Association of Hospitals of Santa Clara County

National Labor Relations Board - Board Decisions

Mar 22, 1977

228 N.L.R.B. 1014 (N.L.R.B. 1977)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association of Hospitals of Santa Clara County,
Employer-Petitioner, and International Union of
Operating Engineers , Stationary Engineers Local
39, AFL-CIO. Case 20-UC-120
March 22, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
Upon a petition for clarification of unit duly filed
on August 6, 1976, under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held
before Hearing Officer Jonathan J. Seagle on Septem-
ber 22 and October 1 and 7, 1976. Following the
hearing and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, and by direction of the
Regional Director for Region 20, this proceeding was
transferred to the Board for decision. Thereafter,
briefs were filed by the Petitioner and the Union.
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. The rulings are hereby
affirmed.
Upon the entire record in this case the Board finds:
1. The Petitioner, a California corporation, is a
multiemployer association which includes four pri-
vate nonprofit hospitals and one public municipal
hospital (El Camino Hospital District of Santa Clara
County). Each of the private nonprofit hospitals has
an annual gross revenue of at least $250,000 and has
received an annual amount of Medicare payments
exceeding $ 10,000.
2. The parties stipulated , and we find, that the
Union involved herein is a labor organization within
the meaning of Section 2(5) of the Act.
3. The history of collective bargaining between
the Petitioner and the Union dates back to 1968 when
the Association was formed. The most recent con-
tract between the parties, which extended from
October 15, 1973, to October 14, 1976, covered a unit
certified by the California State Conciliation Service
in 1968 and included chief engineers , assistant chief
engineers , watch maintenance engineers, utility main-
tenance engineers , utility maintenance men, and
biomedical technicians.
The Petitioner filed the unit clarification petition on
August 6, 1976, and requested that the Board clarify
the bargaining unit to exclude alleged supervisors.
Petitioner contends that the job classifications of
228 NLRB No. 121
"Chief Engineer" and "Assistant Chief Engineer,"
which have been treated by the parties as part of the
bargaining unit, are supervisory and should therefore
be excluded from the unit. Petitioner notes that prior
to 1974, when the Act was extended to cover
nonprofit institutions, there were no guidelines as to
what was an appropriate employee unit or what
employees were or were not supervisory and, accord-
ingly, exempt from the unit. Such determinations,
Petitioner claims, were dependent upon bargaining
strength or weakness of the parties.
The Union takes the position that history of
collective bargaining and the state certification can-
not be used as a basis for justifying a partial
multiemployer unit in this case, hence the petition
should be dismissed. In footnote 1 of its brief it refers
to the fact that no evidence was taken as to the
disputed classifications at one of the hospitals, El
Camino, because it is not an employer within the
meaning of Section 2(2) of the Act. Also, it takes the
position that the chief engineers and assistant chief
engineers (where employed) are not supervisors in
any event.
Thus, there is a question of whether the multiem-
ployer association involved herein is an "employer"
within the meaning of Section 2(2) of the Act, as
Petitioner contends, or whether, as the Union con-
tends, it is an entity exempt from Board jurisdiction
by virtue of El Camino's inclusion, since that hospital
is a political subdivision of the State of California.
We have held that entities are entitled to the
statutory exemption from political subdivisions under
Section 2(2) if they are either (1) created directly by
the State, or (2) administered by individuals who are
responsible to public officials or the general elector-
ate. See Camden-Clark Memorial Hospital, 221 NLRB
945 (1975). Although a stipulation regarding El
Camino's status was refused, testimony indicates that
it was formed on October 30, 1976, pursuant to
section 32000 of the Health and Safety Code of
California as a political subdivision of the State and is
tax supported. Accordingly, as a political subdivision
of a State, El Camino is exempt from our Act by
virtue of Section 2(2).
Having determined that association member El
Camino is exempt from the Board's jurisdiction, and
it appearing that all five employers continue to
support the five hospital multiemployer unit of
engineers certified by the State, we conclude that the
multiemployer unit sought herein is inappropriate
because of the inclusion of a nonstatutory employer.
ASSN . OF HOSPITALS OF SANTA CLARA COUNTY 1015
For lack of an appropriate unit we shall not assert ORDER
jurisdiction in this proceeding.'
' Cf. Peerless Publications, Inc., 190 NLRB 658, 659 (1971), to the effect
that it is appropriate for the Board to clarify where unit inclusions of the
parties are contrary to our Act . This, however, presupposes an appropriate
unit.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Employer's
petition herein be dismissed.