The Vanderbilt University

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1076 (N.L.R.B. 1975)

1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Vanderbilt University and Laborers' International
Union of North America, Local Union #386,
AFL-CIO, Petitioner. Case 26-RC-4896
June 30, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 24, 1974, Laborers' International
Union of North America, Local Union #386, AFL-
CIO, hereinafter referred to as the Petitioner, filed a
petition seeking to represent certain employees of
The Vanderbilt University, hereinafter referred to as
the Employer or Vanderbilt. Pursuant to the direc-
tion of the Regional Director for Region 26, a
hearing was held before Hearing Officer Bernard
Aronstam on October 8 and November 6, 1974.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board's
Rules and Regulations, the Regional Director trans-
ferred this case to the Board for decision. Briefs filed
by the Employer have been received and considered
by the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
Employer's briefs, the Board finds:
1. The parties stipulated, and we fmd, that during
the past year the Employer received gross revenues in
excess of $1 million from its educational and related
activities in Nashville, Tennessee, and purchased and
received goods valued in excess of $50,000 directly
from outside the State of Tennessee. We find that the
Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The parties stipulated, and we find, that the
Petitioner is a labor organization within the meaning
of the Act claiming to represent certain employees of
the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
The Petitioner has filed a petition seeking to
represent "craft employees (including carpenters,
218 NLRB No. 164
plumbers, heating and air conditioning and refrigera-
tion workers, painters, electricians) in the hospital
shops of the plant operations department" of the
Employer, and excluding "all other employees in the
hospital shops of the plant operations department
and all supervisors and guards as defined in the Act."
As thus defined, the requested unit includes all
remaining craft employees in the Employer's plant
operations department who are presently represented
by the Petitioner. Some factual background is
necessary to place the contentions of the parties in
perspective.
The Employer, Vanderbilt, is a Tennessee general
welfare corporation engaged in providing graduate,
undergraduate, and professional training, and related
services, to some 6,700 students enrolled in its 81
academic departments and 8 schools, including
schools of medicine and nursing which are part of
the Vanderbilt Medical Center. In addition to the
medical and nursing schools, the Vanderbilt Medical
Center (herein the Medical Center) includes the
following facilities: a hospital, two clinics, a rehabili-
tation center, several laboratories, and a medical arts
building. In all, the Medical Center employs some
2,81)0 professional and nonprofessional persons.
With the minor exceptions of the observatory and
the animal farm, all of the foregoing medical and
nonmedical schools, departments, facilities, and
operations of Vanderbilt are located on contiguous
tracts of land in Nashville, Tennessee. While there
are no fine lines of demarcation, most of the Medical
Center buildings are located in the extreme eastern
portion of the campus. The remaining portions of the
campus are referred to by the parties as the North
Campus or, simply, the Campus.'
Vanderbilt's chief administrator is the chancellor,
and an executive vice chancellor acts in his absence.
Under the executive vice chancellor are three vice
chancellors in charge of fiscal affairs, the Medical
Center, and athletics, respectively. Among his other
duties, the vice chancellor for fiscal affairs oversees
the plant operations department, which is under the
immediate management of a director and his
associate. Basically, the plant operations department
is responsible for providing maintenance services,
including all mechanical, structural, decorative, and
electrical work on all buildings in both the Medical
Center and the North Campus areas of the Vander-
bilt campus.
Following the Employer's organizational scheme,
the plant operations department has two major
divisions, Medical Center and North Campus.
Within each division of the plant operations depart-
ment are the following five mechanical, craft, or
1 As used herein, "campus" refers to both the Medical Center and the
Campus.
VANDERBILT UNIVERSITY 1077
trade shops: carpentry, electrical systems, HAR (i.e.,
heating, air conditioning, and refrigeration), decorat-
ing (i.e., painting), and plumbing.2 Each shop-the
lowest organizational unit within the plant opera-
tions department-consists of a crew of journeymen
and apprentices, and a foreman. Each shop foreman
reports in turn to a supervisor or one of the
superintendents for craft services, and each superin-
tendent is immediately answerable to the associate
director of the plant operations department.
