Albany Medical College Of Union University

National Labor Relations Board - Board Decisions

Dec 12, 1978

239 N.L.R.B. 853 (N.L.R.B. 1978)

ALBANY MEDICAL COLLEGE OF UNION UNIVERSITY
Albany Medical College of Union University and Lo-
cal 200, General Service Employees' International
Union, S.E.I.U., AFL-CIO, Petitioner. Case 3--
RC-7089
December 12, 1978
DECISION AND DIRECTION OF ELECTION
Pursuant to a petition duly filed under Section 9 (c)
of the National Labor Relations Act, as amended, a
hearing was held on November 3 and December 1, 6.
13, 19, 20, and 21, 1977, before Hearing Officer Bar-
nett L. Horowitz. On December 28, 1977, the Acting
Regional Director transferred the above-captioned
case to the Board in Washington, D.C., for decision.
Thereafter, both parties filed briefs.
The Board, having duly considered the Hearing
Officer's rulings made at the hearing, finds that they
are free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. Albany Medical College of Union University is
a not-for-profit New York State corporation engaged
in the provision of medical education and medical
research at its Albany, New York, location, which,
during the past calendar year, a representative pe-
riod, realized gross revenues from all sources for un-
restricted use in excess of $1 million and purchased
and received goods and services valued in excess of
$50,000 directly from sources located outside the
State of New York.
Albany Medical College (hereinafter the college) is
principally located on New Scotland Avenue in Al-
bany, New York. The college is closely associated
with Albany Medical Center Hospital (hereinafter
the hospital), an 800-bed hospital complex located
adjacent to the campus of the college. Both of these
institutions, forming the nucleus of Albany Medical
Center, are part of Union University, whose under-
graduate school, Union College, is located in Sche-
nectady, New York. The medical college and the
hospital, however, are separately governed and fi-
nanced. Each institution is headed by its own board
and has separate officers and administrative staffs.
With respect to finances, the hospital bills the college
for facilities it rents to the college for the latter's use:
the college bills the patients of its clinical faculty who
have services rendered to them at the hospital by the
college's faculty members.
For educational purposes, the college is divided
into two parts. One part contains the basic sciences
departments and the other the clinical departments.
The study of medicine at the college involves a 4-
year program combining science coursework beyond
the undergraduate level along with related laboratory
sessions and clinical work. Students generally begin
clinical study at the end of the second year or the
beginning of the third year. The clinical education
prepares the student for the practical application of
medical skills. To train students in patient care, the
college employs nearly 200 clinical professors in 12
clinical departments: anesthesiology, family practice.
medicine, neurology, obstetrics and gynecology.
ophthalmology, pediatrics, psychiatry, physical med-
icine and rehabilitation, postgraudate medicine, ra-
diology. and surgery.
In each department, faculty members teach stu-
dents the art of medicine by treating patients in their
presence. Thus. students are afforded the opportuni-
ty to observe the care, diagnosis, and treatment of
patients in the respective departments. During the
1976-77 fiscal year, the college recorded over 100,000
patient "encounters" or contacts between a clinical
physician and a patient in which the college charged
a fee: approximately 40 percent of these encounters
involved outpatients. The college derived over $1
million in revenues from its patient care activities in
fiscal year 1976-77. Thus, for every $2 the college
receives in tuition, it receives $3 for its clinical ser-
vices to the community. These "patient encounters"
are carried out in either the college or in space leased
by the college in the hospital. Most of the clinical
departments operate their programs within the hospi-
tal. Several departments, however, do carry on their
business at the college.
In 1974. the Act was amended to cover nonpro-
prietary hospitals, which theretofore had been ex-
cluded from the definition of "employer," along with
other "health care institutions." The Employer con-
tends that its medical school is a health care institu-
tion, while the Union contends that the Employer's
medical school is nothing other than a medical
school.
Section 2(14) reads:
The term "health care institution" shall include
any hospital, convalescent hospital, health main-
tenance organization, health clinic, nursing
home, extended care facility, or other institution
devoted to the care of sick, infirm, or aged per-
son.
