Duke University

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 81 (N.L.R.B. 1972)

DUKE UNIVERSITY 81
Duke University and International Union of Operat-
ing Engineers, Local Union No. 465, AFL-CIO,
Petitioner. Case I 1-RC-3418
November 7, 1972
DECISION ON REVIEW
On January 31, 1972, the Regional Director for
Region 11 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
found appropriate a campus-wide unit of the
Employer's maintenance employees, excluding those
who spend a majority of their working time in the
Employer's hospital. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review of the
Regional Director's Decision, contending that cer-
tain of the Regional Director's factual findings were
substantially in error and also that there are
compelling reasons for reconsideration of an impor-
tant Board rule or policy.
On May 9, 1972, the National Labor Relations
Board by telegraphic order granted the request for
review and stayed the election pending decision on
review. Thereafter, the Employer filed a brief on
review.
The Board has reviewed the entire record in this
case with respect to the issues under review and
affirms the Regional Director's Decision and Direc-
tion of Election except as modified herein.
The Employer is a private nonprofit university
incorporated under the Non-Profit Corporation Act
of the State of North Carolina, and has an enroll-
ment of approximately 7,200 students in 44 academic
departments and 7 graduate schools. It also operates
a medical center which encompasses a medical
school, a nursing school, and a hospital. The hospital
is primarily concerned with patient care and contains
835 beds.
The unit sought by Petitioner is a campuswide unit
of maintenance employees on the Duke University
campus at Durham. These maintenance personnel
are organized administratively into three divisions or
departments.
The physical plant department is responsible for
the maintenance of physical facilities which are not
included in the medical center, on both the east and
west campuses. The medical center facilities, includ-
ing the hospital, are maintained by the medical
center engineering operations department. These two
maintenance departments employ similar categories
of employees. The communications facilities and
equipment throughout the University, including the
medical center and the hospital, are maintained by
employees in the special utilities department.
The special utilities department is broken down
into two subdivisions. One subdivision is the high
voltage electric power service component which
employs high voltage technicians. The other subdivi-
sion is the communications and electronics subdivi-
sion , which employs medical electronics equipment
technicians, cross-bar technicians, and communica-
tions and electronics servicemen. The medical
electronics equipment technicians install and main-
tain sophisticated electronic equipment serving pa-
tients. The cross-bar technicians maintain the tele-
phone switching gear which, although located in the
basement of the hospital, serves the entire University
including the medical center. The communications
and electronics servicemen install and maintain the
remainder of the electronic equipment, such as
paging systems, television sets, and telephone equip-
ment, throughout the University.
The Regional Director found the requested cam-
puswide unit to be appropriate in accordance, he
said, with the agreement of the parties. In accordance
with a prior Duke case involving a unit of service
employees he excluded all maintenance employees
who spend more than 50 percent of their worktime in
the hospital.'
The Regional Director noted in his Decision that,
for purposes of deciding whether employees spend a
majority of their worktime in the hospital, the
Employer maintains records which are a sufficient
basis for making this determination except with
respect to the three cross-bar technicians who
maintain the communications switching equipment
located in the basement of the hospital. As to these
employees, the Regional Director concluded that
their unit placement would be decided in accordance
with the division of the communication budget
between the hospital and the rest of the University.
That is, said the Regional Director, the work of these
employees on switching equipment would be consid-
ered work in the hospital in the same percentage as
the percentage of the total cost of communication
service was allocated to the hospital during the 1-
year period preceding the payroll eligibility date.
In the request for review, the Employer takes issue
with a number of the findings and conclusions of the
Regional Director. The Employer avers that, contrary
to the Regional Director, the parties did not agree
on a campuswide unit but agreed only with respect to
the unit placement of maintenance personnel as-
signed to the physical plant department. The Em-
I Duke University, 194 NLRB No. 31, wherein the Board , Member Sec. 2(2) of the Act, the appropnate university-wide unit of biweekly service
Fanning dissenting, determined that since the hospital operated by the employees would exclude any employee working a majority of his time
Employer was exempt from the Board's jurisdiction under the provisions of within the hospital or hospital -related satellite facilities
200 NLRB No. 13
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer points out that there is no support in the
transcript of the hearing for the finding that it
maintains records setting forth the assignments to
hospital or nonhospital facilities of all its mainte-
nance personnel. In this same connection, the
Employer further argues, in essence, that even if such
records existed the 50-percent test should be recon-
sidered. For, says the Employer, the application of
the test to its maintenance personnel will require a
fracturing of its administrative departments in a way
which will cause disparate unit placement of employ-
ees working side by side merely because of the
circumstance that within the past year one may have
spent just over 50 percent of his worktime in the
hospital and the other just under that figure. Finally,
the Employer disputes the validity of the Regional
Director's budget allocation rule for the inclusion or
exclusion of the cross-bar technicians. We shall
consider each of these contentions seriatim.
