Hebrew Home & Hospital

National Labor Relations Board - Board Decisions

Aug 31, 1993

311 N.L.R.B. 1400 (N.L.R.B. 1993)

1400
311 NLRB No. 199
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Petitioner has been changed to reflect the new
official name of the International Union.
2 The parties have stipulated, and the record establishes, that the
Employer is not an acute care hospital within the meaning of the
Board’s Rule Regarding Collective-Bargaining Units in the Health
Care Industry, 29 CFR § 103.30.
3 Although served with notice of the filing of the Petition and a
copy of the notice of hearing, Local 1224 has not sought to inter-
vene in this proceeding. Moreover, the president and business man-
ager of Local 1224, who appeared at the hearing as a witness for
the Employer, testified that Local 1224 is not seeking to represent
the employees sought by the Petitioner.
4 Also reporting to Houle is the controller and the following de-
partments: pharmacy, rehabilitation, environmental services, and ma-
terials management, each of which include both represented and un-
represented employees.
5 The parties stipulated that the plant engineer is a supervisor with-
in the meaning of Sec. 2(11) of the Act.
Hebrew Home & Hospital, Inc. and Teamsters
Local Union 559, an affiliate of the Inter-
national Brotherhood of Teamsters, AFL–
CIO,1 Petitioner. Case 34–RC–1133
August 31, 1993
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 5, 1993, the Acting Regional Director
for Region 34 issued a Decision and Direction of Elec-
tion in which he found appropriate a unit of skilled
maintenance employees at the Employer’s nursing
home. Thereafter, in accordance with Section
102.67(b) of the Rules and Regulations of the National
Labor Relations Board the Employer filed a timely re-
quest for review of the Acting Regional Director’s de-
cision. Subsequently, on February 4, 1993, the Board
granted the Employer’s request for review but denied
the Employer’s request to stay the election. The elec-
tion was conducted on February 4, 1993, pursuant to
the Direction of Election and the ballots were im-
pounded pending resolution of the issue on review.
Having carefully considered the entire matter in
light of the entire record and the Employer’s brief on
review, the Board, for the reasons set forth in the Act-
ing Regional Director’s decision, has decided to affirm
the Acting Regional Director’s finding that the mainte-
nance employees in the petitioned-for unit constitute
an appropriate unit for collective bargaining under the
Board’s decision in Park Manor Care Center, 305
NLRB 872 (1992). Pertinent portions of the Acting
Regional Director’s Decision and Direction of Election
are attached.
Accordingly, the Regional Director is directed to
open and count the ballots cast by the employees in
the election held on February 4, 1993, and take further
appropriate action.
APPENDIX
5. The Petitioner seeks to represent a unit consisting of
nine employees employed by the Employer in its plant oper-
ations and maintenance department in the following classi-
fications: Maintenance mechanic, licensed maintenance me-
chanical engineer, and licensed maintenance electrical engi-
neer. Petitioner contends that these employees constitute an
appropriate skilled maintenance unit in the health care indus-
try. The Employer contends that the employees sought by
Petitioner are not skilled maintenance employees and do not
constitute an appropriate unit separate from the Employer’s
other unskilled, nonprofessional employees, many of whom
are currently represented by another union, as noted below.
The Employer is a Connecticut corporation located in
West Hartford, Connecticut, where it is engaged in the oper-
ation of a 334-bed long-term care facility for the elderly.2
The Employer’s facility consists of one four-story building
containing 165,000 square feet of space. The Employer em-
ploys a total of approximately 468 employees, approximately
half having been represented since 1968 by Local 1224 of
the Laborers’ International Union of North America (Local
1224) in a unit of certain nonprofessional employees, includ-
ing clerks, nurses’ aides, orderlies, porters, maids, kitchen
employees, dietary employees, and housekeeping employees
(the Local 1224 unit). There is no dispute that the plant oper-
ations and maintenance department employees at issue herein
have historically been excluded from the Local 1224 unit.
There is thus no history of collective bargaining involving
the petitioned-for employees.3
In addition to the employees in the Local 1224 unit, the
Employer employs approximately 236 other employees, in-
cluding the 9 employees in the petitioned-for unit, all of
whom are currently unrepresented. In addition to executive,
managerial, and supervisory employees, this unrepresented
group includes registered nurses, social workers, pharmacists,
physical and occupational therapists, other professional em-
ployees, licensed practical nurses, business office, and other
clerical employees and various other employees involved in
different aspects of patient care.