Neither the Senate report nor House Committee re-
port offers further elucidation of the meaning of the
term "health care institution."' There is no evidence
indicating that Congress specifically intended either
to include or to exclude medical schools from the
Legislative History of Ihe Coverage of Nonprofit Hospitals Under the
National L.alx)r Relations Act. 1974. at 8, 10. 269
853
DECISIONS OF NArIONAL LABOR RELATIONS BOARD
definition of health care institutions. However, the
Board, well before the 1974 amendments, had assert-
ed jurisdiction over medical schools 2 and we cannot
assume, in the absence of some affirmative indica-
tion from the Congress, that the amendments were
intended to change the status of such schools.
While the college renders incidental health care
services to the Albany community, we conclude that
Albany Medical College is not a health care institu-
tion within the meaning of Section 2(14) of the Act.
Our conclusion rests on the finding that Albany
Medical College's primary purpose-its raison
d'etre--is to train physicians and to promote research
and not to provide medical services to the commu-
nity. Whether characterized as substantial or insub-
stantial, the college's clinical programs are only auxi-
liary to the provisions of medical education; the
former serves the ends of the latter.
Our dissenting colleague objects that we have, in
asserting jurisdiction over this medical school, "ig-
nored Congress' . . . concerns and fears regarding
the danger to the delivery of health care." The argu-
ment proves too much, for as shown above, the con-
cern of Congress was for the operation of specific
types of facilities, rather than the "delivery of health
care." His approach would apply closely limited
criteria to every health care related facility of any
type-a result plainly at odds with the interest of
Congress and with our own longstanding decisions.
In addition, we find no support for the Employer's
position in the legislative history of the 1974 health
care amendments. Congress' definition of the term
"health care institution" is specific and all inclusive.
Medical schools fit into none of the committee re-
ports' enumerated categories of health care institu-
tions, and while ultimately devoted to the care of the
sick, their purpose is to train those who will fulfill
that role upon graduation.
Accordingly, we conclude that Albany Medical
College is not a health care institution. We also find
that the college is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. We find that Local 200, General Service Em-
ployees' International Union, S.E.I.U., AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. A question concerning representation affecting
commerce exists regarding the representation of cer-
tain employees of the Employer within the meaning
of Sections 2(6) and (7) and 9(c)(1) of the Act.
2 E.g.. Tulane '/niversitv. 195 NLRB 329 (1972). Member Jenkins dissent-
ing on other grounds.
4. The Petitioner and Employer dispute the unit
placement of various job classifications among the
college's departments. The Petitioner contends that
an appropriate unit would roughly correspond to a
traditional maintenance or "blue collar" unit encom-
passing: animal caretakers I and II, store clerks or
stock clerks, library pages, laboratory helpers, house-
keeping employees, housekeeping aides, utilities me-
chanics. maintenance helpers, general maintenance
plumbers. painters, carpenters and electricians, gen-
eral maintenance workers, machinists, groundsmen,
electricians' helpers, and incinerator operators.
Petitioner wvould exclude physicians, registered
nurses, technicians, clerical employees, medical re-
ceptionists. doctors' assistants, doctors' aides, all
other employees involved in the medical care of pa-
tients, all employees not employed at the New Scot-
land Avenue situs, and all guards and supervisors as
defined by the Act.
The Employer and Petitioner have stipulated to
the exclusion of all professional employees, as well as
temporary, confidential, and managerial employees,
students of the college employed by it, and all other
employees not at the New Scotland Avenue situs. At
the hearing, the Employer merely contended that the
Petitioner's proposed unit was inappropriate. In its
brief to the Board, however, the Employer contends
that a unit of all the college's 350 hourly, nonprofes-
sional employees, occupying approximately 79 classi-
fications, is the only appropriate unit.
The employees sought by the Petitioner work in
the plant facilities department at the college, which
is directed by George Rehbein. His immediate super-
visor is Dr. Eugene Horn, associate dean of allied
health, institutional development and extramural af-
fairs. Employees in the plant facilities department
work out of the basement of the medical science
building. However, maintenance and housekeeping
work is performed mostly in the field wherever it is
needed. A department needing maintenance service
sends a requisition for work to the plant facilities
department. At that point, a work order is filled out
and passed on to the plant engineer who assigns it to
the appropriate employee. Thus, employees in this
department may be scattered throughout the college
during work hours.
Housekeeping employees, for example, clean all
areas of the college, e.g. examining rooms, doctors'
offices, operating rooms, and floors. Housekeeping
employees are utilized both during the day and at
night to sweep, mop, wash, and clean floors, win-
dows, furniture, and equipment.