In April 1972, the Petitioner filed a petition for a
unit of service and maintenance employees, includ-
ing all craft employees in the plant operations
department. At the hearing, the parties agreed and
stipulated, inter alia, that the approximately 43
craftsmen in the Medical Center shops of the plant
operations department, herein sought, should be
excluded from the unit because they devoted in
excess of 50 percent of their time' to the Medical
Center and, under the standards then prevailing,3
were ineligible to participate in a Board-conducted
election. Thereafter, the Regional Director directed
an election in the appropriate unit, which the
Petitioner`won.4 Following the Petitioner's certifica-
tion., the parties entered into negotiations culminat-
ing in the execution of a 3-year collective-bargaining
contract, effective November 15, 1972, which covers
some 275-300 service and maintenance employees.
It is against this background that the instant
petition, ' requesting a unit of the 40 or so Medical
Center craft shop employees in the plant operations
department, was filed. The Employer takes the
position that the requested unit is but an accretion to
the existing,unit which includes the North ' Campus
craft shops. The Petitioner maintains that the
petitioned-for unit is separately appropriate. Howev-
er, after the hearing was reopened, the Petitioner
expressed its desire to represent the Medical Center
shop employees should it be determined that they are
an accretion to the existing unit. Pursuant to the
Regional, Director's order, the hearing was reopened
to determine "whether the Petitioner is willing to
represent a unit other than that petitioned for and as
to the appropriateness of the unit within the Medical
Center." Without waiving their other contentions,
the parties agreed, and, stipulated, that the peti-
tioned-for employees and the 2,800 Medical Center
employees share no community of interest, and,
further, that any unit including both groups would be
inappropriate. Because of the novel and complex
Z In addition, the plant operations department has a powerhouse and
machinery shop, and a grounds and moving shop. However, unlike the craft
shops discussed above, these two shops fit conveniently into neither division
of the plant operations department because they service the entire campus.
Sundasly, the' five housekeeping shops of the plant operations department,
responsible for all of the men 's and women's dormitories and educational
issues raised, the Regional Director transferred this
case to the Board.
The Employer raises a number of arguments in
support of-its position on accretion. To begin with, it
contends that but for the Duke and Loyola precedent
the craft employees in question would have been
included along with the other plant operations
department employees in the service and mainte-
nance unit found appropriate in the prior representa-
tion proceeding. Of course, the Employer cites the
parties' stipulation in that case which, apart from the
then prevailing standards, makes no mention of any
reason for excluding these craft employees. In
addition, the Employer now asserts the strong
community of interest that exists among all of the
Campus and Medical Center craft shop employees in
the plant operations department.
Thus, all craft employees assigned to either the
Campus or Medical Center shops are hired from the
same source, the Employer's personnel office, and all
personnel files and payroll records are kept in one
central office. Furthermore, all labor relations
policies affecting the Campus and Medical Center
shop employees are administered by the director for
the plant operations department. For example,
recommendations for promotion, wage increases, or
discipline are channeled in the same fashion from
shop foreman, supervisor, or superintendent, to the
director for final disposition. The respective skills
required of the employees in the five separate craft
and mechanical trades shops for both the Campus
and the Medical Center are the same; there is one
common 4-year apprenticeship program for all of
these skilled employees; and job classifications
within each particular Medical Center shop are
identical to the classifications in the corresponding
Campus shop. With the exception of wages, the
pension program, and health and welfare benefits, all
other working conditions and benefits (such as
vacations, holidays, leaves of absence, and breaks)
are the same for Campus and Medical Center shop
employees. Indeed, prior to the negotiation of the
contract with the Petitioner all employees in the
plant operations craft shops had identical wage
scales and benefits. Moreover, not all of the five
Medical Center shops are located within the Medical
Center facilities; thus, the Medical Center plumbing
and carpentry shops share space with the North
Campus electrical systems shop in a building located
some distance from the 'Medical Center. In addition,
the Medical Center shop employees service, a facility
buildings, are technically considered part of the Campus ' division of plant
operations and campuswide responsibilities.
3 See Loyola University Medical Center, 194 NLRB 234 (1971), Duke
University, 194 NLRB ' 236 (1971).