Of the nine employees in the plant operations and mainte-
nance department sought by Petitioner, six are classified as
maintenance mechanics, two as licensed maintenance me-
chanical engineers, and one as a licensed maintenance elec-
trical engineer. Until July 1992, when the two licensed clas-
sifications created, all employees in the department were
classified as maintenance mechanics. Primarily responsible
for the overall supervision of the plant operations and main-
tenance department is Director of Plant Operations Gary
Moody, who reports directly to the Employer’s vice president
and chief financial officer, David Houle.4 Reporting directly
to Moody are the licensed mechanical maintenance engineers
and the licensed maintenance electrical engineer, the plant
engineer, Andy Higgins;5 an administrative assistant, Theresa
Kenny; and three security officers who guard the Employer’s
facility between 3 p.m. and 6 a.m. The six maintenance me-
chanics report directly to the plant engineer.
The plant operations and maintenance department is lo-
cated on the ground floor of one wing of Respondent’s facil-
ity. The petitioned-for employees report to that department,
where their timeclock is located, and where they spend 40–
1401HEBREW HOME & HOSPITAL
45 percent of their work day. There is no evidence that any
other employees use this timeclock or regularly work in their
area. The plant operations maintenance department is located
near the toolroom, boilerroom, electrical room, generator
room, and other utilities on which the petitioned-for
emlpoyees work. Also located on the ground floor is the em-
ployee cafeteria, the dietary department, laundry, offices for
the environmental services department, and several other un-
specified departments.
The petitioned-for employees work a variety of schedules.
Two maintenance mechanics work from 6 a.m. to 2:30 p.m.;
one maintenance mechanic an two of the licensed mechanics
work from 7 a.m. to 3:30 p.m.; the other licensed mechanic
works only on weekends; two maintenance mechanics work
from 3 to 11 p.m.; and the remaining maintenance mechanic
works a part-time schedule which is not disclosed in the
record. The record is silent regarding the hours of work of
the Employer’s other employees.
Employees in the maintenance description, are generally
responsible for maintaining continuous safe functioning of
utility systems throughout the physical plant, within the lim-
its of their ability, by surveying physical plant utilities and
services in oder to maintain normal operations, maintain
plant equipment, execute routine and emergency repairs
throughout the facility, and respond to emergency calls for
assistance. Their specific duties include repairs and replace-
ments, mechanical inspection rounds, re-lamping rounds,
cleaning and maintaining the maintenance department, greas-
ing, oiling and changing filters on all mechanical equipment,
and assisting in snow removal and other grounds mainte-
nance.
Employees in the licensed maintenance mechanical engi-
neer position, according to their job description, are generally
responsible for performing a variety of routine-to-skilled gen-
eral preventive mechanical maintenance duties in the repair,
alteration, and modification of buildings, equipment, and fa-
cilities. Their specific duties include: (a) inspecting equip-
ment and facilities for proper operation and working condi-
tion; (b) determining the type and extent of malfunction of
equipment and performing necessary repairs thereon; (c) at-
tending to gas-fired steam boilers, hot water boilers and heat-
ers, and performing necessary adjustments and repairs there-
on; (d) servicing and repairing heating, air-conditioning, and
refrigeration equipment; (e) performing general mechanical
maintenance of hospital and clinic equipment, kitchen equip-
ment, office machines, and equipment; (f) performing general
maintenance to steam, gas, water, air, and sanitary plumbing
pipes and fixtures; (g) performing general welding of metals;
(h) performing routine maintenance of motors and other ma-
chinery, cleaning sink and grease traps, replacing and repair-
ing valves, and assembling equipment; and (i) performing
routine manual duties such as moving supplies, furniture, and
equipment, removing trash and scrap material and replacing
light bulbs.
Employees in the licensed maintenance electrical engineer
position, according to their job description, possess the same
general responsibilities as the licensed maintenance mechan-
ical engineer, except that instead of performing the ‘‘me-
chanical maintenance’’ duties noted in items (e) and (f)
above, they perform routine electrical maintenance, such as
the replacement or alteration of circuit wiring, switches, con-
trol equipment and mechanisms, motors, transformers, relays,
generators, appliances, fixtures, alarms, and communication
equipment, and general electrical maintenance of hospital and
clinic equipment, kitchen equipment, and office machines
and equipment.
