The Long Island College Hospital

National Labor Relations Board - Board Decisions

Dec 29, 1978

239 N.L.R.B. 1135 (N.L.R.B. 1978)

THE LONG ISLAND COLLEGE HOSPITAL
The Long Island College Hospital and Local 144, Ho-
tel, Hospital Nursing Home and Allied Services
Union, Service Employees International Union.
Case 29-CA-4562
December 29, 1978
SUPPLEMENTAL DECISION AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 9, 1977, the National Labor Rela-
tions Board issued a Decision and Order' in the
above-entitled proceeding. The Board, in agreement
with the Administrative Law Judge, found that Long
Island College Hospital, hereinafter called Respon-
dent, had violated Section 8(a)5) and (1) of the Na-
tional Labor Relations Act, as amended, by refusing
to bargain with Local 144, Hotel, Hospital Nursing
Home and Allied Services Union, Service Employees
International Union, hereinafter called Local 144.
The Board ordered Respondent to cease and desist
from refusing to bargain collectively with Local 144
and to bargain upon request of Local 144.
The representation issues underlying the present
controversy initially had been resolved under state
law by the New York State Labor Relations Board,
hereinafter called SLRB. Accordingly, Local 144 was
certified by the SLRB on December 28, 1964, as the
bargaining representative of a unit of maintenance
and engineering department employees in the main-
tenance and engineering department at Long Island
College Hospital. Respondent, however, then refused
to bargain with the Union contending that the unit
was inappropriate. Thereafter, the parties engaged in
extensive litigation, which ended in 1974 following a
determination by the SLRB, ultimately sustained by
the New York Court of Appeals, that Respondent
had unlawfully refused to bargain with Local 144.2
After that determination, the parties commenced
contract negotiations. However, Respondent discon-
tinued bargaining in August 1975, following the hos-
pital amendments to the National Labor Relations
Act, on the ground that the certified unit was inap-
propriate. In issuing its Decision and Order in the
above-entitled proceeding, the National Labor Rela-
tions Board extended comity to the SLRB's certifica-
tion of Local 144 finding that the SLRB's election
procedures conformed to due-process requirements
228 NLRB 83 (1977).
2 Long Island College Hospital v. New York State Labcr Relations 3oard
and Local 144, etc., 32 N.Y.2d 314 (1973); 298 N.E. 2d 614, cert. denied 415
U.S. 957 (1974).
and that extension of comity would effectuate the
policies of the National Labor Relations Act.
On November 17, 1977, the United States Court of
Appeals for the Second Circuit granted Respondent's
petition for review and denied the Board's cross-peti-
tion for enforcement. The court rejected the Board's
extension of comity to the SLRB certification be-
cause of Respondent's challenge to the underlying
unit determination. The court declined to consider
whether the National Labor Relations Act, as
amended, requires this Board, in each and every
case, to exercise its discretion in determining the ap-
propriate unit for collective bargaining and therefore
precludes this Board from extending comity to a
state agency's determination as to the appropriate
unit. Instead, the court concluded that the Board had
improvidently extended comity to the SLRB's unit
determination since there was insufficient basis to es-
tablish that the SLRB's decision was congruent with
Federal policy. The court further concluded that, in
the event the Board should find a separate unit of
maintenance and engineering employees to be appro-
priate, the Board was precluded from relying on the
results of the state election in view of the extensive
time lapse since the original certification and the
high rate of employee turnover. In these circum-
stances, the court remanded the case to the Board to
make its own determination as to an appropriate unit
based on the evidence adduced before the Adminis-
trative Law Judge and such further evidence, if any,
as it deems appropriate, and thereupon to hold a rep-
resentation election.
The Board, having decided to accept the remand,
notified the parties of its decision and invited state-
ments of position.3 Such statements were received
from the General Counsel, Local 144, and Respon-
dent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
While we respectfully disagree with the court's re-
jection of our grant of comity to the SLRB's certifi-
cation, we recognize that, in view of our acceptance
of the court's remand, its decision is binding on us
for the purpose of deciding this case.
