Greater Bakersfield Memorial Hospital

National Labor Relations Board - Board Decisions

Nov 17, 1976

226 N.L.R.B. 971 (N.L.R.B. 1976)

GREATER BAKERSFIELD MEMORIAL HOSP.
Greater Bakersfield Memorial Hospital and Hospital
& Service Employees Union, Local 399, Service
Employees International Union, AFL-CIO, Peti-
tioner, and International Union of Operating Engi-
neers, Local No. 501 , AFL-CIO, Petitioner. Cases
31-RC-3092 and 31-RC-3095
November 17, 1976
DECISION ON REVIEW AND ORDER
As explained more fully below, the Regional Di-
rector for Region 31, on May 21, 1975, issued a Deci-
sion and Direction of Elections and Order Dismiss-
ing Petition in which he made certain unit findings
and directed elections in two units in the instant con-
solidated cases. Thereafter, on May 31, 1975, the Pe-
titioner in Case 31-RC-3095, International Union of
Operating Engineers, Local No. 501, AFL-CIO
(hereinafter Local 501), filed a request for review,
which the Board granted on June 24, 1975.
By way of background, on February 2, 1975, Hos-
pital & Service Employees Union, Local 399, Service
Employees International Union, AFL-CIO (herein-
after Local 399), filed a petition (Case 31-RC-3092)
requesting an election in a unit consisting of:
All employees of the Employer at its facility lo-
cated at 420-34th Street, Bakersfield, California,
excluding registered nurses, doctors, profession-
al employees, confidential employees, guards,
and supervisors as defined in the Act.
On February 6, 1975, Local 501 filed its petition
(Case 31-RC-3095) requesting an election in a unit
consisting of:
All Engineering Department employees, includ-
ing, but not limited to, all Operating Engineers
Control Clerks excluding all other employees in-
cluding all housekeeping, laundry, medical,
nursing, dietary, professional, office clerical,
guards and supervisory employees as defined in
the Act, as amended.
On February 13, 1975, the Regional Director or-
dered that the petitions be consolidated for hearing,
which was held on various dates in March. At the
hearing, the Hearing Officer granted Local 399's mo-
tion to amend and divide its petition into the follow-
ing two separate units:
Voting Unit A: All the employees of the Em-
ployer at its facility located at 420-34th Street,
Bakersfield, California; excluding registered
nurses, physicians, professional employees, con-
fidential employees, office clerical employees,
guards and supervisors as defined in the Act.
971
The B unit would include all office clerical em-
ployees, including but not limited to PBX opera-
tors, data processing employees, medical records
employees, and admitting office employees. Ex-
cluded would be the employees described in the
A unit and guards and supervisors as defined in
the Act.
Both Local 399 and Local 501 declined to state
whether they would be willing to participate in an
election directed in any units other than the units
described in their respective petitions.
The Employer agreed that the units requested by
Local 399 were appropriate, but opposed the unit re-
quested by Local 501.
On May 21, 1975, the Regional Director issued the
above-mentioned decision in which he found that
voting units A and B, supra, constituted units appro-
priate for collective-bargaining purposes, and he di-
rected elections in these separate units. The Regional
Director also ordered that the petition filed by Local
501, in Case 31-RC-3095, be dismissed because the
requested maintenance and engineering maintenance
department employees were neither a true craft
group nor an appropriate departmental unit with a
"community of interest separate and unique from
that of the other employees." Although, as the Re-
gional Director found, Local 501 has represented sta-
tionary engineers and maintenance department em-
ployees at numerous hospitals, the Regional Director
further reasoned that granting Local 501's request for
such a unit in the instant case would be contrary to
our decision in Shriners Hospitals for Crippled Chil-
dren, 217 NLRB 806 (1975).
Pursuant to the provisions of Section 102.67 of the
Board's Rules and Regulations, Local 501 on May
30, 1975, filed a request for review of the Regional
Director's decision.'
On June 24, 1975, the Board notified the parties
that a majority of the Board had decided to grant
Local 501's request for review and further ordered
that the election scheduled in voting unit A be stayed
pending decision on review.'