4 Case 26-RC-4226 (not published in a Board volume).
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known as the Oxford House, although that facility is
not a part of the Medical Center. Also, the Stevenson
Center, a cluster of seven physical science buildings,
is available to medical and nonmedical students on
the campus, and apparently is serviced jointly by the
Medical Center and Campus craft shops of the plant
operations department. Finally, at the time that the
instant hearing was reopened the Employer stated
that it was then seriously considering plans to place
all of the North Campus and corresponding Medical
Center shops under one common supervisor.
On the other hand, the record shows that there is
only minimal interchange among employees in the
North Campus and Medical Center shops. Thus,
only once in the past 12 months preceding the
hearing were employees assigned to the correspond-
ing shop on either the medical or nonmedical side. At
that time two North Campus carpenters were
assigned temporarily, for 1 week, to work in the
Medical Center. While the Employer does provide a
campuswide job-bidding program, there is evidence
of only two instances of transfer involving the craft
shops. On one occasion a North Campus carpenter,
who was about to be laid off, transferred to fill a
vacancy in the Medical Center carpentry shop. On
the other occasion a powerhouse mechanic trans-
ferred as an apprentice to the Medical Center
plumbing shop. Also, it is clear that the shop
employees, assigned to respective sides of the
campus, do not work together except in emergency
situations. As mentioned above, wages and some
benefits are different. In addition, the work rules are
different; work rules for the Medical Center employ-
ees are set forth in the Employer's campus hand-
book, while the rules for the Campus shop employees
are established by the bargaining agreement. That
agreement also provides for a comprehensive griev-
ance procedure. Whether this procedure is similar to
the procedure applicable to the Medical Center shop
employees is not shown in the record of this case.
Finally, while the Employer does intend to combine
supervision over the Medical Center and Campus
shops, at least at the supervisor or superintendent
• level, the front line of supervision within each shop,
the crew foreman, will remain the same.
In view of all of the foregoing, we recognize that
Vanderbilt has made a strong showing of the
community of interest shared by the Campus and
Medical Center shop employees. Also, we have
weighed the Employer's contention that the unit
5 Although the petition mentions , among the exclusions, "all other
employees in the hospital shops of the plant operations department " (supra),
in fact, there are no Medical Center employees in the plant operations
department other than the employees in the five craft shops. Thus, the
Campus housekeeping employees (see fn. 2, supra) have no counterpart in
the Medical Center division of plant operations. Moreover, the housekeep-
ing employees assigned to the Medical Center are in a separate department
determination in the prior representation proceeding
has led to some of the differences between the two
groups of employees. In this regard, the Employer
specifically refers to its bargaining history with the
Campus employees which has accounted for differ-
ences in wages, pensions, health and welfare benefits,
work rules, and, to some degree, the ready transfer-
ring of employees to and from the Medical Center
and Campus shops.
Against this background, we must now determine
whether the 40 Medical Center craft shop employees
should be included within the certified unit, or a
larger unit including the 2,800 employees of the
Medical Center, or whether they may constitute a
separate, appropriate bargaining unit. Of course, we
are mindful of the strong congressional sentiment
favoring broad unit determinations in the health care
industry. We shall endeavor to harmonize our
representation findings in this industry with this
sentiment where it is possible to do so in conformity
with the other sound precepts which have governed
our representation findings. We shall also continue to
give weight to the desires of the parties, and, as in the
instant case , we recognize that their desires may play
a major role.
At the outset, we note that neither party maintains
that the petitioned-for employees, the Medical
Center shop craftsmen of the plant operations
department, should be included within a larger unit
of Medical Center employees. To the contrary, both
parties have argued that such a broadened unit
would be inappropriate.5 Indeed, the parties stipulat-
ed that the craftsmen petitioned for and the 2,800
Medical Center employees share no community of
interest at all and that a unit including both groups
would be inappropriate .6 These latter 2,800 employ-
ees come within the exclusive jurisdiction of Vander-
bilt's vice chancellor for medical affairs, various
subordinate directors, and numerous department
heads responsible for the operation of the medical
and nursing schools and the other facilities which
comprise the Medical Center. The professionals,
nonprofessionals, and clericals have, in contrast to
the plant operations Medical Center shop employees,
different supervisory hierarchies, personnel and labor
relations policies, salary or wage scales, hours,
working conditions, work rules, uniforms, seniority
provisions, apprenticeship and training programs,
and promotion and discipline procedures. In these
circumstances, we therefore conclude that a unit
altogether different from the plant operations department herein involved.