Although the above described job descriptions would ap-
pear on their face to distinguish the type of duties performed
by the six maintenance mechanics as opposed to the three li-
censed engineers, testimony in the record reveals that all of
the petitioned-for employees perform essentially the same
function, i.e., maintaining the physical plant utilities and
services of the Employer, including boilers, heating, ventila-
tion, refrigeration, and air-conditioning systems, communica-
tions equipment, motorized beds and doors, and other ma-
chinery equipment in the Employer’s facility. In addition to
performing routine periodic inspections to make sure that the
equipment is running properly, the petitioned-for employees
make repairs when determined to be necessary, either
through inspection or in response to a work order received
from another department. In performing these duties, the pe-
titioned-for employees do plumbing and elctrical work, weld-
ing, carpentry, and other functions associated with maintain-
ing the Employer’s machinery and equipment. They work
with tools commonly used in performing such work, includ-
ing welding equipment, brazing torches, ampeters, ohm-
meters, and voltmeters. Because the Employer’s heating, air-
conditioning, and telephone systems are computerized, the
petitioned-for employees must also have some familiarity
with computers. One of the maintenance mechanics is also
responsible for making the Employer’s signs by utilizing an
engraving machine and a vinyl signmaking machine.
The petitioned-for employees have also performed other
assigned tasks, including the renovation of office space,
which may involve the construction of walls and electrical
wiring. They have also responded to fire alarms, controlled
traffic, and assisted with groundskeeping during major events
several times a year, served as messengers or delivery per-
sons, and serviced copy machines. Finally, one maintenance
mechanic spends about 15–20 minutes per day going to the
post office to pick up and deliver the Employer’s mail.
Thus, the record reflects that the primary distinction be-
tween the maintenance mechanics and the licensed engineers
are their job qualifications. In this regard, the maintenance
mechanics are required to be high school or trade school
graduates with basic experience in electrical, plumbing, heat-
ing, cooling, carpentry, and similar work related to mainte-
nance systems in medium to large plant facilities. However,
two of the maintenance mechanics did not graduate high
school, although one of them possessed heating, ventilation,
and air-conditioning experience from prior employment. In
addition, although three of the maintenance mechanics appar-
ently possessed no special skills at the time they were hired,
two of them have worked for the Employer as maintenance
mechanics for more than 9 years and have received training
on the job. Although the third employee has only been em-
ployed by the Employer as a maintenance mechanic for 6
months, the record revealed no evidence that he does not
perform the same or similar duties as the remaining employ-
ees in the petitioned-for unit. Because the maintenance me-
chanics are not required to possess any specific license, they
must perform work which would otherwise be done by a li-
censed engineer under the direct supervision of the plant en-
gineer.
1402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The record is ambiguous regardind the duties performed by the
petitioned-for employees on those rare occasions when they fill in
for an absent security officer. While it appears that they may direct
traffic, assist the switchboard operator in evicting an unruly visitor,
or make rounds to ensure that doors are locked, there is no evidence
that they are responsible for enforcing the Employer’s rules against
employees or other persons, or that they routinely perform guard du-
ties as defined in the Act. Since no party contends that any of the
employees in the petitioned-for unit are guards within the meaning
of the Act, I make no finding on this issue at this time.
The two licensed maintenance mechanical engineers, how-
ever, each of whom worked for the Employer as maintenanc
mechanics, possess D2 licenses issued by the State of Con-
necticut. One employee obtained his license after completing
an apprenticeship program run by the Employer. The li-
censed maintenance electrical engineer, who began his em-
ployment on October 5, 1992, possesses an E2 license, also
issued by the State of Connecticut. The record is silent re-
garding the requirements for obtaining such licenses and the
benefits associated with having them, other than the apparent
ability to independently perform plumbing, mechanical, and
electrical work.
In contrast to the specialized skills and functions of the
employees in the petitioned-for unit, the Local 1224 unit em-
ployees in the environmental services department perform
unskilled janitorial and housekeeping tasks such as sweeping,
mopping and waxing floors, dusting furniture, and emptying
trash receptacals. Although these employees may clean and
lube equipment such as floor buffers before starting their job,
more technical repair or maintenance work needed on such
equipment must be reported to supervision to be performed
by employees in the petitioned-for unit. The relatively un-
skilled nature of the work performed by the employees in the
environmental services department is demonstrated by the
fact that a high school diploma is not required of applicants
for these positions. Although under the overall supervision of
Houle, the Employer’s vice president, employees in the envi-
ronmental services department report to different supervisory
structure, including environmental services supervisors, an
assistant director, and a director of environmental services.
Thus, Director of Plant Operations Moody, who supervises
the employees in the petitioned-for unit, has no supervisory
authority over any employees in the environmental services
department.
All of the Employer’s employees, except ward clerks,
wear uniforms which differ in color according to job classi-
fication. The petitioned-for employees wear dark blue pants
and light blue shirts with name tags. Security officers also
wear blue uniforms, but of a different shade. Employees in
the environmental services department, who, as noted above,
perform housekeeping functions, wear green uniforms, while
dietary and nursing employees wear traditional white uni-
forms.