On the same day, June 24, Local 399 filed a mo-
tion requesting that the Board proceed with the elec-
tion scheduled in voting units A and B and impound
the ballots pending a decision on Local 501's request
for review. In the alternative, Local 399 moved that
1 Local 501 also filed a motion to disqualify Member Penello and former
Member Kennedy from participating in the review of the Regional
Director's decision because of their respective positions in previous cases
involving bargaining units in the health care industry
2 The Board also dismissed the motion to disqualify Members Kennedy
and Penello, supra, fn I, because the grounds stated in support of the mo-
tion were not sufficient "for disqualification in this or similar proceedings "
With regard to the request for review, Member Penello and former Member
Kennedy indicated that they would deny review
226 NLRB No. 143
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ballots of the maintenance and engineering de-
partment employees be separated as challenged bal-
lots.
On July 23, 1975, the Board notified the parties
that it had granted Local 399's motion to conduct the
election in voting unit A and impound the ballots
pending decision on Local 50l's request for review.
Furthermore, the Board directed the Regional Direc-
tor to proceed with the election in voting unit A and
challenge and segregate the ballots of all employees
included in the unit sought by Local 501, and to im-
pound all ballots pending a decision on the request
for review.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Employer, located in Bakersfield, California,
is a nonprofit California corporation engaged in the
operation of an acute care hospital. The hospital,
which contains 206 beds and 51 bassinets, operates
on a 7-day-a-week, 24-hour basis and in its 15 de-
partments employs some 450 nonsupervisory and
nonmanagerial persons working in approximately
100 different job classifications.
As noted above, Local 501, in Case 31-RC-3095,
seeks a unit limited to employees in the maintenance
and engineering department.' Within the mainte-
nance department there are three employees classi-
fied as maintenance engineer II, two employees clas-
sified as maintenance engineer I, one groundskeeper,
one grounds helper, one control clerk, three employ-
ees classified as engineer II, one operating engineer I,
and one general engineer. At present there are no
employees in the operating engineer III, maintenance
engineer III, and maintenance engineer leadman
classifications. Thus, Local 501 seeks to represent
some 13 maintenance and engineering employees
working in I of its 14 or 15 departments.
Generally, the maintenance-engineering depart-
ment is responsible for maintaining the Employer's
heating, cooling, and electrical systems and the
grounds, and for performing routine and some pre-
ventative maintenance throughout the hospital. The
boilerroom, or engineering plant, containing several
high pressure boilers, two automated electrical gener-
ators, a vacuum system, air pressure easers, the water
3 The Employer asserts that the maintenance and engineering employees
work in separate departments But, aside from the fact that these employees
have different codes for payroll purposes, there is little evidence to support
the Employer's contention . Indeed, its own evidence reveals that both main-
tenance and engineenng employees have common front-line supervisors
and, with the possible exception of the two groundskeepers and one station-
ary engineer on duty in the engineering plant infra, maintenance and engi-
neenng employees work together throughout the hospital Therefore, we
find that the employees in the requested unit constitute one department,
hereinafter referred to as the maintenance -engineering or, simply, mainte-
nance department
distribution system, and a small workshop, is located
at the rear of the hospital. The area is restricted to
authorized personnel only. It appears that at least
one operating engineer must be present at all times in
the boilerroom. Most of the remaining maintenance-
engineering department employees-referred to as
"the pool"-perform a variety of tasks pursuant to
specific requests or requisitions, usually relayed by
the maintenance control clerk, or, in the case of pre-
ventative maintenance, pursuant to a scheduled pro-
gram. Most repair work is performed on the spot
throughout the hospital. As stated, these mainte-
nance and operating engineering employees are
called upon to perform a variety of jobs including
painting, carpentry, tilesetting, grouting, plastering,
welding, and electrical work on the air-conditioning,
heating, refrigeration, sterilization, oxygen, and laun-
dry equipment. As a matter of course these employ-
ees also fix squeaky doors, replace lightbulbs and
broken window panes, build shelving, repair locks,
install floor, ceiling, and wall tiles, empty trash, re-
move scrap piles, move furniture and beds, mop up
and sweep spillages, unload equipment and supplies,
and drive hospital vehicles.
