occasions approached and re- quested that maintenance employees in the pool per- form routine work. Generally, however, all mainte- nance work is first requisitioned through the control clerk, and other department heads have been re- GREATER BAKERSFIELD MEMORIAL HOSP. 973 quested by Beck to follow the normal procedure. With regard to skills, the maintenance-engineering department has no job classification which requires a state license or journeyman status, and the Employer conducts no apprenticeship or formal training pro- gram. The Employer has no educational level re- quirement beyond mere literacy, and, if required, the only training new employees receive is on-the-job training. The Regional Director found that, with the possi- ble exception of one employee, none of the mainte- nance-engineering department employees is a li- censed journeyman. The record shows that within the requested unit there is one certified journeyman, a welder. However, there is further testimony that two operating engineers and two maintenance engi- neers are "qualified" forjourneyman status, although none of the four employees has been certified. More- over, it is not clear whether and to what extent these allegedly qualified journeymen practice their re- spective trades and crafts. It appears that there is considerable interchange of employees between jobs in the maintenance department. Finally, with regard to the engineering control clerk, the record shows that the job description re- quires that the incumbent have an associate arts de- gree. However, the present clerk has no such degree. The record shows that the Employer's administra- tor and associate and assistant administrators have overall responsibility for the Employer's personnel and labor relations policies. Briefly, no department head, such as Chief Engineer and Plant Superinten- dent Beck, may hire, promote, transfer, or, absent a serious offense, discharge any employee without the prior approval of the Employer's administrators. All personnel files for the Employer's 450 employees are kept in a central office which also handles requests for new employees, job transfers, and orientation for new employees. With regard to job transfers, the record shows that 5 of the 13 employees in the maintenance department were transferred from the Employer's other depart- ments. Most of these transfers were from the house- keeping department where the employees in question worked as janitors or custodians. Thus, almost 40 percent of the present maintenance complement transferred from other departments. Also, in at least one instance, an employee transferred from the maintenance department to another department, medical records. The personnel department also administers a com- mon benefits plan which covers vacation, sick leave, holidays, medical and life insurance, and retirement. In addition, all employees are entitled to discounts on meal tickets, pharmaceutical products, and vari- ous medical services provided by the Employer. Moreover, all employees share the same parking fa- cilities and are eligible to participate in the same Em- ployer-sponsored clubs and social functions. All employees are subject to the same overall hour- ly wage schedule which consists of over 100 job clas- sifications placed in 36 different ranges. Generally, the maintenance-engineering employees are classi- fied in wage ranges in the upper half of the schedule. Thus, the lowest paid employee in the requested unit, the groundskeeper, is paid at a rate higher than ap- proximately half of the Employer's other 450 em- ployees. Also, the second lowest paid maintenance employee, the control clerk, is paid at a rate higher than some supervisors in other departments. Em- ployees in the maintenance-engineering department use timesheets, located in their department, to record their hours. However, employees in other depart- ments use the same sheets. All employees are subject to the same overtime policies. Generally, all of the employees have the same working shifts, and meal and rest periods, although the maintenance employ- ees take their lunchbreak at a time different from other employees. Moreover, the maintenance em- ployees generally eat together in the engineering plant which also contains their lockers. As noted, the maintenance employees have the same length break periods, but because of the nature of their work they may not take their coffeebreaks in groups larger than two. Finally, the maintenance employees must pur- chase their own tool pouches, at a cost of about $150, but, like employees in at least one other department, their uniforms are paid for in full or otherwise fur- nished by the Employer. Based upon the foregoing, the Regional Director decided that the maintenance department employees "do not have the common bond of a highly skilled craft [group]" to warrant inclusion in a separate unit. We agree. It appears from the foregoing that at least a few employees are skilled at performing work at the journeyman level. But most of the employees, espe- cially those within the maintenance pool, appear to have no particular craft or trade skills, and are gener- ally responsible for mere routine maintenance work. It appears that at best only I of the 13 employees is a licensed journeyman, and while 4 other employees may qualify for such status, none has been licensed or certified as a journeyman. None of the employees is certified or licensed by the State of California. Fur- thermore, the Employer does not require that em- ployees hired into the department possess any partic- ular craft or trade skill although, of course, a prospective employee with such qualifications or job- related experience would be given special consider- ation. But the fact remains that such skills are neither 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required for employment, nor, as far as the record shows, are they practiced by incumbent employees in the maintenance department. And such skills as are acquired appear to result from informal on-the-job training. In this regard, it is noteworthy that 5 of the 13 employees transferred into the department with- out any specialized trade or craft experience. Finally, it does not appear that most of these em- ployees, especially those in the maintenance pool, have occasion to practice any particular trade or craft skill. Rather it appears that there is consider- able interchange of employees within the department on jobs performed by the pool. We have also carefully considered Local 501's con- tention that it represents numerous employees in maintenance-engineering units in the State of Cali- fornia. But the exhibits introduced in support of this contention clearly fail to establish any pattern of bar- gaining history for employees occupying job classifi- cations similar to those in the instant case. Indeed, in most