All of the Employer’s employees share the same benefits
with the exception of a pension plan and a legal services
plan which are available only to employees in the Local
1224 unit. However, the petitioned-for employees are cov-
ered by the Employer’s pension plan. The wages paid to the
petitioned-for employees vary from those received by Local
1224 unit employees. More specifically, under the current
collective-bargaining agreement between the Employer and
Local 1224, dietary, housekeeping, and laundry employees
are paid between $11.20 and $11.45 per hour, depending on
length of service, while nurses aides, orderlies, and ward
clerks are paid between $11.20 and $11.60 per hour, also
based on length of service. The three licensed maintenance
engineers are paid on a salary basis at a rate equivalent to
$11.75 and $12.02 per hour, which is clearly higher than any
employee covered by the collective-bargaining agreement.
However, two of the maintenance mechanics receive hourly
wages which are slightly higher than the Local 1224 unit em-
ployees, one receives an hourly wage equivalent to the low-
est rate in the Local 1224 unit, and the remaining three
maintenance mechanics are paid between $9.85 and $11.03
per hour, which is clearly less than any Local 1224 unit em-
ployee. The wages paid to the Employer’s other unrepre-
sented employees vary widely because of the diversity of
skills and classifications in the group. Thus, professional em-
ployees such as registered nurses, social workers, phar-
macists, and the licensed practical nurses, are paid substan-
tially more than even the licensed maintenance engineers. On
the other hand, some lesser-skilled staff involved in patient
care, such as physical therapy aides, recreation aides, and
adult day care staff, receive wages approximately equivalent
to the maintenance mechanics. Only relatively unskilled, un-
represented employees, such as homemakers, receive sub-
stantially less than any of the maintenance mechanics.
The record reveals very little evidence of any significant
interchange between employees in the plant operations and
maintenance department and the Employer’s other employ-
ees. Such interchange is limited to incidental contact while
the petitioned-for employees are performing maintenance and
repair functions, and communication between the petitioned-
for employees and other employees necessary to make re-
pairs on equipment utilized by the other employees. In addi-
tion to such incidental contact, the record reveals that several
times a year the petitioned-for employees may work along-
side employees in the environmental services department in
preparation for and during major events at the facility. There
is also evidence that, on rare occasions, an employee in the
petitioned-for unit has filled in for an absent security officer
when no other security officer was available.6 In contrast,
there is no evidence that any employees outside the plant op-
erations and maintenance department have substituted for the
petitioned-for employees. Moreover, the record reveals that
there have been no transfers of employees between the plant
operations maintenance department and any other depart-
ment. However, maintenance mechanics have been promoted
to licensed engineers within the plant operations and mainte-
nance department.
Based on the above and the record as a whole, and uti-
lizing the pragmatic approach adopted by the Board in Park
Manor Care Center, 305 NLRB 872 (1991), I find that a unit
limited to the maintenance mechanics, licensed maintenance
mechanical engineers, and licensed maintenance electrical en-
gineer employed in the Employer’s plant operations and
maintenance department is an appropriate unit for the pur-
poses of collective bargaining. More particularly, I note the
unique functions performed by these employees, the special-
ized skills possessed and utilized by the employees in car-
rying out their assigned duties, and the separate supervision
from, and lack of interchange with, the Employer’s other em-
ployees. Although the wages and benefits received by em-
ployees in the petitioned-for unit are comparable to those re-
1403HEBREW HOME & HOSPITAL
7 The record reveals that the administrative assistant in the plant
operations department coordinates the work order system, answers
phones, and provides general administrative support for the depart-
ment. She works in the plant operations office and is supervised by
the director of plant operations. She possesses skills commonly asso-
ciated with other clerical employees. Her duties are very similar to
those of other unrepresented administrative assistants and secretaries
in the Employer’s other departments. No party is seeking her inclu-
sion in the petitioned-for unit. Accordingly, I conclude that her com-
munity of interests lies with other unrepresented clerical employees
rather than the skilled maintenance employees in the unit found ap-
propriate herein, and shall exclude her. See Jewish Hospital of St.
Louis, supra; Ingalls Memorial Hospital, 309 NLRB 393 (1992);
Barnes Hospital, supra.
ceived by the Employer’s represented employees and many
of its other unrepresented employees, this factor is out-
weighed by the other factors, discussed in more detail below,
indicating that separate representation is appropriate. See Al-
legheny General Hospital, 239 NLRB 872 fn. 65 (1978), cit-
ing American Cyanamid Co., 131 NLRB 909 (1961).