The groundskeeper and grounds helper, in addi-
tion to their normal duties of maintaining the
hospital's grounds, occasionally move scrap piles, re-
pair holes in the parking lot, and, during inclement
weather, clean equipment inside the hospital.
Finally, the engineering control clerk normally re-
ceives in-person or telephone requests for repairs, re-
lays messages, delivers reports, and, on occasion,
runs errands.
It appears that more complicated and major main-
tenance and engineering work is routinely handled
by outside contractors. Examples of such work in-
clude maintenance and repair of numerous pieces of
medical and office machines and equipment, truck
and automobile repairs, finish carpentry, elevator re-
pairs, glass door and window repairs, upper floor
window cleaning, landscaping, tree trimming, and
fence work, major boiler repairs, and virtually all ma-
jor construction work.
All of the maintenance department employees are
directly supervised by Assistant Chief Engineer Paul
Welch, who reports directly to Marion Beck, the Em-
ployer's chief engineer and plant superintendent.
Neither Welch nor Beck supervises any employees
outside the department. On the other hand, there is
some evidence that supervisers in other departments
have on several rare occasions approached and re-
quested that maintenance employees in the pool per-
form routine work. Generally, however, all mainte-
nance work is first requisitioned through the control
clerk, and other department heads have been re-
GREATER BAKERSFIELD MEMORIAL HOSP. 973
quested by Beck to follow the normal procedure.
With regard to skills, the maintenance-engineering
department has no job classification which requires a
state license or journeyman status, and the Employer
conducts no apprenticeship or formal training pro-
gram. The Employer has no educational level re-
quirement beyond mere literacy, and, if required, the
only training new employees receive is on-the-job
training.
The Regional Director found that, with the possi-
ble exception of one employee, none of the mainte-
nance-engineering department employees is a li-
censed journeyman. The record shows that within
the requested unit there is one certified journeyman,
a welder. However, there is further testimony that
two operating engineers and two maintenance engi-
neers are "qualified" forjourneyman status, although
none of the four employees has been certified. More-
over, it is not clear whether and to what extent these
allegedly qualified journeymen practice their re-
spective trades and crafts. It appears that there is
considerable interchange of employees between jobs
in the maintenance department.
Finally, with regard to the engineering control
clerk, the record shows that the job description re-
quires that the incumbent have an associate arts de-
gree. However, the present clerk has no such degree.
The record shows that the Employer's administra-
tor and associate and assistant administrators have
overall responsibility for the Employer's personnel
and labor relations policies. Briefly, no department
head, such as Chief Engineer and Plant Superinten-
dent Beck, may hire, promote, transfer, or, absent a
serious offense, discharge any employee without the
prior approval of the Employer's administrators. All
personnel files for the Employer's 450 employees are
kept in a central office which also handles requests
for new employees, job transfers, and orientation for
new employees.
With regard to job transfers, the record shows that
5 of the 13 employees in the maintenance department
were transferred from the Employer's other depart-
ments. Most of these transfers were from the house-
keeping department where the employees in question
worked as janitors or custodians. Thus, almost 40
percent of the present maintenance complement
transferred from other departments. Also, in at least
one instance, an employee transferred from the
maintenance department to another department,
medical records.
The personnel department also administers a com-
mon benefits plan which covers vacation, sick leave,
holidays, medical and life insurance, and retirement.
In addition, all employees are entitled to discounts
on meal tickets, pharmaceutical products, and vari-
ous medical services provided by the Employer.
Moreover, all employees share the same parking fa-
cilities and are eligible to participate in the same Em-
ployer-sponsored clubs and social functions.
All employees are subject to the same overall hour-
ly wage schedule which consists of over 100 job clas-
sifications placed in 36 different ranges. Generally,
the maintenance-engineering employees are classi-
fied in wage ranges in the upper half of the schedule.
