Kaiser Foundation Hospitals

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 933 (N.L.R.B. 1993)

933
312 NLRB No. 139
KAISER FOUNDATION HOSPITALS
1 Members Oviatt, Raudabaugh, and Devaney. Members Oviatt and
Raudabaugh also denied the Employer’s request for oral argument.
Member Devaney dissented in part as he would have granted the re-
quest to hold oral argument.
2 29 CFR Part 103.30, 54 Fed.Reg. 16336, 284 NLRB 1580
(1989). The Rule was approved by the Supreme Court in American
Hospital Assn. v. NLRB, 111 S.Ct. 1539 (1991).
3 According to the Employer, the Intervenor represented some Riv-
erside employees prior to the opening of the Riverside Hospital
when the Riverside medical facilities reported to Fontana. The Em-
ployer states that the collective-bargaining agreement was continued
at Riverside, rather than being newly extended to the employees
there.
4 Sec. 103.30(c) of the Rule states:
Where there are existing non-conforming units in acute care
hospitals, and a petition for additional units is filed pursuant to
section 9(c)(1)(A)(i) or 9(c)(1)(B), the Board shall find appro-
priate only units which comport, insofar as practicable, with the
appropriate unit set forth in paragraph (a) of this section.
Kaiser Foundation Hospitals/Southern California
Permanente Medical Group, and Kaiser Foun-
dation Health Plan, Inc. and Independent
Brotherhood of Skilled Hospital Maintenance
Workers, Petitioner. Case 31–RC–6992
September 30, 1993
DECISION ON REVIEW AND ORDER
CHAIRMAN STEPHENS AND MEMBERS DEVANEY
AND RAUDABAUGH
The issue in this case involves unit determinations
in acute care hospitals where there are preexisting units
that do not conform to those set forth in the National
Labor Relations Board’s Final Rule on collective-bar-
gaining units in the health care industry. The specific
question presented is whether the Regional Director
properly directed an election in a unit of skilled main-
tenance employees, one of the eight appropriate units
set forth in the Rule, where the petitioned-for employ-
ees are already represented in a larger, preexisting,
nonconforming unit.
On December 1, 1992, the Regional Director for Re-
gion 31 issued a Decision and Direction of Election in
the above-entitled matter in which he directed an elec-
tion in a unit of skilled maintenance employees em-
ployed by the Employer at its acute care hospitals.
Thereafter, in accordance with Section 102.67(b) of the
National Labor Relations Board’s Rules and Regula-
tions, the Employer and the Intervenor, the United
Steelworkers of America, AFL–CIO, filed timely re-
quests for review of the Regional Director’s decision.
On January 7, 1993, the Board granted the Employer’s
and the Intervenor’s requests for review and granted
the Intervenor’s request to stay the election.1 The Em-
ployer and the Intervenor filed briefs on review.
I.
The National Labor Relations Board has considered
the entire record in this case and, for the reasons set
forth below, has decided to reverse the Regional Direc-
tor’s decision and dismiss the petition.
The relevant facts are undisputed. The Employer op-
erates two medical centers in Fontana and Riverside,
California, respectively, and auxiliary clinics in sur-
rounding counties, which the parties have stipulated to
be acute care hospitals within the definition under the
Board’s Final Rule on collective-bargaining units in
the health care industry.2 The Intervenor currently rep-
resents a unit consisting of approximately 2800 non-
professional employees, including clericals, technicals,
patient-care employees and service and maintenance
employees. The collective-bargaining agreement also
excludes small pockets of miscellaneous groups of em-
ployees, including opticians, administrative staffing
clerk, medical research secretary, x-ray technicians,
and orthopedic technicians. The Employer initially vol-
untarily recognized the Intervenor as the bargaining
representative of its employees at the Fontana facility
in 1949. Pursuant to an accretion agreement, in 1988
the Employer subsequently recognized Intervenor as
the bargaining representative of its employees at the
new Riverside facility.3
The Petitioner seeks to represent the fewer than 50
skilled maintenance employees who are currently part
of the above-described existing unit, which itself is not
one of the eight appropriate units enumerated in Sec-
tion 103.30 of the Rule, i.e., it is a nonconforming
unit. In contrast, the petitioned-for unit of skilled main-
tenance employees is one of those eight appropriate
units set forth in the Rule. The Regional Director, in
directing an election, found nothing in the Rule or the
rulemaking suggesting that the Rule should never be
applied to situations involving existing nonconforming
units. He further found that neither the Employer nor
the Intervenor raised any issues not previously consid-
ered during the rulemaking, nor had they shown that
any other standard should be applied. Relying on Sec-
tion 103.30(c) of the Rule,4 the Regional Director con-
cluded that it would not be impracticable to apply the
Rule to create a unit of skilled maintenance employees
where such employees are part of an existing non-
conforming unit, and, therefore, he directed an election
in the petitioned-for unit. The Employer and the Inter-
venor argue that according to the plain language of
Section 103.30(c), the Rule applies only to initial orga-
nizing situations and, therefore, is inapplicable here.