The Board has duly considered the instant case in
light of the court's remand and statements of posi-
tion of the parties. In accordance with the remand of
the court, we hereby make the following findings
with respect to the unit.
Respondent is a New York corporation engaged in
Respondent's request for oral argument is hereby denied, inasmuch as
the record and statements submitted adequately present the issues and posi-
tions of the parties
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the operation of a nonprofit hospital providing hos-
pital, health care, and related services. Respondent
employs approximately 2,200 employees, of whom
540 are service employees and 70 are maintenance
and engineering employees.4
Both General Counsel and Local 144 contend that
a unit comprising Respondent's maintenance and en-
gineering employees, excluding clericals, is an appro-
priate unit under standard Board criteria. Further,
each contends that the record adduced before the
Administrative Law Judge is fully adequate for the
purpose of making a finding as to the appropriate-
ness of the unit sought.
Respondent initially contends that the complaint
should be dismissed on the grounds that the unit re-
quested by the General Counsel and Local 144 is
inappropriate in light of the congressional mandate
against undue-proliferation of units in the health care
industry. In the alternative, Respondent asserts that
the smallest appropriate unit should include all ser-
vice, maintenance, and related technical employees.
In the event the Board does not dismiss the com-
plaint, Respondent by way of proposed stipulation of
the parties, seeks to supplement the record with addi-
tional facts which purportedly represent material
changes since the hearing and which are set forth in
an affidavit of Respondent's vice president for sup-
port services, Stanley H. Fein. However, should the
parties decline to stipulate to the contents of such
affidavit, Respondent requests the Board to order a
supplemental hearing for the limited purpose of re-
ceiving evidence concerning the alleged changed cir-
cumstances.5
In Allegheny General Hospital,6 the Board, after
careful consideration of the legislative history under-
lying the health care amendments and review of its
unit determinations in the health care industry, de-
termined that it will continue to rely on its traditional
community-of-interest criteria in making unit deter-
minations in that industry. Accordingly, the Board
there held that, in determining the appropriateness of
a separate maintenance department unit or power-
house unit in health care institutions, the Board
would continue to apply the traditional test for such
units as set forth in American Cyanamid Companv.7
Under American Cyanamid, the issue presented is
whether the maintenance employees sought consti-
tute an identifiable group with a community of inter-
est that is sufficiently distinct from other unrepre-
4 Respondent also employs approximately 235 technical employees. 800
professionals, and 500 clericals.
5The parties have not stipulated to the contents of Respondent's affida-
vit.
6239 NLRB 872 (1978).
131 NLRB 909 (1961).
sented service and maintenance employees to war-
rant separate representation.s We proceed to this is-
sue.
Respondent's maintenance department consists of
approximately 69 nonclerical, nonsupervisory em-
ployees. The department is supervised on a day-to-
day basis by Director of Engineering Cregan. Cre-
gan. in turn, reports to the vice president in charge of
support services, Stanley Fein, who is responsible for
overall supervision of the housekeeping, security,
laundry, engineering, and maintenance departments.
All hospital employees, including maintenance de-
partment employees, share certain common benefits
and working conditions, including identical holiday,
vacation, sick leave, insurance, cafeteria, tuition re-
fund, and payroll savings benefits. In addition, all
employees are apparently covered by a uniform
grievance procedure and share the same bank of
timeclocks located in the employee entrance. We do
not view this broad commonality as a significant fac-
tor in determining the appropriateness of the unit
urged by the General Counsel herein, since such ben-
efits are apparently shared by professionals as well as
nonprofessional employees.