Thus, the lowest paid employee in the requested unit,
the groundskeeper, is paid at a rate higher than ap-
proximately half of the Employer's other 450 em-
ployees. Also, the second lowest paid maintenance
employee, the control clerk, is paid at a rate higher
than some supervisors in other departments. Em-
ployees in the maintenance-engineering department
use timesheets, located in their department, to record
their hours. However, employees in other depart-
ments use the same sheets. All employees are subject
to the same overtime policies. Generally, all of the
employees have the same working shifts, and meal
and rest periods, although the maintenance employ-
ees take their lunchbreak at a time different from
other employees. Moreover, the maintenance em-
ployees generally eat together in the engineering
plant which also contains their lockers. As noted, the
maintenance employees have the same length break
periods, but because of the nature of their work they
may not take their coffeebreaks in groups larger than
two. Finally, the maintenance employees must pur-
chase their own tool pouches, at a cost of about $150,
but, like employees in at least one other department,
their uniforms are paid for in full or otherwise fur-
nished by the Employer.
Based upon the foregoing, the Regional Director
decided that the maintenance department employees
"do not have the common bond of a highly skilled
craft [group]" to warrant inclusion in a separate unit.
We agree. It appears from the foregoing that at least
a few employees are skilled at performing work at the
journeyman level. But most of the employees, espe-
cially those within the maintenance pool, appear to
have no particular craft or trade skills, and are gener-
ally responsible for mere routine maintenance work.
It appears that at best only I of the 13 employees is a
licensed journeyman, and while 4 other employees
may qualify for such status, none has been licensed
or certified as a journeyman. None of the employees
is certified or licensed by the State of California. Fur-
thermore, the Employer does not require that em-
ployees hired into the department possess any partic-
ular craft or trade skill although, of course, a
prospective employee with such qualifications or job-
related experience would be given special consider-
ation. But the fact remains that such skills are neither
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required for employment, nor, as far as the record
shows, are they practiced by incumbent employees in
the maintenance department. And such skills as are
acquired appear to result from informal on-the-job
training. In this regard, it is noteworthy that 5 of the
13 employees transferred into the department with-
out any specialized trade or craft experience.
Finally, it does not appear that most of these em-
ployees, especially those in the maintenance pool,
have occasion to practice any particular trade or
craft skill. Rather it appears that there is consider-
able interchange of employees within the department
on jobs performed by the pool.
We have also carefully considered Local 501's con-
tention that it represents numerous employees in
maintenance-engineering units in the State of Cali-
fornia. But the exhibits introduced in support of this
contention clearly fail to establish any pattern of bar-
gaining history for employees occupying job classifi-
cations similar to those in the instant case. Indeed, in
most instances, Local 501 appears to represent only
stationary engineers, and in no instance does it repre-
sent a group as diverse as the requested unit.
Also, for reasons stated above, we find that the
employees in the requested unit do not possess a
community of interest separate and unique from
other employees. For, as shown, these employees are
covered by essentially the same benefits, wage poli-
cies, and working conditions as are other employees.
To be sure, there are some differences such as the
fact that these employees are separately supervised.
But these circumstances are outweighed by the fact
that these maintenance employees, who, on the
whole, possess no special identifiable skills, often
work closely with other employees throughout the
hospital on routine matters, leaving the more compli-
cated work for others to handle. Also, it is significant
that such a high percentage of the present comple-
ment of maintenance employees have transferred
from other departments.
In sum, we find that the requested unit is inappro-
priate because it lacks true craft status and, further,
because the employees within the requested unit do
not share a distinct community of interest separate
from the Employer's other 450 employees 4
See Riverside Methodist Hospital, 223 NLRB 1084 (1976), and St Joseph
Hospital, 224 NLRB 270 (1976)
In his separate concurring opinion in St Vincent's Hospital, 223 NLRB
638 (1976), Member Penello clarified his position , as taken in Shriners Hos-
pitals for Crippled Children, 217 NLRB 806 (1975), on the appropriateness of
maintenance units in the health care industry In so clarifying his position,
Member Penello stated that he is of the view that a craft maintenance unit
may be appropriate when , viewed in light of all the criteria traditionally
considered in determining the appropriateness of maintenance units gener-
ally, its establishment does not conflict with the congressional mandate
against proliferation of bargaining units in the health care industry This
standard, which is a more rigid one than is applied in other industries, can
Accordingly, we shall order that the instant peti-
tion, in Case 31-RC-3095, be dismissed, and direct
the Regional Director to open the ballots cast by
maintenance employees in the election in voting unit
A, if necessary to determine the outcome of that elec-
tion.