II.
While engaging in the rulemaking process, the
Board was not unmindful that the existence of non-
conforming units in acute care hospitals raised a vari-
ety of issues with respect to unit determinations. The
Board found that those issues had not been extensively
addressed during the rulemaking proceeding. The
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In its First Notice of Proposal Rulemaking, the Board had deter-
mined to apply the rules to nonconforming units ‘‘insofar as pos-
sible.’’ 284 NLRB at 1521, 1570.
6 Mallinckrodt Chemical Works, 162 NLRB 387 (1966).
7 Webster’s Third New International Dictionary defines ‘‘addi-
tional’’ as ‘‘existing or coming by way of addition—added, further
. . . .’’
8 284 NLRB at 1521.
9 The Board’s discussion of this issue in the context of prolifera-
tion concerns in the preamble to the Final Rule also demonstrates
that the Board understood the phrase ‘‘new units’’ to mean those
sought in addition to any existing, nonconforming units. See 284
NLRB at 1594–1595.
10 The pertinent portion of the comment reads:
Where existing units are not in conformity with the new pro-
posed final rule, we can anticipate a number of questions arising
with respect to the applicability of the new rules. Where units
smaller than those permitted by the rules already exist, may the
incumbent petition for a residual unit? May another labor orga-
nization? What will be the continued vitality of the principles
enunciated in Levine Hospital of Hayward, 219 NLRB 327
(1975)?
11 284 NLRB at 1573 fn. 26, citing Campbell Soup Co., 111
NLRB 234 (1955).
12 Sec. 103.30(d). In the preamble to the Final Rule, the Board
stated that, although it was concerned about the results of allowing
the parties to stipulate to a nonconforming unit, and that stipulations
in conformity with the Rule surely would be preferable, ‘‘[i]n view
of Congress’ concern with stability in health care labor relations, the
importance of reducing unnecessary litigation, and expeditiously pro-
ceeding with elections, permitting stipulations, even when they do
not conform to the Board’s explicitly drawn units, seems war-
Board therefore determined that ‘‘for the time being’’
such issues would be adjudicated on a case-by-case
basis. 284 NLRB at 1570–1571. The Board added that
in adjudicating cases it would attempt to apply the new
rules in situations involving nonconforming units, ‘‘in-
sofar as practicable.’’ 284 NLRB at 1571.5
Initially, we note that the petition here seeks in ef-
fect to sever the Employer’s skilled maintenance em-
ployees from the larger, long-standing unit in which
they are currently represented. Apart from any consid-
erations presented by the Rule, we would dismiss the
petition unless the requirements for craft severance are
satisfied, as it is not filed in the existing unit.6 Con-
trary to the Regional Director, however, we find that
nothing in the Rule may be read to expand the cir-
cumstances in which petitions seeking to sever a group
of employees from an existing unit will be entertained.
Section 103.30(a) of the Rule provides that,
‘‘[e]xcept in extraordinary circumstances and in cir-
cumstances in which there are existing non-conforming
units,’’ the eight units described in Section 103.30(a),
and only those units, will be found appropriate for pe-
titions filed with respect to acute care hospitals under
Sections 9(c)(1)(A)(i) and 9(c)(1)(B) of the Act, with
the further exception that, where sought by a union,
various combinations of units may also be appropriate.