Plumbers, electricians, painters, and carpenters ply
their trades in various areas of the college. General
maintenance employees work on the upkeep of the
854
ALBANY MEDICAL COLLEGE OF UNION UNIVERSITY
grounds, haul furniture around, and act as nonspe-
cialized repairmen. The utilities mechanics work on
the heating and cooling systems. The incinerator op-
erator operates the incinerator which burns refuse.
The machinist works in his shop developing equip-
ment for the college. The groundsmen care for the
grass and shrubbery.
The Petitioner is also seeking to represent several
"blue-collar" classifications outside the plant facil-
ities department. A stock clerk, an employee in the
purchasing department, delivers supplies from cen-
tral supply to every college department. Animal care-
takers I and II in the institute of comparative and
human toxicology clean and maintain animal cages
and rooms. Library pages in the main library shelve
and photocopy books. Laboratory helpers, who are
scattered throughout several departments-biochem-
istry, ophthalmology, medicine, oncology, gastroen-
terology, neurology, pediatrics, pathology, microbiol-
ogy-clean the various laboratories and the
glassware equipment therein, such as test tubes and
microscope slides.
The Employer requests, as an alternative to an all
college nonsalaried employee unit, a service and
maintenance unit. Insofar as we have found that the
college is not a health care institution, we shall not
look to unit determination principles utilized for the
health care industry.
Since the Board's assertion of jurisdiction over pri-
vate nonprofit colleges and universities in Cornell
University, 183 NLRB 329 (1970), we have found col-
lege maintenance units to be appropriate,3 and we
find that the Petitioner's requested maintenance unit
is appropriate. The maintenance employees herein
share a community of interest distinguished from
other nonprofessional, hourly paid employees at the
college. In particular, maintenance employees share
common supervision and skills with each other. All
employees in the unit are responsible for specific
housekeeping, preventive maintenance, or repair du-
ties.
Having found that a maintenance unit is appropri-
ate herein, we are faced with the issue of which clas-
sifications ought to be included in the unit. The
Board has traditionally found a community of inter-
est between plant clericals and production and main-
tenance employees, while consistently excluding of-
fice clericals from such a unit.'
Within the plant facilities department, we shall in-
clude the receiving clerks, the delivery clerks, and the
clerk/typists as having a community of interest with
maintenance employees based on the functional inte-
3 Duke Unive, -iry. 200 NLRB 81 (1972).
4General Electric Co., 107 NLRB 70 (1953).
gration between jobs and common work situs. The
receiving clerk accepts shipments which are then de-
livered by the delivery clerks to other parts of the
college. The clerk/typist types work orders and han-
dles the payment of telephone bills.
Outside the plant facilities department, the Peti-
tioner requests the inclusion of animal caretakers I
and II1, stock clerks, library pages, and laboratory
helpers as indicated above. We shall include these
employees as well since both parties have requested
their inclusion and we find that this placement is not
inappropriate.
The remaining employees requested for inclusion
by the Employer in an overall nonprofessional unit,
or, in the alternative, a service and maintenance unit,
work in either one of many medical departments or
in an administrative support department of the col-
lege. Regardless of the particular duties of each em-
ployee, the purpose and function of these depart-
ments are unrelated to those of plant facilities. The
exclusive function of plant facilities is the mainte-
nance of the college's physical plant. The medical
departments. on the other hand, exist primarily to
teach and to do research, and, secondarily, to offer
medical services to the community. The financial
and administrative departments support the educa-
tional activities of the college through the handling
of tuition, insurance, and grant moneys through the
coordination of all college services for the achieve-
ment of the college's goals and purposes.
Thus, we find that employees in Petitioner's re-
quested unit have a community of interest apart from
all other college departments, and we therefore find
the unit appropriate.
Based upon the foregoing, we find that the follow-
ing groups of employees constitute a unit appropriate
for collective bargaining within the meaning of Sec-
tion 9(c) of the Act:
All full-time and regular part-time maintenance
employees at the College's Albany, New York,
facilities, including employees classified as
housekeeping employees, utilities mechanics,
maintenance helpers, incinerator operators, gen-
eral maintenance carpenters, electrician's
helpers, groundsmen, general maintenance elec-
tricians, general maintenance plumbers, paint-
ers, general maintenance workers, machinists,
receiving clerks, delivery clerks, library pages,
laboratory helpers, animal caretakers (I and 11),
stock clerks, and clerk/typists within the Plant
Facilities Department; but excluding office cler-
ical employees, technical employees, physicians,
registered nurses, all other professional employ-
ees, temporary employees, confidential employ-
ees, managerial employees, students of the col-
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lege employed by it, employees employed at the
College's Whitney M. Young, Jr., Community
Health Center and its tacility in Alamagordo,
New Mexico, employees not employed at the
New Scotland Avenue site, guards and supervis-
ors as defined by the Act, and employees ex-
cluded by stipulation of the parties.