While the Employer is correct that no specific
agreement of the parties with respect to the appropri-
ateness of the requested campuswide unit appears in
this record, we nevertheless conclude that such is the
proper scope of the unit herein. The campus
(including both the east and the west campus) is a
well-defined geographical area. There is no showing
that any of the employees sought or any employees
performing similar work are located off-campus.
Further, the Employer's maintenance employees are
paid biweekly, enjoy the same fringe benefits, and
are subject to the same centralized administration
and personnel manual.2 We therefore affirm the
Regional Director's finding that a campuswide unit
is appropriate.3
We find merit, however, in the Employer's conten-
tion that the application of the 50-percent test to the
unit placement of each individual maintenance
employee is unwarranted in the circumstances of this
case.4 For the problems of administering possible
separate schedules of wages and fringe benefits for
represented and unrepresented employees perform-
ing essentially the same work under the same
supervision are self-evident, particularly where, as
here, the record indicates that the Employer makes
assignments of individual employees to both hospital
and nonhospital facilities. Indeed from the limited
job assignment records (for communications and
electronics servicemen only) which were placed in
evidence, it is difficult to establish with certainty for
each such employee where the majority of his
assignments took place during the past year.
2 All biweekly personnel are governed by a personnel manual published
by the personnel policy committee
3 C W Post Center of Long Island University, 189 NLRB No 109. The
Employer did not state any position with respect to the scope of the unit
4 Application of the 50-percent test to individual employees did not
apparently create any unit placement issue in the circumstances of the prior
In these circumstances we shall not apply the 50-
percent test to each employee but we shall instead
apply the 50-percent test on an employee classifica-
tion basis. That is, if 50 percent or more of the
worktime of employees in a given classification-tak-
en as a group-is spent in nonhospital facilities, all
employees within that classification will be included
in the unit. If more than 50 percent of the worktime
of all employees in a classification-taken as a
group-is spent in hospital or hospital-related facili-
ties , all employees within that classification will be
excluded.
There is testimony in the record which will permit
us to determine the unit placement on the basis of all
of the involved classifications5 except for the cross-
bar technicians, who will be treated separately infra.
Thus, the record shows that none of the classifica-
tions in the physical plant department, except the air-
conditioning and refrigeration men, spend more than
50 percent of their time in the hospital, while all
classifications in the medical center engineering and
operations department spend more than 50 percent
of their time in the hospital. Two classifications in
the special utilities department, the medical electron-
ics equipment technicians and the communications
and electronics servicemen, spend more than 50
percent of their time in the hospital, while the high
voltage technicians do not.
Accordingly, the high voltage technicians and all
classifications in the physical plant department,
except the air-conditioning and refrigeration men,
will be included in the bargaining unit . All classifica-
tions in the medical center engineering and opera-
tions department as well as the medical electronics
equipment technicians, the communications and
electronics servicemen, and the air-conditioning and
refrigeration men will be excluded from the bargain-
ing unit.
There remains the question of the unit placement
of the cross-bar technicians. While the testimony
indicates that the three employees in this classifica-
tion spend 100 percent of their time working in the
hospital because the equipment which they maintain
happens to be located there (although such equip-
ment services the entire University), the record does
not indicate how their maintenance work is divided
between hospital-related and nonhospital communi-
cations elements , nor, more precisely, the extent to
which the switching equipment they maintain con-
cerns hospital-related communications elements as
opposed to University communications elements
Duke case , supra, where only 9 employees voted subject to challenge out of
the total of 731 eligible voters.
5 The testimony with respect to the job assignments of the communica-
tions and electronics servicemen is not inconsistent with the records
submitted with respect to their job assignments.
DUKE UNIVERSITY 83
which are not hospital related. We shall, therefore,
permit the cross-bar technicians to vote subject to
challenge.
In view of the foregoing, we conclude that the
following unit is appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All maintenance personnel on the Duke Uni-
versity Campus at Durham, North Carolina,
excluding medical electronics equipment techni-
cians, communications and electronics service-
men, air conditioning and refrigeration men, all
classifications in the medical center engineering
and operations department, and all other classifi-
cations whose incumbents as a group spend more
than 50 percent of their worktime in Duke
Hospital.
Accordingly, we shall remand the case to the
Regional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that
immediately preceding the date of issuance. [Excels-
ior footnote omitted from publication.]
MEMBER FANNING, dissenting:
In an earlier proceeding involving Duke University,
194 NLRB No. 31, I dissented from the majority
decision to exempt a hospital operated by an
employer over which the Board asserts its jurisdic-
tion. That opinion was based on a survey of the
relevant legislative history and general legal consid-
erations.
The decision here demonstrates that the majority
decision in that case, in addition to being unsound in
law, raises almost insuperable problems in day-to-
day administration and will certainly hinder the
expeditious disposition of this kind of case. I
therefore adhere to my earlier dissent and would
include all hospital employees in the unit.