As previously stated, Section 103.30(c) provides that,
where there are existing nonconforming units, and ‘‘a
petition for additional units’’ is filed, the Board will
find appropriate only units which comport, ‘‘insofar as
practicable,’’ with the eight appropriate units set forth
in Section 103.30(a). As noted above, the Regional Di-
rector relied on Section 103.30(c) in directing the elec-
tion in this case.
Contrary to the Regional Director, we find that Sec-
tion 103.30(c) is not applicable to petitions which seek
to sever, or carve out, a group of employees from an
existing unit, whether or not that unit conforms to
those established by the Rule. By its terms, Section
103.30(c) applies only to petitions for ‘‘additional
units,’’ that is, petitions to represent a new unit of pre-
viously unrepresented employees, which would be an
addition to the existing units at a facility.7 Accord-
ingly, we find that the instant petition, which seeks to
create a unit by dividing an existing unit, falls outside
the plain language of this section of the Rule.
This interpretation of Section 103.30(c) finds further
support in the explanatory comments issued by the
Board during the rulemaking process. Thus, in the ex-
planatory comments accompanying the First Notice of
Proposed Rulemaking, the Board stated that the pre-
amble to the proposed rule ‘‘is by its terms limited to
petitions for initial organization, since historically the
Board has required decertification petitions to be filed
in the certified or recognized unit. When institutions
are partially organized we assume that petitions for
new units will follow the proposed rules, insofar as
possible.’’8 As this comment makes clear, where there
are existing units the Board contemplated that the Rule
would apply only with respect to petitions for new
units. The instant petition does not satisfy this require-
ment as the unit sought is not new.9
Likewise, the preamble to the Second Notice of Pro-
posed Rulemaking demonstrates that the Board did not
intend that Section 103.30(c) be read to expand the cir-
cumstances in which the Board would accept a petition
to sever a group of employees from an existing unit.
Rather, the Board’s comments on this point are di-
rected at petitions for additional, residual units in cases
in which units narrower in scope than those permitted
by the Rule already existed.10 There is no indication
that the Board intended Section 103.30(c) to apply
where, as here, the existing unit is broader than those
which the Rule envisions and the petition seeks to
sever some of the represented employees from that
unit.
Our interpretation of Section 103.30(c) is also con-
sistent with the Board’s treatment of nonconforming
units in other settings under the Rule. Thus, as noted
above, the Board will require decertification petitions
to be filed in the existing certified or recognized unit,
even if that unit does not conform to those established
under the Rule.11 Likewise, the Rule provides that the
Board will accept stipulated units which do not con-
form to those established by the Rule.12 In our view,
935KAISER FOUNDATION HOSPITALS
ranted.’’ 284 NLRB at 1573. We find that these same concerns mili-
tate in favor of our finding here that the Rule also does not expand
the circumstances in which groups of employees may be severed
from an existing unit.
We further note the Board’s additional comment that, ‘‘[t]o the ex-
tent a stipulation may later result in the creation of a residual group
of unrepresented employees, the Board will address their representa-
tion concerns as it would those of other groups of residual employ-
ees present in partially organized acute care hospitals—on a case-by-
case basis applying the rules insofar as practicable.’’ Id. Again, this
comment demonstrates that Sec. 103.30(c) was not intended to apply
to petitions to sever employees from existing units.
13 Great Atlantic & Pacific Tea Co., 153 NLRB 1549 (1965).
14 The Regional Director did not address this issue because, as dis-
cussed above, he would have directed an election under the Rule.
15 The Employer cursorily argues that severance principles should
never apply in health care cases. That argument was not presented
to the Regional Director. We note, moreover, that application of
Mallinckrodt craft severance principles in the health care setting is
fully consistent with the Congressional directive to avoid undue pro-
liferation of bargaining units, in light of the heavy burden which
Mallinckrodt places on the party seeking severance. See generally
Kaiser Foundation Hospitals, 210 NLRB 949 (1974) (analyzing the
case under criteria set forth in Mallinckrodt and finding severance
of LPNs from existing unit not appropriate).