instances, Local 501 appears to represent only stationary engineers, and in no instance does it repre- sent a group as diverse as the requested unit. Also, for reasons stated above, we find that the employees in the requested unit do not possess a community of interest separate and unique from other employees. For, as shown, these employees are covered by essentially the same benefits, wage poli- cies, and working conditions as are other employees. To be sure, there are some differences such as the fact that these employees are separately supervised. But these circumstances are outweighed by the fact that these maintenance employees, who, on the whole, possess no special identifiable skills, often work closely with other employees throughout the hospital on routine matters, leaving the more compli- cated work for others to handle. Also, it is significant that such a high percentage of the present comple- ment of maintenance employees have transferred from other departments. In sum, we find that the requested unit is inappro- priate because it lacks true craft status and, further, because the employees within the requested unit do not share a distinct community of interest separate from the Employer's other 450 employees 4 See Riverside Methodist Hospital, 223 NLRB 1084 (1976), and St Joseph Hospital, 224 NLRB 270 (1976) In his separate concurring opinion in St Vincent's Hospital, 223 NLRB 638 (1976), Member Penello clarified his position , as taken in Shriners Hos- pitals for Crippled Children, 217 NLRB 806 (1975), on the appropriateness 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 maintenance unit may be appropriate when , viewed in light of all the criteria traditionally considered in determining the appropriateness of maintenance units gener- ally, its establishment does not conflict with the congressional mandate against proliferation of bargaining units in the health care industry This standard, which is a more rigid one than is applied in other industries, can Accordingly, we shall order that the instant peti- tion, in Case 31-RC-3095, be dismissed, and direct the Regional Director to open the ballots cast by maintenance employees in the election in voting unit A, if necessary to determine the outcome of that elec- tion. ORDER It is hereby ordered that the petition in Case 31- RC-3095 be, and it hereby is, dismissed. It is further ordered that, if necessary to determine the outcome of the election held in voting unit A, the challenged ballots cast by maintenance employees shall be opened and tallied. CHAIRMAN MURPHY and MEMBER FANNING, dissent- ing: We do not believe that the unit sought by Local 501 in this case is so materially distinguishable from those sought in Jewish Hospital Association of Cincin- nati d/b/a Jewish Hospital of Cincinnati 5 and St. Jo- seph Hospital' as to justify finding the requested maintenance department unit inappropriate and, for the reasons stated in Member Fanning's dissenting opinion in the former case and in our joint dissent in the latter case, we would not dismiss Local 50l's peti- tion. The nucleus of the maintenance and engineering department unit sought by Local 501 constitutes a well-defined group of skilled individuals, separately supervised and separately located in an area of the hospital which is restricted to departmental employ- ees. No matter how the majority attempt to minimize the skills of the employees at the core of the unit sought here, it is clear that the Employer itself, through the significantly higher wages given employ- ees of the department,' recognizes those skills. It is, of course, not our understanding of the function of a hospital's engineering plant to perform major con- struction work but, rather, as in the case of this hos- pital, it is to maintain highly sophisticated and poten- tially dangerous equipment without which the be met, in Member Penello's view, when the unit sought, unlike the situation in Shriners, is composed of licensed craftsmen engaged in traditional craft work , which is performed in a separate and distinct location apart from other employees in the health care facility Normally, such employees do not perform other services throughout the health care facility, as was the case in Shriners, and there is, at most, minimal transfer or interchange to and from the craft unit In the instant case , Member Penello agrees with his colleagues that the unit sought-of all hospital maintenance employees-is inappropriate since it does not satisfy the standard set forth by him for finding a craft maintenance unit to be appropriate '223 NLRB 614 (1976) 6 224 NLRB 270 (1976) 7 The engineering and mainteance employees encompassed by Local 501's petition are, with but two exceptions, paid more than any service employee to whom they are being added GREATER BAKERSFIELD MEMORIAL HOSP 975 hospital could not function. In this case as indicated, no other employees have access to the engineering plant. A qualified employee of the department must be present at all times and within hearing range of the high pressure systems. Employees of this depart- ment have exclusive responsibility for maintenance of water , electrical , heating , and air-conditioning sys- tems . They wear distinctive uniforms , have separate locker areas and, when one recalls repeated refer- ences appearing in numerous postamendment unit determination cases to the purported relevance of employees "eating in the same cafeteria ," it is inter- esting to note that these employees even eat in a sep- arate area. We do not consider those factors upon which our colleagues rely in dismissing this petition , most nota- bly the lack of licensing of engineering employees and the degree of transfer from the service unit to the engineering unit,' to be of such significance as to overcome the test of American Cyanamid Company, 131 NLRB 909 (1961), which remains, if the majority opinions in the maintenance unit cases orally argued before the Board are taken at their word, the lead case governing issues of this sort. Under that case, a maintenance unit is an appropriate unit where the operations of the employer are not so integrated as to merge the identity of the maintenance function with the nonmaintenance and the maintenance employees constitute a readily identifiable group. The facts of this case sufficiently establish, in our judgment, the separate identity of the maintenance and engineering department and, therefore, we dissent from the dis- missal of the petition for their representation. 8 Although 5 of the 13 employees involved here are transfers into the unit, there have been no transfers for the 2 years preceding the hearing in this case, the majority of the transfers have been into the nonskilled jobs, e g , groundskeeper, and any progressions within the unit were accomplished by virtue of on-the-job training or special courses