In making my determination herein, I have considered the
evidence obtained by the Board during its rulemaking pro-
ceedings and find that many of the characteristics associated
with separate skilled maintenance units in acute care hos-
pitals are present here, albeit on a smaller scale. Thus, the
petitioned-for employees perform functions apart from those
of the unskilled employees in the environmental service de-
partment in that they deal with highly complex and sophisti-
cated systems and equipment. The petitioned-for employees,
like skilled maintenance employees in acute care hospitals,
are generally engaged in the operation, maintenance, and re-
pair of the Employer’s physical plant systems, although they
occasionally do routine, unskilled work. In this regard, and
contrary to the Employer’s contention the performance of
such ‘‘unskilled’’ work by members of a ‘‘skilled’’ mainte-
nance unit does not preclude the appropriateness of such a
unit. See Collective Bargaining in the Health Care Industry,
Second Notice of Proposed Rulemaking, 284 NLRB 1528,
1557 (1988); McLean Hospital Corp., 309 NLRB 564
(1992).
Moreover, the petitioned-for employees possess specialized
skills acquired through either education, work experience, or
on-the-job training, which are different in nature than those
possessed by the Employer’s other employees. Thus, contrary
to the Employer’s contention, the fact that most or all of the
maintenance mechanics lack any formal training or licenses
does not preclude their inclusion in a separate skilled mainte-
nance unit so long as they actually perform skilled mainte-
nance work, fill the position of a trainee, or serve as helpers
or assistants to skilled maintenance employees in the per-
formance of their work. See Barnes Hospital, 306 NLRB
201 (1992).
In addition, as in acute care hospitals, the Employer’s
plant operations and maintenance department employees are
separately supervised, and have only brief, limited, and inci-
dental contact with other employees. I also note the lack of
transfers between this department and others in the Employ-
er’s facility as demonstrating the different labor market and
career paths for these employees. Thus, employees hired into
the plant operations and maintenance department have expe-
rience outside the health care industry and possess skills
which can be utilized in various other industries. Collective-
Bargaining Units in the Health Care Industry, Second Notice
of Proposed Rulemaking, supra at 1556–1562. Finally, as
noted by the Board in applying the rule, the distinguishing
feature of skilled maintenance employees is their work on
systems and equipment as opposed to involvement in direct
patient care. Jewish Hospital of St. Louis, 305 NLRB 955
(1991). This clearly distinguishes the employees in the peti-
tioned-for unit from the Employer’s other employees.
I have also considered relevant precedent in applying the
Park Manor test to the facts herein. Thus, the Board has
found separate units of skilled maintenance employees appro-
priate in a nursing home where the facts reveal that such em-
ployees possess a sufficiently separate community of interest
to justify their own unit. Hebrew Rehabilitation Center, 230
NLRB 255 (1977). See also McLean Hospital Corp., supra
(separate skilled maintenance unit found to be appropriate in
a psychiatric hospital). Cf. Four Seasons Nursing Center of
Joliet, 208 NLRB 403 (1974) (separate maintenance unit at
small nursing home inappropriate where maintenance em-
ployees performed only unskilled cleaning and maintenance
duties with major repair work contracted out). Moreover, I
find Levine Hospital, 219 NLRB 327 (1975), cited by the
Employer in its posthearing brief, to be distinguishable. In
dismissing a petition for a separate unit of medical records
clerks and transcribers, the Board in Levine noted that peti-
tioned-for employees were few in number and performed
work which was functionally related to the work performed
by union represented services and maintenance employees,
and identical to work performed by other hospital clerical
employees. In contrast, the work performed by the employ-
ees in the petitioned-for unit is unique and not functionally
integrated with that of the Employer’s other employees.
Finally, I have considered Congress’ admonition to avoid
proliferation of bargaining units in the health care industry
and have concluded that a separate skilled maintenance unit
here will not result in undue proliferation, for the same rea-
sons the Board concluded that similar units in acute care hos-
pitals did not result in undue proliferation. I also note that
approximately half of the Employer’s employees are already
represented in a broad unit and that no union seeks to rep-
resent these employees as part of a larger unit. Moreover,
many of the Employer’s other unrepresented, nonsupervisory
employees are professional employees and guards who would
be entitled to separate representation under Section 9(b) of
the Act.
Accordingly, based on the above and the record as a
whole, I find that the following employees of the Employer
constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time skilled mainte-
nance employees employed in the Employer’s Plant
Operations and Maintenance Department, including
Maintenance Mechanics, Licensed Maintenance Me-
chanical Engineers and Licensed Maintenance Electrical
Engineers, but excluding the Director of Plant Oper-
ations, the Plant Engineer, the Administrative Assistant-
plant operations,7 all other employees, and guards, pro-
fessional employees and supervisors as defined in the
Act.