16 In the Second Notice of Proposed Rulemaking, the Board de-
scribed skilled maintenance employees as those employees who are
generally engaged in the maintenance and repair of the hospital’s
physical plant systems such as heating, ventilation a/c, refrigeration,
electrical, plumbing and mechanical, as well as their trainees, helpers
and assistants. Skilled maintenance classifications typically require
some high school, some postsecondary training such as vocational or
trade school, formal or informal apprenticeship programs, or an asso-
ciate’s or bachelor’s degree or license. The Board found that skilled
maintenance employees frequently have separate supervision by the
hospital’s plant engineering or maintenance department, higher wage
rates reflecting higher skills and training, and only incidental contact
with employees outside the maintenance department and no direct
involvement in patient care. See Jewish Hospital, 305 NLRB 955
(1991).
Before the Regional Director, the Employer maintained that sev-
eral of the classifications sought by the Petitioner should not be in-
cluded in a skilled maintenance unit. That question is not before the
Board now.
17 See Jewish Hospital, supra; Franklin Mint, 254 NLRB 714
(1981).
18 Firestone Tire & Rubber Co., 223 NLRB 904 (1976).
it would be anomalous to adopt a different rule accord-
ing any less respect to nonconforming units, in the
case of a petition for an election among a subgroup of
an existing, nonconforming unit.
Finally, the Board’s long-standing policy of accord-
ing great deference to collective-bargaining history
also supports our decision not to apply the Rule auto-
matically to preexisting nonconforming units.13 We
conclude that this result is consistent with the design
and purpose of our decision to engage in rulemaking—
to further the long-standing policy of promoting indus-
trial and labor stability—and does not conflict with
Congress’ admonition against undue proliferation of
bargaining units in the health care industry.14
III.
In light of our finding that this case is not governed
by the Rule, we next consider this case under tradi-
tional representation law principles. Under those prin-
ciples, the petition must be dismissed unless the cri-
teria for craft severance established in Mallinckrodt
Chemical Works, above, are satisfied.15 For the reasons
which follow, we find that the Petitioner has not estab-
lished that its petition satisfies these requirements.
Analyzing the case under the facts set forth in
Mallinckrodt, we find severance to be inappropriate.
Under Mallinckrodt, the following factors are relevant:
whether the proposed unit consists of a distinct and ho-
mogeneous group of skilled journeymen craftsmen or
a functionally distinct department; the collective-bar-
gaining history related to those employees; the extent
to which the petitioned-for unit has established and
maintained a separate identity during its inclusion in
the overall unit; the degree of integration of the em-
ployer’s production processes; the qualifications of the
union seeking severance; and the pattern of collective
bargaining in the industry.
The skilled maintenance employees are part of the
Employer’s plant services/plant engineering depart-
ment, which includes equipment services, clerical, and
service and maintenance employees. The petitioned-for
unit consists of bio-medical technicians, tool
clerk/department clerk, tool crib attendant, maintenance
attendant, and engineers, and it is undisputed that these
employees are in fact skilled maintenance employees.16
They perform various maintenance tasks, and service,
operate, maintain, and repair hospital equipment and
plant systems such as heating, ventilation, air condi-
tioning, electrical, and plumbing. These positions gen-
erally require completion of high school and post-
secondary training or vocational training and some of
the employees are required to be licensed. The peti-
tioned-for employees are separately supervised by the
chief engineers or plant engineers for each department,
and their contact with other employees, although fre-
quent, is essentially limited to identifying maintenance
problems.
Although the skilled maintenance employees here
would generally constitute a homogeneous craft or de-
partmental unit,17 the Board has, in other types of
cases, declined to sever a group of maintenance em-
ployees from an existing production and maintenance
unit in the face of a substantial bargaining history on
a plantwide basis.18 The Employer and the Intervenor
have a substantial and long-term collective-bargaining
history—almost 40 years—and there is no evidence
that the Intervenor has failed to give adequate rep-
resentation to the employees it represents.
Further, the evidence does not establish that the
skilled maintenance employees have maintained a sep-
arate identity. Terms and conditions of employment are
uniformly determined across the existing bargaining
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Although the International is the Intervenor, the Local admin-
isters the collective-bargaining agreement.
20 Cf. Beaunit Corp., 224 NLRB 1502 (1976). In Beaunit, the peti-
tioner attempted to sever a unit of electrical mechanics and instru-
ment mechanics from an overall production and maintenance unit in-
volved in the production of nylon fiber. The Board found that even
assuming the craft status of the mechanics, severance was not appro-
priate, particularly in light of the fact that these employees’ duties
were essential to the overall production process, the 7-1/2-year bar-
gaining history in the overall unit, and the absence of any counter-
vailing considerations.