ORDER
It is hereby ordered that the petition in Case 31-
RC-3095 be, and it hereby is, dismissed. It is further
ordered that, if necessary to determine the outcome
of the election held in voting unit A, the challenged
ballots cast by maintenance employees shall be
opened and tallied.
CHAIRMAN MURPHY and MEMBER FANNING, dissent-
ing:
We do not believe that the unit sought by Local
501 in this case is so materially distinguishable from
those sought in Jewish Hospital Association of Cincin-
nati d/b/a Jewish Hospital of Cincinnati 5 and St. Jo-
seph Hospital' as to justify finding the requested
maintenance department unit inappropriate and, for
the reasons stated in Member Fanning's dissenting
opinion in the former case and in our joint dissent in
the latter case, we would not dismiss Local 50l's peti-
tion.
The nucleus of the maintenance and engineering
department unit sought by Local 501 constitutes a
well-defined group of skilled individuals, separately
supervised and separately located in an area of the
hospital which is restricted to departmental employ-
ees. No matter how the majority attempt to minimize
the skills of the employees at the core of the unit
sought here, it is clear that the Employer itself,
through the significantly higher wages given employ-
ees of the department,' recognizes those skills. It is,
of course, not our understanding of the function of a
hospital's engineering plant to perform major con-
struction work but, rather, as in the case of this hos-
pital, it is to maintain highly sophisticated and poten-
tially dangerous equipment without which the
be met, in Member Penello's view, when the unit sought, unlike the situation
in Shriners, is composed of licensed craftsmen engaged in traditional craft
work , which is performed in a separate and distinct location apart from
other employees in the health care facility Normally, such employees do
not perform other services throughout the health care facility, as was the
case in Shriners, and there is, at most, minimal transfer or interchange to
and from the craft unit In the instant case , Member Penello agrees with his
colleagues that the unit sought-of all hospital maintenance employees-is
inappropriate since it does not satisfy the standard set forth by him for
finding a craft maintenance unit to be appropriate
'223 NLRB 614 (1976)
6 224 NLRB 270 (1976)
7 The engineering and mainteance employees encompassed by Local
501's petition are, with but two exceptions, paid more than any service
employee to whom they are being added
GREATER BAKERSFIELD MEMORIAL HOSP 975
hospital could not function. In this case as indicated,
no other employees have access to the engineering
plant. A qualified employee of the department must
be present at all times and within hearing range of
the high pressure systems. Employees of this depart-
ment have exclusive responsibility for maintenance
of water , electrical , heating , and air-conditioning sys-
tems . They wear distinctive uniforms , have separate
locker areas and, when one recalls repeated refer-
ences appearing in numerous postamendment unit
determination cases to the purported relevance of
employees "eating in the same cafeteria ," it is inter-
esting to note that these employees even eat in a sep-
arate area.
We do not consider those factors upon which our
colleagues rely in dismissing this petition , most nota-
bly the lack of licensing of engineering employees
and the degree of transfer from the service unit to the
engineering unit,' to be of such significance as to
overcome the test of American Cyanamid Company,
131 NLRB 909 (1961), which remains, if the majority
opinions in the maintenance unit cases orally argued
before the Board are taken at their word, the lead
case governing issues of this sort. Under that case, a
maintenance unit is an appropriate unit where the
operations of the employer are not so integrated as to
merge the identity of the maintenance function with
the nonmaintenance and the maintenance employees
constitute a readily identifiable group. The facts of
this case sufficiently establish, in our judgment, the
separate identity of the maintenance and engineering
department and, therefore, we dissent from the dis-
missal of the petition for their representation.
8 Although 5 of the 13 employees involved here are transfers into the unit,
there have been no transfers for the 2 years preceding the hearing in this
case, the majority of the transfers have been into the nonskilled jobs, e g ,
groundskeeper, and any progressions within the unit were accomplished by
virtue of on-the-job training or special courses