[Direction of Election I omitted from publication.]
CHAIRMAN FANNING, dissenting:
My colleagues have chosen today to lend literal
meaning to legislative history. They seem to believe
that there is some natural and necessary distinction
between a "health care institution" and a school, as
though one could exist only at the expense of the
other. Their reasoning is that if Congress wanted to
include medical schools within the definition of
"health care institution" it would have done so spe-
cifically. Such a narrow view would obviate the need
for this Board as the primary interpreter of the Act.
Their reasoning lacks substance. Congress' purpose
in enacting the health care amendment was to pro-
tect health care from industrial strife. Where, as here,
a medical school renders a significant clinical service
to the public, the school's health care facilities fall
within Section 2(14) for the purposes of this Act.
Otherwise, the safeguards intended to protect that
public cannot apply.
The legislative history of the 1974 evinces a clear
intent on the part of Congress to construe the term
"health care institution" broadly and inclusively. 6
Thus, Senator Williams, cosponsor of the 1974 bill
and Chairman of the Committee on Labor and Pub-
lic Welfare (now Committee on Human Resources),
stated that "the intent of the Committee was to cover
the entire nonpublic health care industry." 7
Senator Williams' remarks reflected Congress'
acute concern for, and the primary importance our
society attaches to, health care and the degree to
which we depend on it. Senator Taft, a co-sponsor of
the amendments, identified "health care institutions
as an absolutely crucial element of society." 8 Senator
Taft's remarks continue:
Strikes in hospitals pose the threat of discontin-
uance of institutional health care, including
emergency medical services, perhaps to an entire
J ]Etcelsive footnote omitted from publication.[
6 Legislative History of the Coverage of Nonprofit Hospitals Under the
National Labor Relations Act, 1974, at 110.
7 Eg.. id at 362.
Id. at 116.
community. This threat is to life itself and re-
quires an extremely thoughful approach by all
parties.9
As conceded by my colleagues, the college renders
a substantial clinical service to the community, much
of which is actually carried out at the Albany Medi-
cal Center Hospital. For example, the department of
medicine is located in the medical science building
and its annex at the college. This department "is de-
signed to provide students with an understanding of
the major disease processes and to train them in the
evaluation and medical management of patients." '0
Students "elicit medical histories and perform physi-
cal examinations of a substantial number of hospital-
ized patients, under the close supervision of instruc-
tors, and participate actively in the care of these
patients as part of the ward team." "
The department of neurology treats its patients on
the first floor of the medical science building. The
neurology department's clinical methods emphasizes
"thorough and accurate neurological examinations;
logical approach to diagnosis; discriminating and so-
phisticated use of ancillary diagnostic procedures
and pragmatic approach to treatment."' 2
The department of surgery carries out its outpa-
tient services on the sixth floor of the medical educa-
tion building. Most of the inpatient services are ren-
dered at the hospital. Both outpatient services and
minor surgery are performed at the college. Within
surgery, there is a radiology unit in the medical edu-
cation building; orthopedics and rheumatology pa-
tients, inter alia, are served here.
In addition, there are sleep rooms, as part of the
department of psychiatry, on the fifth floor of the
medical science building; psychiatric patients occa-
sionally spend a night there. The college also has the
facilities to perform urinalysis, eye and ear examina-
tions, and electrocardiograms.
Lastly, certain terminal cancer patients are treated,
within the division of oncology, in the department of
medicine, with chemotherapy and radiation.
Thus, Congress recorded its concerns and fears re-
garding the danger to the delivery of health care. Un-
fortunately for the public affected by the majority's
decision, my colleagues have chosen to ignore fact in
favor of dogma.
Accordingly, I dissent.
Id.
1977 78 Catalog. Albany Medical College. Pet. Exh. 2. p. 56.
1 Id
12 Id at 58.
856