Respondent's maintenance and engineering em-
ployees are classified as follows: 2 incineratormen, 8
laborers, 5 helpers, 6 firemen, 36 maintenance men, 3
lead maintenance men, I refrigeration mechanic, I
preventive maintenance man, 2 boiler mechanics,
and 5 watch engineers. The maintenance men are
responsible for maintaining and repairing light bulb
fixtures, toilets, plumbing faucets, ceiling tiles, paint-
ing, etc. Primary functions of the laborers classifica-
tion include cleanup and operations of the Somak
machine, which pulverizes and liquefies waste (2.
days' training is required). Several of Respondent's
employees classified as maintenance men operate
and maintain low-pressure boilers used at two of Re-
spondent's buildings and, in addition, maintain the
window air-conditioning units throughout the hospi-
tal. Approximately 14 of Respondent's maintenance
employees are employed in the operations division of
the maintenance department. They are responsible
for building alterations on a project basis, including
construction of a pediatric intensive care unit. All
major maintenance and repair work is contracted
out.
Employees in the maintenance department are
generally more highly skilled than those in the larger
service group. Five of the employees sought, the
watch engineers, are licensed by the city of New
York. Although prior craft experience is not a pre-
Factors considered by the Board include, e.g., mutuality of interest in
wages, benefits, and working conditions; commonality of skills and supervi-
sion; frequency of contact with other employees: and interchange and func-
tional integration.
1136
THE LONG ISLAND COLLEGE HOSPITAL
requisite for hire, the personnel department requires
general handyman experience for employees in the
maintenance department, and Respondent provides
on-the-job training to its more highly skilled mainte-
nance employees. In addition, the wage rates re-
ceived by the maintenance and engineering employ-
ees are generally higher than those of service
employees. Thus, although the compensation of both
groups of employees is calculated according to the
service pay scale, the majority of maintenance em-
ployees are paid at the higher salary levels of that
scale, whereas it appears from the record that most
service employees are in the lower wage levels.
Respondent's maintenance workers spend a major-
ity of their time 65-90 percent) outside their shop
areas performing tasks throughout the hospital.
However, maintenance employees are dispatched
and supervised aimost exclusively by the director of
engineering, 9 and, for the most part, their contact
with nonmaintenance employees is limited to check-
ing with hospital personnel in an area prior to com-
mencing actual repairs. Further, while the perfor-
mance of duties throughout the hospital requires that
maintenance employees coordinate their services
with those of employees assigned to other depart-
ments, there is virtually no functional integration
with work performed by service employees. Thus,
service employees perform virtually no maintenance
functions.' And, as to the sole area of overlapping
duties, the record establishes that while maintenance
and service employees regularly work together to
move furniture, such joint activity is merely prepara-
tory to the performance of duties which are sepa-
rately supervised, separately performed, and func-
tionally distinct from work performed by service
employees.
There is no day-to-day interchange between main-
tenance and engineering department employees and
service employees. Further, since Respondent began
posting job openings in 1962, there have been only
seven permanent transfers between the maintenance
department and service department. Thus, during the
period between 1962 and the date of hearing, two
employees in maintenance and engineering transfer-
red to service jobs and five service employees have
transferred to maintenance jobs.
On holidays, weekends, and evening shifts, the four to five maintenance
department employees on duty, as well as all other nonmaintenance em-
ployees on duty, report directly to the assistant director of nursing. who is in
charge of the hospital dunng those hours.
10 While Respondent claims that both employees classified as porters in
the service department and employees classified as laborers in the mainte-
nance department perform cleanup functions, the record establishes that the
duties performed by each are neither identical nor jointly performed Thus.
while laborers are responsible, e.g., for removing debris, eti.. as the result of
new construction, porters are responsible for housekeeping duties prehlimi-
nary to readying facilities for patient care.
On the basis of the record facts set forth above, we
are persuaded that Respondent's maintenance and
engineering employees possess a community of inter-
est sufficiently separate and distinct from the broad-
er community of interest which they share with other
nonprofessional employees to warrant their inclusion
in a separate unit.' In so finding, we rely on those
employees' lack of functional integration with other
hospital employees; their generally higher skills and
experience; their separate supervision; and their gen-
erally higher wage rates compared to those of service
employees.