21 Sonotone Corp., 90 NLRB 1236 (1950); Corporacion de
Servicios Legales, 289 NLRB 612 fn. 1 (1988).
unit, including hours of work, holidays, health and
pension benefits, vacation, seniority, and leave. The
Employer and the Intervenor negotiate on a unitwide
basis; there have been no separate negotiations regard-
ing the skilled maintenance employees. Wage increases
are negotiated for all job categories based on commu-
nity surveys of similar positions conducted in the rel-
evant geographic area. The skilled maintenance em-
ployees are also actively involved in representation
matters. A member of the proposed unit is the current
president of the Steelworkers Local 7600.19 In 1978,
this same employee was the grievance representative,
and from 1983–1986 he was the vice president. Fi-
nally, the petitioned-for skilled maintenance employees
have been represented in an overall unit since 1949 or
1988 depending on the facility and, with the exception
of two strikes, the bargaining relationship has been
predominantly stable.
We note also that the evidence does not establish
that the Petitioner is particularly qualified to represent
a traditional craft unit; indeed, the Petitioner has no
experience representing employees of any kind as it
was formed by 17 of the petitioned-for employees only
3 weeks before the petition was filed.
Thus, we conclude that under the traditional
Mallinckrodt standards, severance of the skilled main-
tenance employees is inappropriate, and we therefore
shall dismiss the petition.20 In dismissing the petition,
we are not unmindful that permitting an election in this
case might theoretically bring the units at the Employ-
er’s facility into closer alignment with those set forth
in the Rule. However, the Board is reluctant, absent
compelling circumstances, to disturb bargaining units
established by mutual consent where there has been a
long history of continuous bargaining, even in cases
where the Board would not have found the unit to be
appropriate if presented with the issue ab initio.21 For
the reasons set forth above, the Board has rejected the
view that the instant unit’s noncompliance with the
units established as appropriate by the Rule is such a
compelling circumstance. As no other compelling cir-
cumstance has been shown, we shall reverse the Re-
gional Director’s Direction of Election and dismiss the
petition.
ORDER
The Regional Director’s Decision and Direction of
Election is vacated and the petition is dismissed.
MEMBER RAUDABAUGH, concurring.
I agree with the result reached by my colleagues,
but not with all of their reasoning. Accordingly, I write
this concurrence.
The Steelworkers Union (USW) represents a large
unit in a hospital. The unit predates the Rules, and in-
cludes many classifications. The unit does not conform
to any of the units under the Rules. One of the classi-
fications in the USW unit is ‘‘maintenance employ-
ees.’’ The petitioning union (Independent) seeks to
sever the maintenance employees and represent them
separately. A unit of maintenance employees is one of
the appropriate units under the Rules.
Section 103.30(a) of the Rule provides for eight ap-
propriate units, except in extraordinary circumstances
and in circumstances in which there are existing non-
conforming units. The latter exception is relevant here.
With respect to nonconforming units, Section
103.30(c) provides that, where there is an existing non-
conforming unit, and a petition for an ‘‘additional’’
unit is filed, the Board will find appropriate a unit
which comports, insofar as practicable, with one of the
eight units.
The problem in this case concerns the wording of
Section 103.30(c). Read literally, it applies to the in-
stant case. There is a nonconforming unit, and the Peti-
tioner seeks to create an additional unit. That is, if the
Petitioner succeeded, there would be two units instead
of the present one unit. Thus, Section 103.30(c) lit-
erally applies. However, as set forth in the majority
opinion, it is rather clear that, notwithstanding the lan-
guage of Section 103.30(c), that provision was in-
tended to cover only situations where the petitioner
seeks to create an additional unit comprised of unrep-
resented employees. Because the petition here does
not fall within the intendment of Section 103.30(c),
that section does not apply. In such circumstances, tra-
ditional concepts of representational law apply. These
concepts include the Mallinckrodt severance principle.
I agree with my colleagues that, under that principle,
the skilled maintenance employees involved here can-
not be severed from the longstanding unit in which
they are now represented.