6 In addition to the Medical Center housekeeping employees (see fn. 5,
supra), the Employer also identified employees in some of the following
Medical Center departments as having no common interests with the plant
operations employees : dietary, medical records, central stores, pharmacy,
anatomy, microbiology , pharmacology , physiology, preventive medicine,
vital statistics, medicine , obstetrics, gynecology, and nutrition.
VANDERBILT UNIVERSITY
including the Medical Center craft shop employees
with these Medical Center employees is inappropri-
ate.
We also agree that the petitioned-for employees do
not constitute a separate appropriate unit. The
record in this case convinces us that the Campus and
Medical Center shop employees in the plant opera-
tions department share, to a substantial degree, a
similar community of interest. Many of the differ-
ences between the two groups, to which the Petition-
er has alluded, derive from our prior representation
finding which established a separate unit within the
plant operations department. With the enactment of
the recent amendments to the Act there is no
compelling reason for perpetuating such fictional
differences. Indeed, to recognize a separate appropri-
ate unit would only foster a needless fragmentation,
which the amendments were designed to prevent.
Therefore, we find appropriate a unit which
includes the Medical Center shop employees and all
other plant operations department employees who
are within the certified unit. However, we do not
agree with the Employer that these employees may,
by accretion, be included in the certified unit. This is
so because these employees were specifically exclud-
ed from that unit, and accepting the Employer's
contention would run afoul of our specialized rules
regarding accretion.? The Employer contends that
these employees would have been included within
the certified unit but for our then prevailing
standards, as defined in the Loyola and Duke cases,
supra. But that circumstance does not change the
unalterable fact that the Medical Center shop
employees were specifically excluded from that unit
and have a bargaining history different from that of
their Campus counterparts. Therefore, we believe
that these employees should be afforded the oppor-
tunity to determine for themselves whether they
desire to be included within the certified unit, or to
remain unrepresented. We recognize that should
7 See, e .g., Amcar Division, ACF Industries, Inc., 210 NLRB 605 (1974);
The Horn & Hardart Company, 173 NLRB 1077 (1968).
s For example , compare Sec. 8(g) with Sec . 8(d) of the Act. We have
already decided that these differences are not of sufficient importance, per
se, to warrant a finding that the petitioned -for unit would be an appropriate
separate unit . Duke University, 217 NLRB No. 136 (1975).
9 It was stipulated at the hearing , and we find , that the leadmen,
including Henry Fisher, are employees within the meaning of the Act and
1079
these employees elect to join the certified unit
different notice-of-strike provisions shall govern
different groups of employees within the same unit.8
The Petitioner must honor these new provisions. In
this regard, we note that the Petitioner maintained, in
the alternative, its willingness to represent these
employees within the existing unit. Therefore, we
assume that the Petitioner is aware of its responsibili-
ties.
Accordingly, we find that the craft employees in
the Medical Center shops of the plant operations
department should be given the opportunity by a
self-determination election to express their desire
with respect to being included in the existing service
and maintenance unit represented by Petitioner, and
we shall direct an election in the following voting
group:
All craft employees (including carpenters, plumb-
ers, heating and air conditioning and refrigeration
workers, and painters, and electricians) in the
Medical Center shops of the plant operations
department of the Vanderbilt University,9 exclud-
ing all other employees in the plant operations
department and all supervisors 10 and guards as
defined in the Act.
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 the existing service and maintenance unit
currently represented by the Petitioner, and the
Petitioner may bargain for such employees as part of
that unit. If a majority of them vote against the
Petitioner, they will be taken to have indicated their
desire to remain unrepresented, and the Regional
Director will issue a certification of results of election
to that effect.
[Direction of Election and Excelsior footnote
omitted from publication.]
shall, therefore, be included in the unit.
io It was stipulated at the hearing, and we find , that the following are
supervisors within the meaning of the Act. the foremen and assistant
foremen in the carpentry, painting, electrical systems, heating and air
conditioning and refrigeration, and plumbing shops; ' the supervisors in the
electrical systems and plumbing shops; and the superintendents for the
carpentry , painting, and heating and air conditioning and refrigeration
shops.