We turn next to Respondent's request for a supple-
mental hearing. As noted, in support of its request
Respondent attached to its statement of position an
affidavit by its vice president for support services,
Stanley H. Fein, in which the affiant describes cer-
tain alleged changes which have occurred since the
hearing and which Respondent asserts affect the unit
determination herein. Specifically, Respondent alleg-
es the following changes: (1) in Fein's absences from
the hospital, Maintenance Supervisor Cregan as-
sumes responsibility for directing service employees
in the housekeeping, dietary, and maintenance de-
partments; (2) during a 1977 economic crisis affect-
ing health care institutions in New York City, Re-
spondent attempted to reduce the number of layoffs
among its service employees by temporarily transfer-
ring three service employees to jobs in the mainte-
nance department; 12 and (3) during blizzard condi-
tions in January and February 1978, both
maintenance employees and service employees fre-
quently performed identical functions on a joint ba-
sis.
Respondent further alleges that the six clerical em-
ployees employed in the maintenance department
and three biomedical technicians are properly in-
cluded in the unit. Respondent, by way of affidavit,
asserts that the maintenance department clericals are
located throughout the hospital, receive reports of
problems, log and forward them to maintenance
men, and have substantial interchange with non-
maintenance departments. Respondent's biomedical
technicians work under the supervision of a medical
doctor and are responsible for the repair of complex
electrical equipment such as respirators.
We have carefully considered the contents of Re-
spondent's affidavit and conclude that it contains no
basic facts which would alter our unit determination
based on the present record. Thus, it does not appear
II See Sinai Hospilal of Detroni. Inc. 226 NLRB 425 (1976); St Francis
Hoslrrtal-Medual Center, 223 NLRB 1451 (1976).
According to Fein's affidavit, one of the employees subsequently re-
turned to a service lob. two were permanent transfers. and a fourth service
employee was transferred to the maintenance department as a clerical em-
ployee.
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there is common supervision between the main-
tenance and service departments except on a limited
and sporadic basis. Nor do we find it significant that
functional integration and instances of transfer may
arise as a result of emergency conditions, since any
community of interest created thereby with non-
maintenance department employees is merely tempo-
rary. Finally, since Respondent concedes that main-
tenance department clericals frequently interchange
with nonmaintenance department employees and
that biomedical technicians are under separate super-
vision and possess greater skills than maintenance
employees, Respondent has failed to allege a suffi-
cient basis for inclusion of those employees in the
unit. There is therefore no basis for reopening the
record to receive further evidence as to the unit.
Accordingly, we find that the following employees
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time employees in
the maintenance of plant and engineering de-
partment, excluding chief engineers, assistant
chief engineers, clerk and maintenance supervis-
ors, and all supervisors as defined in Section
2(11) of the Act.
Having found that the unit requested is appropri-
ate, we construe the court's remand as directing us to
hold a representation election. While such a practice
does not conform to the Board's standard proce-
dures,'3 we note that neither does it contravene any
due process rights of the parties nor does any party
to the present proceeding assert that it is improper to
hold such an election in the absence of a petition
filed before this Board. Accordingly, we shall direct
the Regional Director for Region 29 to conduct a
representation ele'ction among employees in the
above-described unit in the manner set forth below.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
I'See NLRB Statements of Procedure. Secs. 101.17 and 101.18; Board
Rules and Regulations, Series 8,. as amended, Secs. 102.60 and 102.61. Cf.
N.L.R.B. v. District 50, United Mine Workers of America [Bowman Transpor-
tation. Inc.]. 355 U.S. 453, 461 462 (1958); Purolator Products, Inc. (Van
NVuvs Plant), 160 NL RB 80, 84 (1966), and cases cited in fn. 9 thereof
1138